United States District Court, W.D. Kentucky, Louisville Division
MEMORANDUM OPINION AND ORDER
J. Hale, Judge United States District Court.
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.
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. (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.
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.
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)
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.” (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. (D.N. 89; D.N. 89-1)
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.
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.
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 #
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., ...