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Muldrow v. City of St. Louis

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

October 30, 2019

JAYTONA MULDROW, Plaintiff,
v.
CITY OF ST. LOUIS, et al., Defendants.

          MEMORANDUM & ORDER

          AUDREY G FLEISSIG UNITED STATES DISTRICT JUDGE.

         This 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.

         BACKGROUND

         Plaintiff 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, 2019.

         Now, Plaintiff brings this motion to compel the production of two emails, [1] 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.

         Email 2 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 discrimination.

         Plaintiff 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.

         Defendants 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 advice.

         On 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.

         DISCUSSION

         “Parties 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)).

         A 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 corporate structure.

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, ...


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