Gillespie v. Charter Communications

133 F. Supp. 3d 1195, 92 Fed. R. Serv. 3d 996, 2015 U.S. Dist. LEXIS 128185, 2015 WL 5638055
CourtDistrict Court, E.D. Missouri
DecidedSeptember 24, 2015
DocketCase No. 4:14CV00207 AGF
StatusPublished
Cited by5 cases

This text of 133 F. Supp. 3d 1195 (Gillespie v. Charter Communications) is published on Counsel Stack Legal Research, covering District Court, E.D. Missouri primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Gillespie v. Charter Communications, 133 F. Supp. 3d 1195, 92 Fed. R. Serv. 3d 996, 2015 U.S. Dist. LEXIS 128185, 2015 WL 5638055 (E.D. Mo. 2015).

Opinion

MEMORANDUM AND ORDER

AUDREY G. FLEISSIG, District Judge.

This matter is before the Court on the motion of Plaintiff Cedric Gillespie (Doc. No. 60) to compel Defendant Charter Communications’ (“Charter”) production of documents without an “Attorneys’ Eyes Only” designation. For the reasons stated below, this motion shall be granted.

BACKGROUND

On December 11, 2013, Plaintiff filed suit against his employer, Charter, and his supervisors Robert Sewell and Richard Sturck, alleging that he was discriminated against on the basis of his race and his membership in the military. Plaintiff initially filed his petition in state court, stating claims for racial discrimination and retaliation under the Missouri Human Rights Act (“MHRA”), and for prejudicial employment actions based on Plaintiffs membership in the military under the Uniformed Services Employment and Reemployment Rights Act (“USERRA”). On February 6, 2014, Charter removed the action pursuant to this Court’s federal question jurisdiction, under 28 U.S.C. § 1331. In its notice of removal, Charter asserted that the Court had supplemental jurisdiction over Plaintiffs state law MHRA claims, pursuant to 28 U.S.C. § 1367.

On February 16, 2015, the parties filed a joint motion for a protective order (Doc. No. 53.) The Court entered the consent protective order on February 17, 2015. (Doc. No. 54.) The protective order permits parties to mark documents they produce as “confidential” if they have a good faith belief that the documents contain either trade secrets, or proprietary or sensitive business, personal, or financial information. Documents marked as “confidential” may only be disclosed to parties’ counsel, agents and employees of Charter, Plaintiff, the Court and its staff, relevant witnesses, court reporters employed for the purposes of recording depositions, and the jury.

During discovery, Plaintiff requested information and documents relating to internal complaints filed within Charter, alleging that Charter or any Defendant discriminated or retaliated against an employee on the basis of race or membership in the military. On or about April 14, 2015, Charter identified two documents responsive to Plaintiffs requests. One is a document detailing an anonymous complaint made to Charter’s Eth-[1198]*1198icsPoint system, which allows employees to report unethical or illegal conduct they observe. The complaint related to alleged prior racial discrimination by Defendant Robert Sewell. The other document identified by Charter is an internal “Incident Investigation Report,” which details Charter’s investigation of the claims made in the EthicsPoint complaint.

Charter indicated that it would produce these two documents only if Plaintiff agreed to stipulate that the production would not constitute a waiver of Charter’s attorney-client or work product privileges, and only if Plaintiff agreed to the documents being produced with an “Attorneys’ Eyes Only” designation. (Doc. No. 60-3.) Charter claimed that the attorney-client and work product privileges apply to the documents because they were prepared at the direction of Charter’s counsel. Charter subsequently communicated to Plaintiff that it sought the “Attorneys’ Eyes Only” .designation because it is Charter’s policy to keep the persons involved in, and the contents of, any EthicsPoint complaint confidential, and that Charter had concerns about maintaining this confidentiality as Plaintiff is currently employed by Charter.

On May 14, 2015, Plaintiff filed the present motion to compel Charter to produce the two documents it identified, without an “Attorneys’ Eyes Only” designation. Plaintiff argues that, under either federal or Missouri law,1 the documents in question are not protected by the attorney-client privilege. Plaintiff cites state and federal cases for the proposition that internal investigative reports are not protected by the attorney-client privilege just because legal counsel was involved in the investigation. Plaintiff argues that Charter’s investigation was done in the ordinary course of business and was not prepared for the purpose of seeking legal advice.

Likewise, Plaintiff argues that the documents do not constitute work product protected by Federal Rule of Civil Procedure 26(b)(3), because they were prepared in the ordinary course of business rather than in anticipation of litigation or for trial. Plaintiff also argues that the documents in question do not contain any attorney mental impressions or similar notes. Further, Plaintiff argues that, even if the Court finds that the documents constitute protected work product, Plaintiff has made the required showing that he has a substantial need for the documents to demonstrate that Charter has a pattern and practice of discrimination, and that Plaintiff cannot obtain the substantial equivalent of this material through other means. Plaintiff contends that the subject matter of the EthicsPoint complaint is nearly identical to Plaintiffs claims in this case, and that his need for such relevant information should overcome any alleged work product privilege.

Finally, Plaintiff argues that Charter’s designation of the documents as “Attorneys’ Eyes Only” is unnecessary, in light of the protective order already entered in this case, and would prejudice Plaintiffs ability to prosecute his claims. Specifically, Plaintiff argues that the “Attorneys’ Eyes Only” designation is generally only used in the context of patent, trademark, or copyright infringement cases, to protect a party from inadvertent disclosure of confidential information that would impact the party’s commercial competitive advantage. Here, Plaintiff argues that the information at issue is not of the type generally protected by such a designation, and that [1199]*1199Charter may instead label the documents “confidential,” which would adequately protect them from disclosure or use outside the scope of the present litigation. Plaintiff argues that only allowing his counsel to view these documents would prevent them from conferring about the contents of the documents to prepare for deposition and trial, impairing Plaintiffs ability to prosecute his case.

In response, Charter argues first that federal law should govern Plaintiffs motion, as one count of Plaintiffs complaint contains a federal cause of action and Charter removed the case pursuant to the Court’s federal question jurisdiction. Charter then contends that it is not withholding the documents at issue, since it has agreed to produce them with an “Attorneys’ Eyes Only” designation, and that therefore, all of the cases cited to by Plaintiff are inapposite.

Charter argues that the incident report is privileged2 because it was created by Charter’s Director of Human Resources at the direction of, and following a process instituted by, Charter’s compliance team, which includes three in-house attorneys. Charter provides no facts as to the overall size of the compliance team, nor to the composition of its remaining members. Charter cites extensively to a case from the Eastern District of New York for the proposition that “factual investigations conducted by an agent of the attorney, such as gathering statements from employees, clearly fall within the attorney-client rubric.”

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133 F. Supp. 3d 1195, 92 Fed. R. Serv. 3d 996, 2015 U.S. Dist. LEXIS 128185, 2015 WL 5638055, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gillespie-v-charter-communications-moed-2015.