Lewis KEATHLEY, Plaintiff, v. SPIRE INC. and Spire Missouri Inc., Defendants Case No. 4:23-cv-00421-JAR United States District Court, E.D. Missouri, Eastern Division Signed August 15, 2024 Counsel Michael D. Quinlan, Quinlan Law Firm LLC, St. Louis, MO, Adam S. Hochschild, Hochschild Law Firm LLC, Plainfield, VT, for Plaintiff. Charles E. Reis, IV, Lillian T. Manning, Littler Mendelson PC, St. Louis, MO, Jamie M. Westbrook, Spire, Legal Department, St. Louis, MO, for Defendant Spire, Inc. Charles E. Reis IV, Littler Mendelson PC, St. Louis, MO, for Defendant Spire Missouri, Inc Ross, John A., United States District Judge ORDER *1 This matter is before the Court on Plaintiff Lewis Keathley's Motion to Compel. ECF No. 66. Defendants Spire Inc. and Spire Missouri Inc. have filed a Response. ECF No. 80. Plaintiff filed a Reply. ECF No. 85. For the reasons set forth below, the Court will grant in part and deny in part Plaintiff's Motion. Background In his Amended Complaint, Plaintiff alleges that Defendants discriminated against him in employment because of his race, sex, and age. ECF No. 31. Specifically, Plaintiff alleges that he was not selected to testify as part of Defendants’ 2021 Rate Case because he is a white, middle-aged man. He further alleges that when he complained about this discrimination, he was passed over for a promotion in late 2021/early 2022. Plaintiff also alleges that he was, and continues to be, retaliated against by Defendants for his complaints. According to Plaintiff, Defendants’ corporate diversity, equity, and inclusion efforts are the cause of their discriminatory actions. Plaintiff raises various claims under Title VII of the Civil Rights Act, the Age Discrimination in Employment Act (“ADEA”), and the Missouri Human Rights Act (“MHRA”). Plaintiff now moves for the Court to compel Defendants to provide comprehensive responses to various written discovery requests. First, Plaintiff opposes Defendants’ objections to Plaintiff's definition of “DEI policies” Plaintiff uses in several of his requests for production, including a request regarding Defendants’ reasons or justifications for such policies. Second, Plaintiff opposes Defendants’ objections to the scope of Plaintiff's requests for production of complaints regarding Defendants’ affirmative action program (“AAP”) and “DEI Policies.” Third, Plaintiff opposes Defendants’ objections to his interrogatory and request for production seeking the amounts budgeted or spent on diversity, equity, and inclusion initiatives. Fourth, Plaintiff opposes Defendant's objections to the scope of production of Defendants’ employees’ text messages, emails, Teams instant messages, or other correspondence. Finally, Plaintiff opposes Defendants’ assertion of the work-product privilege in response to Plaintiff's Interrogatory that seeks the names of Defendants’ employees who helped prepare discovery responses. Plaintiff asks this Court to overrule Defendants’ various objections and issue an order compelling Defendants to provide complete responses. Defendants stand on their various objections and ask the Court to deny Plaintiff's Motion. ECF No. 80. Defendants variously oppose production of materials based on their objections regarding the relevance, scope, and proportionality of Plaintiff's requests. Defendants also contend that they have produced various text messages, emails, Teams instant messages, and other communications in response to Plaintiff's discovery requests since Plaintiff filed his Motion, and therefore additional responsive discovery is neither required nor proportional to the needs of the case. Defendants continue to assert the work-product privilege to prevent the production of a list of Defendants’ employees who assisted in drafting discovery responses. Discussion *2 Federal Rule of Civil Procedure 26(b)(1) provides that: Parties may obtain discovery regarding any nonprivileged matter this is relevant to any party's claim or defense and proportional to the needs of the case, considering the importance of the issues at stake in the action, the amount in controversy, the parties’ relative access to relevant information, the parties’ resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs the likely benefit. The Rule further states “[i]nformation within this scope of discovery need not be admissible in evidence to be discoverable.” Id. Importantly, the Court also has the power to limit the extent of discovery if it determines that “the proposed discovery is outside the scope permitted by Rule 26(b)(1).” Fed. R. Civ. P. 26(b)(2)(C)(iii). As the Eighth Circuit has recognized, Rule 26(b) is “liberal in scope and interpretation, extending to those matters which are relevant and reasonably calculated to lead to the discovery of admissible evidence.” Hofer v. Mack Trucks, Inc., 981 F.2d 377, 380 (8th Cir. 1992) (citation omitted). But the scope of relevance in discovery “should not be misapplied so as to allow fishing expeditions ....” Id. Instead, “[s]ome threshold showing of relevance must be made before parties are required to open wide the doors of discovery and to produce a variety of information which does not reasonably bear upon the issue in the case.” Id. Once the moving party establishes this threshold showing of relevance, “the burden shifts to the opposing party to establish a lack of relevance and/or undue burden.” Direct Biologics LLC v. Kimera Labs, Inc., No. 4:18CV2039 HEA, 2023 WL 4261926, at *3 (E.D. Mo. June 29, 2023) (citation and internal quotations omitted). Plaintiff's Definition of “DEI Policies” is Overbroad Plaintiff's November 2023 Request for Production