United States District Court, E.D. Missouri, Eastern Division
Cedric Gillespie, Plaintiff: Megen I. Hoffman, Richard Andrew
Barry, III, LEAD ATTORNEYS, LAW OFFICES OF RICK BARRY, P.C.,
St. Louis, MO.
Charter Communications, LLC, Defendant: Krissa P. Lubben, Roy
N. Williams, LEAD ATTORNEYS, THOMPSON COBURN, LLP, St. Louis,
G. FLEISSIG, UNITED STATES DISTRICT JUDGE.
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
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.
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.
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
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
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.
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, 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