Iannone v. Autozone, Inc.
Iannone v. Autozone, Inc.
2022 WL 18142395 (W.D. Tenn. 2022)
March 10, 2022

Pham, Tu M.,  United States Magistrate Judge

Manner of Production
Third Party Subpoena
Protective Order
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Summary
Prudential agreed to produce documents by March 18, 2022, including Rule 404a-5 disclosures, annual reports, invoices, billing revenue reports, and an ERISA expense account reconciliation report. Additionally, Prudential produced documents on February 19, 2021, June 4, 2021, November 29, 2021, February 18, 2022, and February 23, 2022, based on a search and review of ESI collected from two custodians from January 2013 to January 2022.
Additional Decisions
MICHAEL J. IANNONE, JR., and NICOLE A. JAMES, individually and on behalf of all others similarly situated, Plaintiffs,
v.
AUTOZONE, INC., et al., Defendants
No. 2:19-cv-02779-MSN-tmp
United States District Court, W.D. Tennessee, Western Division
Signed March 10, 2022

Counsel

James H. White, IV, Pro Hac Vice, James White Firm, LLC, Birmingham, AL, Lange Clark, Pro Hac Vice, Law Office of Lange Clark, P.C., Birmingham, AL, Dennis George Pantazis, Jr., Wiggins Childs Pantazis Fisher & Goldfarb, LLC, Birmingham, AL, for Plaintiff Michael Iannone.
Dennis George Pantazis, Jr., Wiggins Childs Pantazis Fisher & Goldfarb, LLC, Birmingham, AL, for Plaintiff Nicole A. James.
Brian T. Ortelere, Pro Hac Vice, Jeremy P. Blumenfeld, Pro Hac Vice, Emily Reineberg, Pro Hac Vice, Morgan Lewis & Bockius LLP, Philadelphia, PA, Abbey M. Glenn, Pro Hac Vice, Morgan, Lewis & Bockius LLP, Washington, DC, David A. Thornton, John S. Golwen, Jonathan Edward Nelson, Bass Berry & Sims PLC- Memphis, Memphis, TN, for Defendants AutoZone Inc., Bill Giles, Brian Campbell, Steve Beussink, Kristin Wright, Michael Womack, Kevin Williams, Rick Smith.
David Tetrick, Danielle Chattin, Darren Shuler, King & Spalding, Atlanta, GA, Amanda Ann Sonneborn, Pro Hac Vice, King & Spalding, Chicago, IL, John L. Ryder, Patrick G. Walker, Harris Shelton Hanover Walsh PLLC, Memphis, TN, for Defendants Northern Trust Corporation, Northern Trust, Inc.
Pham, Tu M., United States Magistrate Judge