defines “DEI Policy” or “DEI Policies” as: [A]ny procedure, plan, approach, course, intention, design, directive, direction, action, activity, rule, regulation, policy, practice, manual, method, methodology, strategy, scheme, technique, purpose, pledge, agreement, communication, or mechanism of any kind relating to the quantification, qualification, recruitment, promotion, education, training, assignment, compensation, and/or workplace terms, conditions, benefits, or any other treatment of Defendants’ employees based on, related to, or taking into account in any way – in whole or in part – employees’ race, sex, age, or gender. ECF No. 67-6 at 1. Among other requests that use this definition, Plaintiff's Request for Production No. 5 requests “[a]ll Documents constituting, containing, reflecting, referring to or otherwise describing every DEI policy ... in effect during Plaintiff's employment with each/either Defendant.” Id. at 5. Plaintiff's definition of “DEI Policies” is simply overbroad and the discovery requests that use it seek material not relevant to Plaintiff's specific claims of discrimination and retaliation. Plaintiff argues that any evidence of any treatment of Defendants’ employees based on their race, sex/gender, and age is relevant to his discrimination claims. But he makes no attempt to show how such broad-ranging discovery requests are reasonably calculated to ensure discovery of admissible evidence that could support his specific claims. Plaintiff alleges that he was not selected to testify in the 2021 Rate Case, was passed over for a promotion, and continues to be retaliated against for complaining of these alleged acts of discrimination. Plaintiff makes no connection between these specific claims and his extremely broad definition of “DEI Policies.” On its face, Plaintiff's definition arguably encompasses all or nearly all employment activities, and thus Plaintiff's requests for production that use this definition are not reasonably calculated to lead to discovery of admissible evidence and are not proportional to the needs of this case. *3 Plaintiff's cited authority does not support Plaintiff's use of such a broad definition of DEI Policies. In Humphries v. Pulaski County Special School District, the Eighth Circuit found that evidence that an employer followed an affirmative action policy could constitute direct evidence of unlawful discrimination. 580 F.3d 688, 694 (8th Cir. 2009). In Duvall v. Novant Health, Inc., the Fourth Circuit found that there was sufficient evidence presented at trial for the jury to find that the plaintiff's race and sex played a motivating factor in the defendant's choice to fire the plaintiff. 95 F.4th 778, 788 (4th Cir. 2024). Specifically, the Duvall Court pointed to evidence that the defendant employer had a specific diversity and inclusion policy that included benchmark metrics regarding the diversity of its executive and senior leadership teams and a long-term financial incentive plan that tied executive bonuses to closing perceived gaps in workforce diversity. Id. at 789–90. Plaintiff claims that these cases show that his definition of DEI Policies seeks only relevant evidence. But a simple reading of Plaintiff's definition shows that Plaintiff seeks far more than affirmative action policies, evidence of specific diversity and inclusion hiring metrics, or financial incentives for accomplishing increased diversity. While the Court agrees that evidence of an affirmative action policy or specific diversity hiring quotas would be relevant to Plaintiff's claims, Plaintiff's definition of DEI Policies seeks far more than this. Plaintiff's broad definition of DEI Policies makes it difficult to assess what exactly Plaintiff is requesting. Plaintiff appears to seek the Court's blessing of his overbroad definition so that he can conduct a fishing expedition into matters that have no relevance to his claims and are not proportional to the needs of his case. The Court does not condone such a far-reaching scope of discovery and will not compel Defendants to produce documents responsive to Plaintiff's overbroad definition of DEI Policies. This is also true for Plaintiff's request for the reasons behind Defendants’ “DEI Policies.” In Plaintiff's Request for Production 7, Plaintiff requests “[a]ll documents constituting, containing, reflecting, referring to or otherwise describing every reason and/or justification for implementing all DEI Policies in effect during Plaintiff's employment with each/either Defendant ....” ECF No. 67-13 at 5–6. Defendants’ response to this request is straightforward: they do not have a DEI Policy and they are not withholding any documents on the basis of their objections to this request.[1] Plaintiff argues that Defendants’ responses do not comply with Fed. R. Civ. P. 34(b)(2)(C) because they do not “affirmatively” state whether responsive materials are being withheld on the basis of Defendants’ objections and are therefore ambiguous. Rule 34(b)(2)(C) does not use the word “affirmatively,” and the case cited by Plaintiff does not convince the Court that it should require Defendants here to offer an “affirmative” response above and beyond what they have already stated. See Jiang v. Porter, No. 4:15-CV-1008-CEJ, 2016 WL 3015163, at *2 (E.D. Mo. May 26, 2016) (ordering defendant to “affirmatively state whether any responsive materials are being withheld on the basis of objections” when defendant failed to provide any response as to whether documents were being withheld per the objections). Defendants have clearly stated that they are not withholding discoverable material based