Terrell v. Memphis Zoo, Inc.

• Decision Date: 03 July 2018
• Docket Number: 17-cv-2928-JPM-tmp
• Parties: KIMBERLY TERRELL, Plaintiff, v. MEMPHIS ZOO, INC., Defendant.
• Court: U.S. District Court — Western District of Tennessee

KIMBERLY TERRELL, Plaintiff, v. MEMPHIS ZOO, INC., Defendant.

17-cv-2928-JPM-tmp

UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TENNESSEE WESTERN DIVISION

July 3, 2018

ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF'S FIRST MOTION TO COMPEL

Before the court by order of reference is plaintiff Dr. Kimberly Terrell's First Motion to Compel, filed on April 18, 2018. (ECF Nos. 35, 38.) Defendant Memphis Zoo, Inc. ("Memphis Zoo") responded to this motion on May 2, 2018, and Dr. Terrell replied on May 7, 2018. (ECF Nos. 36, 39.) On May 15, 2018, the court ordered Memphis Zoo to produce records for in camera inspection. For the following reasons, Dr. Terrell's motion is GRANTED in part and DENIED in part.

I. BACKGROUND

Dr. Terrell was hired by Memphis Zoo on August 31, 2015, to serve as the Director of Research and Conservation. (ECF No. 1 at 2; ECF No. 27 at 2.) She apparently reported directly to Dr. Chuck Brady, Memphis Zoo's President and CEO. (ECF No. 39-2.) Dr. Terrell claims that, beginning in July of 2017, she grew concerned that Dr. Brady was treating her differently from the men who worked for him. (ECF No. 1 at 3.) Among various examples of this behavior, she alleges that he arbitrarily criticized her work, made comments indicating that gender colored how he viewed her and other female employees, and subjected her to a performance review when none of the current or former male employees at her level were required to undergo such a review. (Id. at 3-4.) Dr. Terrell claims that she complained about this treatment to Dr. Brady and to the Chairman of the Board for Memphis Zoo. (Id. at 4-6.) She asserts that, after making her concerns known, Dr. Brady withheld a standard salary increase, was excessively critical of her work, and undermined her authority. (Id. at 5-7.) On September 14, 2017, Dr. Terrell's attorney contacted Memphis Zoo and informed it of Dr. Terrell's complaints of discrimination. (ECF No. 1 at 7; ECF No. 27 at 9.)

While Memphis Zoo acknowledges that Dr. Brady critiqued Dr. Terrell's work, it claims that every criticism was justified in light of Dr. Terrell's subpar efforts and tumultuous work relationships. (ECF No. 27 at 3-5.) Memphis Zoo denies that gender bias and retaliation played any role in its or Dr. Brady's actions. (Id. at 3-10.)

On November 1, 2017, Memphis Zoo either ordered or requested that Dr. Terrell not return to her office and that shework remotely. (ECF No. 1 at 9; ECF No. 27 at 11.) On November 13, 2017, Dr. Terrell filed a charge of gender discrimination and retaliation with the Equal Employment Opportunity Commission. (ECF No. 1 at 9; ECF No. 27 at 11.) On November 27, 2017, Memphis Zoo terminated Dr. Terrell's employment. (ECF No. 1 at 9; ECF No. 27 at 11.) Memphis Zoo has indicated that part of the basis for the termination was Dr. Terrell's violation of Memphis Zoo policies requiring her to cooperate with other employees, to perform her work in a respectful and timely manner, and to act in a manner that is not obviously detrimental to the best interest of Memphis Zoo. (ECF No. 35-3 at 5.) Dr. Terrell filed the present suit against Memphis Zoo on December 22, 2017. (ECF No. 1.) She asserts that Memphis Zoo's actions constitute gender discrimination and unlawful retaliation in violation of the Tennessee Human Rights Act ("THRA"). (Id. at 9.)

In the instant motion to compel, Dr. Terrell argues that Memphis Zoo has withheld discoverable materials, provided unsatisfactory responses to several of her interrogatories and document requests, improperly refused to respond to interrogatories and document requests, and improperly provided her with a disorganized mass of emails. (ECF No. 35.) Memphis Zoo responds that it has complied with all procedural requirements and that the information Dr. Terrell seeks iseither irrelevant, overly burdensome to produce, privileged, or protected by the work-product doctrine. (ECF No. 37.) Memphis Zoo has provided only one affidavit, which relates to how it produced the emails in response to Dr. Terrell's document requests. It has provided no affidavit relating to the documents listed on the privilege log.