ORDER REGARDING PLAINTIFFS' MOTION TO COMPEL

*1 Before the Court is Plaintiffs’ Motion to Compel Non-Party Prudential Retirement Insurance and Annuity Company to Comply with Subpoena (Dkt. 112, “Motion”), which seeks production of documents in connection with a subpoena that Plaintiffs have served on Prudential (the “Subpoena”). The Court finds and orders as follows with regard to the Motion:
1. As discussed at the status hearing on March 4, 2022, three categories of documents remain at issue: (i) documents containing fund balances and related information for AutoZone, Inc.’s 401(k) plan (the “Plan”); (ii) documents relating to stable value products furnished by Prudential to certain other defined contribution plans; and (iii) documents containing certain fee and expense information for the Plan—namely, documents showing actual expenses paid by the Plan to Prudential, including the source of those payments (i.e., direct compensation or revenue sharing) and a description of the reason(s) for those payments.
2. As to the first category of documents, Plaintiffs have requested Prudential to produce monthly, quarterly, and annual reports of fund balances and related information. Prudential is able to produce annual trustee reports from 2013 through 2021, showing fund balances and related information for the AutoZone Plan. Prudential produced these documents on March 8, 2022, and they are designated as “confidential” pursuant to the Protective Order (Dkt. 64, 169, 174). Plaintiffs seek documents that show such information on a monthly or quarterly basis, in addition to annually, but Prudential has represented that it cannot feasibly supply any such information. As discussed at the March 4, 2022 status hearing, Prudential has agreed to provide Plaintiffs with a detailed affidavit by March 18, 2022 sufficient to confirm that Prudential does not have any documents that contain such information based on a reasonable search (apart from any such documents that may have already been included in Prudential's prior productions, described in paragraph 5 below) and that it cannot reasonably generate accurate reports or other documents that provide such information for all of the period in question (2013 to present). Upon provision of such an affidavit, Prudential will not be required to provide monthly and quarterly reports and will only be required to provide the annual trustee reports (which Prudential has already produced), and the dispute over this category of documents will be resolved.
3. As to the second category of documents, and as further discussed at the March 4, 2022 status hearing, given the unique circumstances of the dispute at issue, Prudential is directed to produce all of the Rule 404a-5 disclosures (i.e., disclosures provided by Prudential that were intended to satisfy the disclosure obligation to provide “investment-related information” at least annually as set forth in 29 C.F.R. § 2550.404a-5(d)) from 2010 to 2021, to the extent they exist,[1] showing Prudential Guaranteed Interest Fund (“GIF”) rates for the 11 versions of the GIF referenced in Plaintiffs’ Motion by March 18, 2022. Prudential represents that the remaining 18 of the 29 funds identified by Plaintiffs are not versions of the GIF. These documents will be designated as “Confidential” under the Protective Order.
*2 4. As to the third category of documents, Prudential has agreed to produce: (i) annual reports used to prepare Schedule C of Form 5500 for the Plan from 2013 through 2020 (in PDF format, as the reports are maintained in the ordinary course of business); (ii) Prudential's invoices to AutoZone from 2013 through 2022 (in PDF format, as the invoices are maintained in the ordinary course of business); (iii) billing revenue reports for the Plan for 2013 through 2021 (in Excel format); and (iv) an ERISA expense account reconciliation report covering 2013 through 2021 (in Excel format). Prudential produced these documents on March 8, 2022, and they were designated as “confidential” pursuant to the Protective Order. The Court defers ruling on this category of documents until Plaintiffs have had an opportunity to review this production of materials.
5. In addition, Prudential produced documents on February 19, 2021, June 4, 2021, November 29, 2021, February 18, 2022, and February 23, 2022, including relevant, non-privileged documents based on a search and review of electronically stored information (“ESI”) collected from two custodians from January 2013 to January 2022 using as search terms the AutoZone email addresses of Steve Beussink, Brian Campbell, Bill Giles, Kristen Wright, Michael Womack, Kevin Williams, Matthew Harmon, Rick Smith, and Pamela Samuels-Kater. Plaintiffs represented at the hearing that this production satisfies their request for ESI, and, therefore, that this issue is resolved.
6. Plaintiffs agree that, except as to the category of documents described in paragraph 4 above, and subject to Prudential's provision of an affidavit as described above in paragraph 2 and provision of documents as described above in paragraph 3, the issues raised by Plaintiffs’ Motion to Compel have been resolved. Plaintiffs’ Motion shall remain UNDER ADVISEMENT and subject to further order of the Court until the remaining issues identified herein have been resolved. The parties are to consult with the Case Manager for a date and time during the week of March 21, 2022. Witness for Prudential may appear by video. Attorneys for AutoZone may also appear by video. The parties are encouraged to resolve any outstanding issues and shall notify the Case Manager promptly upon such resolution and may, at that time, request cancellation of the hearing.
IT IS SO ORDERED this 10th day of March, 2022.

Footnotes

As Prudential noted in its Opposition to Plaintiffs’ Motion to Compel (Dkt. 141), Rule 404a-5 disclosures may not exist for all years in this period because the requirements in Rule 404a-5 apply to covered individual account plans only for plan years beginning on or after November 1, 2011. See 29 C.F.R. §§ 2550.404a-5(j).