United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM & ORDER
G FLEISSIG UNITED STATES DISTRICT JUDGE.
matter is before the Court on Plaintiff Jaytona Muldrow's
motion to compel. ECF Nos. 22, 23. Defendants City of St.
Louis (“City”) and Michael Deeba, Plaintiff's
former supervisor, oppose the motion. ECF No. 24. On October
16, 2019, the Court granted Plaintiff's request for an
in camera review of the emails at issue. Upon due
consideration, the motion to compel will be denied.
filed this lawsuit in Missouri state court, asserting
discrimination on the basis of gender (female), in violation
of Title VII and the Missouri Human Rights Act, and
retaliation. Defendants removed the action to federal court,
and the Court entered a Case Management Order on February 26,
Plaintiff brings this motion to compel the production of two
emails,  which Defendants have withheld from
production, asserting that they are work product and/or
protected by the attorney-client privilege. Based upon its
in camera review, it appears that Email 1 was is a
forwarded message sent by Deeba to Lieutenant Joe Morici, in
which Deeba is requesting information to assist the
City's attorney respond to Plaintiff's Charge of
Discrimination. The forwarded message contains an email
exchange between Deeba and the City's attorney with the
specific questions that require an answer.
was sent to Deeba by the Executive Aide to the Police
Commissioner. The attorney manager of the Police
Division's legal department is copied on the email, and
the email is alerting Deeba that he will need to meet with
the copied attorney about Plaintiff's charge of
filed this motion to compel Emails 1 and 2, asserting that
they must be produced because, based on the description of
the emails in Defendants' privilege log, privilege does
not attach or was waived. Specifically, Plaintiff argues that
neither the attorney-client or work product privileges is
available for Email 1 because it is not a communication
between a client and attorney. Plaintiff further argues that
Morici is not named in the charge of discrimination, and it
is thus unlikely that any communications with him would be
protected. Plaintiff also speculates that the contents of the
email could include comments by Deeba that would tend to
prove Plaintiff's claims of retaliation. Plaintiff
further argues that if attorney-client privilege attaches to
any portion of the contents of Email 1, that privilege was
waived when Deeba forwarded the email to Morici. Lastly, with
regard to Email 2, Plaintiff argues that the email is not
privileged merely because it copies an attorney, and
Plaintiff maintains that Defendants has not offered enough
information to show that the privilege attaches.
generally contend that all communications exchanged after
they received notice that Plaintiff intended to sue them for
discrimination are work product. Further, Defendants argue
that Email 1 contains a communication between an attorney and
a client referencing to potential litigation, and the
communication between Deeba and Morici is work product
because it is a document prepared by a party in anticipation
of litigation. As to Email 2, Defendants claim that it is
protected by attorney-client privilege because it is a
communication among clients and an attorney, which references
anticipated litigation and was made in order to secure legal
October 16, 2019, the Court determined that an in
camera review was necessary to determine whether
Defendants properly withheld Emails 1 and 2 from discovery.
ECF No. 26. It directed Defendants to produce to the Court
those documents, and Defendants timely complied.
may obtain discovery regarding any nonprivileged matter that
is relevant to any party's claim or defense.”
Fed.R.Civ.P. 26(b)(1). “The attorney-client privilege
affords a client the right to refuse to disclose
‘communications between attorney and client made for
the purpose of obtaining legal advice.'” Carr
v. Anheuser-Busch Cos., 791 F.Supp.2d 672, 674 (E.D. Mo.
2011) (quoting In re United States, 590 F.3d 1305,
1309 (Fed. Cir. 2009)).
municipality may assert the attorney-client privilege in
civil proceedings, and principles of corporate
attorney-client privilege are applied to municipal employee
communications. See Criswell v. City of O'Fallon,
Mo., No. 4:06CV01565 ERW, 2008 WL 250199, at *2 (E.D.
Mo. Jan. 29, 2008) (“The Court sees no reason why
conversations with an attorney, employed on behalf of a
municipality, would not be subject to the attorney-client
privilege, when all other requirements of the privilege are
met.”); see also Ross v. City of Memphis, 423
F.3d 596, 600-601, 603 (6th Cir. 2005).
When considering whether communications made by an employee
or agent are privileged, the Eighth Circuit has held the
attorney-client privilege applies if: (1) the communication
was made for the purpose of securing legal advice; (2) the
employee making the communication made it at the direction of
his corporate supervisor; (3) the supervisor's request
was made for the purpose of securing legal advice for the
corporation; (4) the subject matter of the communication was
within the scope of the employee or agent's corporate
duties; and (5) the communication was not disseminated beyond
those individuals who needed to know its contents due to the
Jo Ann Howard & Assocs., P.C. v. Cassity, No.
4:09CV01252 ERW, 2012 WL 2396423, at *3 (E.D. Mo. June 25,
2012) (citing In re Bieter Co.,16 F.3d 929, ...