II. ANALYSIS

A. Documents Listed on Memphis Zoo's Privilege Log

As a preliminary matter, Memphis Zoo argues that, because Dr. Terrell cites only Title VII cases and not THRA cases, she has not demonstrated that the information she seeks is discoverable. The THRA serves to "[p]rovide for execution within Tennessee of the policies embodied in the federal Civil Rights Acts of 1964, 1968 and 1972." Tennessee Code Annotated § 4-21-101(a)(1). Consequently, courts apply the same framework of analysis to claims brought under the THRA that they apply to claims brought under Title VII. See Goree v. United Parcel Serv., Inc., No. 17-5139, 2017 WL 5664924, at *4 (6th Cir. Nov. 8, 2017) ("THRA claims. . . 'are governed by the same burden-shifting standards as the claims under Title VII.'" (quoting Wade v. Knoxville Utils. Bd., 259 F.3d 452, 464 (6th Cir. 2001))); Anderson v. Int'l Comfort Prod., LLC, No. 1:16-CV-00004, 2017 WL 3237319, at *4 (M.D. Tenn. July 31, 2017); Ferguson v. Middle Tennessee State Univ., 451 S.W.3d 375, 381(Tenn. 2014). Therefore, the court will consider the Title VII cases cited by Dr. Terrell in deciding the instant motion.

Dr. Terrell argues that the documents in Memphis Zoo's privilege log with the following Bates numbers are discoverable: Nos. 0079, 0107-09, 0110-12, 0169, 0170, 1262-63, 1267-69, 1270-73, 1278-82, 1283-90, 1291-93, 1294-96, 1297-99, 1306, 1311, 1313, 1314, and 1318-20. Memphis Zoo claims that each of these documents is protected from discovery by the attorney-client privilege, the work-product doctrine, or both.

A federal court refers to state law to resolve issues of attorney-client privilege relating to state law claims. See Fed. R. Evid. 501. Currently, all of the claims in this case are state law claims, and neither party appears to contest the applicability of Tennessee law to those claims. The court thus looks to the Tennessee law of attorney-client privilege. However, this is done with the understanding that "the courts of Tennessee are often guided by state and federal common law when fashioning the contours of the attorney-client privilege." See Royal Surplus Lines Ins. v. Sofamor Danek Grp., 190 F.R.D. 463, 484 (W.D. Tenn. 1999).

"By statute and common law, Tennessee recognizes an evidentiary privilege that protects the confidentiality of attorney-client communications." State v. Buford, 216 S.W.3d 323, 326 (Tenn. 2007). According to T.C.A. § 23-3-105,

No attorney, solicitor or counselor shall be permitted, in giving testimony against a client or person who consulted the attorney, solicitor or counselor professionally, to disclose any communication made to the attorney, solicitor or counselor as such by such person during the pendency of the suit, before or afterward, to the person's injury.

Although T.C.A. § 23-3-105 refers to communications made to an attorney by a client, communications made by a client to an attorney are privileged to the extent those communications are based upon a client's confidential communication or would reveal the nature of a confidential communication if disclosed. Buford, 216 S.W.3d at 326 (citing Bryan v. State, 848 S.W.2d 72, 80 (Tenn. Crim. App. 1992)). Tennessee's codification of the privilege embodies common law principles, and the purpose of the privilege is to encourage "full and frank communication between attorney and client by sheltering these communications from disclosure." Culbertson v. Culbertson, 393 S.W.3d 678, 684 (Tenn. Ct. App. 2012); see also Bryan, 848 S.W.2d at 79 ("[T]he purpose of the privilege is to shelter the confidences a client shares with his or her attorney when seeking legal advice, in the interest of protecting a relationship that is a mainstay of our system of justice.").

"The [attorney-client] privilege is not absolute nor does it encompass all communications between the client and the attorney." Bryan, 848 S.W.2d at 80. The party asserting theprivilege bears the burden of showing that the purported privileged communications "were made in the confidence of the attorney-client relationship." Id. The party asserting the privilege must establish that

1. The asserted holder of the privilege is or sought to become a client;

2. The person to whom the communication was made is a member of the bar of a court, or his subordinate and in connection with this communication is acting as a lawyer;

3. The communication relates to a fact of which the attorney was informed by his client without the presence of strangers for the purpose of securing primarily either an opinion on law or legal services or assistance in some legal proceeding and not for the purpose of committing a crime or tort; and

4. The privilege has been claimed and not waived by the client.

State v. Leonard, No. M2001-00368-CCA-R3CD, 2002 WL 1987963, at *7-8 (Tenn. Crim. App. Aug. 28, 2002) (quoting Royal Surplus Lines, 190 F.R.D. at 468-69); see also Boyd v. Comdata Network, Inc., 88 S.W.3d 203, 213 (Tenn. Ct. App. 2002) ("The communications must involve the subject matter of the representation and must be made with the intention that they will be kept confidential.").

As the work-product doctrine is a federal procedural rule, it applies to the state law claims in this case. See In re Professionals Direct Ins. Co., 578 F.3d 432, 438 (6th Cir. 2009). There are two types of work product. Upjohn Co. v.United States, 449 U.S. 383, 401 (1981). The first type, opinion work product, involves an "attorney's mental impressions, opinions, conclusions, judgments, or legal theories." In re Antitrust Grand Jury, 805 F.2d 155, 163 (6th Cir. 1986). The Sixth Circuit has found that "absent waiver, a party may not obtain the 'opinion' work product of his adversary." In re Columbia/HCA Healthcare Corp. Billing Practices Litig., 293 F.3d 289, 294, 304-05 (6th Cir. 2002) (quoting In re Antitrust...