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Desai v. Charter Communications, LLC

United States District Court, W.D. Kentucky, Louisville Division

January 4, 2018

KRUTI DESAI, et al., Plaintiffs,


          David J. Hale, Judge United States District Court.

         Plaintiffs Kruti Desai, Melanie B. Fink, Belinda Gale Parkerson, Jeremy Parkerson, Daniel Popp, James Ross, and Carolyn Vincent are former employees of Defendant Charter Communications, LLC who were fired for accepting free computer printers offered to them by Charter's office-supply administrator. This action arises from a Charter employee's use of the term “Printer-gate” during a PowerPoint presentation to other employees after Plaintiffs' termination. Plaintiffs assert that Charter defamed them by implying that they engaged in illegal activity.

         Charter has moved for summary judgment on Plaintiffs' remaining claim. (Docket No. 89) In connection with the briefing on the summary-judgment motion, Magistrate Judge Dave Whalin granted Plaintiffs' motion to unseal an investigative report that Charter claims is privileged and denied Charter's motion to strike certain affidavits submitted in support of Plaintiffs' summary-judgment response.[1] (D.N. 104) Charter objected to that ruling. (D.N. 105) For the reasons explained below, the Court will overrule Charter's objection and deny Charter's motion for summary judgment.

         I. BACKGROUND

         The facts underlying this case are largely undisputed. Plaintiffs worked at Charter's call center in Louisville, Kentucky, in various capacities. Each was given a Hewlett-Packard (HP) computer printer by Linda Showalter, an administrative assistant at Charter. Plaintiffs maintain that they believed Showalter's distribution of printers was authorized by management. Charter, however, considered Plaintiffs' acceptance of the printers to be a violation of its policy against removing company property without authorization, and it terminated most of the employees involved.

         Approximately one month after Plaintiffs were fired, Charter Human Resources Manager Rodger Simms gave a PowerPoint presentation during a Charter leadership conference. On a slide with the heading “Leadership and Judgment, ” Simms referred to “‘Operation . . . ' Green-light, Buzz-kill, Printer-gate.” (D.N. 90-3, PageID # 1984 (ellipsis in original)) He encouraged employees to “[a]ct with Integrity and Character.” (Id.) The notes for Simms's oral presentation accompanying the slide state: “Let's get the elephant in the room out in the open, how many of you have heard of . . . Operation codes for things that weren't right! All examples of poor judgment. Not bad people, people we know and love but they made the wrong choices.” (Id. (ellipsis in original)) Simms emphasized the importance of “integrity, ” “character, ” and having “the courage to do the right thing.” (Id.) He also warned that “[k]nowing something isn't right and allowing it to continue is the same as you doing it!” (Id., PageID # 1985) “Green-light” referred to an incident in which a Charter employee used a company credit card for personal benefit and was terminated as a result. (D.N. 89-3, PageID # 1539-40) “Buzz-kill” involved the sale of illegal drugs on Charter property by Charter employees; those employees were also terminated. (Id., PageID # 1540; D.N. 90-5, PageID # 1991-92)

         Plaintiffs sued Charter for defamation on the ground that “Charter made false statements alleging misconduct on the part of the Plaintiffs relating to the . . . distribution of Hewlett-Packard ink jet printers, including but not limited to the [PowerPoint] presentation.”[2] (D.N. 7, PageID # 51) They contend that the use of the term “Printer-gate, ” particularly in conjunction with references to employee theft and drug-dealing, implied that their actions were criminal. (See D.N. 90, PageID # 1961-63) Charter seeks summary judgment on the grounds that “Printer-gate” is not defamatory and that any implication of wrongdoing by Plaintiffs was true.[3] (D.N. 89; D.N. 89-1)

         II. ANALYSIS

         Although the motion for summary judgment was filed first, the Court will begin with Charter's objection, which potentially eliminates certain evidence from consideration for summary-judgment purposes. Plaintiffs responded to Charter's objection (D.N. 106), again ignoring Local Rule 72.2, which provides that “[u]nless directed by the Court, no party may file any response to a written objection” to a nondispositive ruling. (See D.N. 81, PageID # 1426 & n.4 (noting Plaintiffs' failure to observe LR 72.2 in connection with Charter's earlier objection)) As the response violates LR 72.2 and the parties were previously admonished that such filings are improper, the Court will disregard both Plaintiffs' response and Charter's similarly unauthorized reply (D.N. 108) when considering Charter's objection.

         A. Objection

         A magistrate judge's ruling on a nondispositive matter may be reconsidered if it is shown to be “clearly erroneous or contrary to law.” 28 U.S.C. § 636(b)(1)(A); see also Fed. R. Civ. P. 72(a) (“The district judge in the case must consider timely objections [to nondispositive rulings by the magistrate judge] and modify or set aside any part of the order that is clearly erroneous or is contrary to law.”). Charter contends that Judge Whalin clearly erred in denying its motion to strike the Parkerson, Little, and Eversole affidavits and in granting Plaintiffs' motion to unseal the investigative report. (D.N. 105)

         1. Investigative Report

         Charter first objects to Judge Whalin's conclusion that an investigative report prepared by Rodger Simms prior to Plaintiffs' termination is not protected by the attorney-client privilege and thus should not be sealed in the record. (D.N. 105, PageID # 2434-36; see D.N. 104, PageID # 2405-15) Charter disclosed the report to Plaintiffs on the condition that it would be for attorneys' eyes only. (See D.N. 93, PageID # 2180) Nevertheless, Plaintiffs filed the report in the record, arguing that no privilege applied and that the Court should therefore order the report unsealed and consider it for purposes of summary judgment. (D.N. 91) Judge Whalin agreed that the report was not privileged and granted Plaintiffs' motion to unseal it. (D.N. 104, PageID # 2414-15)

         There is “a strong presumption in favor of openness regarding court records, and thus “[s]hielding material in court records . . . should be done only if there is a ‘compelling reason why certain documents or portions thereof should be sealed.'” Rudd Equip. Co. v. John Deere Constr. & Forestry Co., 834 F.3d 589, 593 (2016) (quoting Shane Grp., Inc. v. Blue Cross Blue Shield, 825 F.3d 299, 305 (6th Cir. 2016)). “‘[I]n civil litigation, only trade secrets, information covered by a recognized privilege (such as the attorney-client privilege), and information required by statute to be maintained in confidence . . .' is typically enough to overcome the presumption of [public] access [to court records].” Shane Grp., 825 F.3d at 308 (quoting BaxterInt'l, Inc. v. Abbott Labs., ...

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