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Gillespie v. Charter Communications

United States District Court, E.D. Missouri, Eastern Division

September 24, 2015

CEDRIC GILLESPIE, Plaintiff,
v.
CHARTER COMMUNICATIONS, et al., Defendants

Page 1196

          For Cedric Gillespie, Plaintiff: Megen I. Hoffman, Richard Andrew Barry, III, LEAD ATTORNEYS, LAW OFFICES OF RICK BARRY, P.C., St. Louis, MO.

         For Charter Communications, LLC, Defendant: Krissa P. Lubben, Roy N. Williams, LEAD ATTORNEYS, THOMPSON COBURN, LLP, St. Louis, MO.

Page 1197

         MEMORANDUM AND ORDER

         AUDREY G. FLEISSIG, UNITED STATES 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 Plaintiff's 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 Plaintiff's 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 Plaintiff's requests. One is a document detailing an anonymous complaint made to Charter's EthicsPoint

Page 1198

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 ...


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