on their objections to Plaintiff's request, and this response conforms to Fed. R. Civ. P. 34(b)(2)(C). The Court finds no ambiguity in Defendants’ responses and no reason to question Defendants’ assertion that no materials are being withheld based on their objections. The Court will deny the Motion to Compel Defendants to respond to Plaintiff's requests for production that include Plaintiff's definition of “DEI Policies.” Plaintiff's Interrogatories 1, 2, and 13 Are Overbroad *4 Plaintiff next objects that Defendants have not properly responded to Plaintiff's Interrogatories 1, 2, and 13. Interrogatory No. 1 asks, in relevant part, if Defendants “have ever considered a person's race, color, sex, or age in offering or not offering a promotion or other work opportunity?” ECF No. 67-7 at 6. Interrogatory No. 2 asks, in relevant part, that Defendants “describe in detail any complaint that you allegedly considered a person's race, color, sex, or age in offering or not offering a promotion or other work opportunity to anyone.” Id. Finally, Interrogatory No. 13 asks, in relevant part, whether Defendants “[h]ave ... received any complaints about any [affirmative action policy] or DEI Policy that you have had in place at any time from 2015 to the present?” Id. at 10. Plaintiff argues that its proposed scope for these interrogatories, from 2015 to the present, is appropriate. Plaintiff clarifies in his Motion that he seeks all instances of complaints of discrimination or complaints about affirmative action or DEI policies on a company-wide basis during that time period. ECF No. 67 at 11. Plaintiffs assert that Defendants should be compelled to produce documents from 2015 through to the present because Plaintiff started his employment with Defendant in 2015 and alleges continuing discrimination and retaliation through to today. Defendants objected and have limited the scope of their responses to the Interrogatories to the time period between 2018 and 2022 and only to those complaints of discrimination from Plaintiff's specific department, the Regulatory and External Affairs Department (the “Department”). Defendants argue that its preferred time period of 2018 to the present is appropriate because (1) Plaintiff alleges that Defendants first adopted a DEI policy in 2018; and (2) Plaintiff only alleges discriminatory actions in 2021 and 2022. Defendant also contends that the scope of Plaintiff's requests for complaints about discrimination should be limited to the Department because Plaintiff only alleges discriminatory actions by his superiors in the Department. According to Defendants, not only are complaints from other departments not relevant, but such information is also not proportional to the needs of the case. Plaintiff has failed to show that a disclosure of company-wide complaints of discrimination between 2015 to the present is reasonably calculated to lead to admissible evidence to support his claims or is proportional to the needs of the case. “Generally, a plaintiff in a wrongful termination case is not entitled to company-wide discovery absent a showing of a particular need for the requested information.” Semple v. Fed. Express Corp., 566 F.3d 788, 794 (8th Cir. 2009) (citing Carman v. McDonnell Douglas Corp., 114 F.3d 790, 792 (8th Cir. 1997)). Though Plaintiff alleges that Defendants’ discriminatory actions are rooted in Defendants’ CEO's adoption of a diversity pledge in 2018, he does not allege that the CEO took any specific discriminatory actions against him. Plaintiff's allegations of discrimination are limited to Defendants’ employees in the Department who made decisions regarding whether he would testify in the 2021 Rate Case or be granted a promotion in 2022. Plaintiff has not shown any need for discovery of other allegations of discrimination outside of the Department, let alone at a company-wide level. See id. (finding that company-wide discovery was not appropriate when the facts of the case indicated that only plaintiff's managers in his district were involved in the alleged discriminatory acts). Plaintiff has similarly failed to show that he is entitled to discovery of instances of alleged discrimination by Defendants that arose before he alleges that Defendants adopted their diversity initiatives in 2018. The proper scope of Plaintiff's discovery is between 2018, when he alleged Defendants first implemented a diversity initiative, and the present, because Plaintiff alleges discrimination and retaliation against him are ongoing. Therefore, the Court will deny in part and grant in part Plaintiff's Motion to Compel as to Plaintiff's Interrogatories 1, 2, and 13. The Court will direct Defendants to supplement responses and productions using 2018 to the present as the relevant time period, and Defendants’ responses to Interrogatories 1, 2, and 13 will be limited to any instances of alleged discrimination in the Department only. Plaintiff's Discovery Requests Related to Amounts Budgeted or Spent on “DEI Policies” Are Overbroad *5 Plaintiff's Interrogatory No. 20 asks Defendants to: Describe in detail all dollar amounts you have budgeted for or spent on the implementation or promotion of any AAP or DEI Policies, for each year from and including 2015 to the present. In your answer, describe in detail responsive amounts that are attributable to: salaries, benefits, and reimbursement of employees whose jobs involve the implementation or promotion of AAP or DEI Policies; training programs; presentations; consultants; travel; software programs; and anything else you use or intend to use for the implementation or promotion of any AAP or DEI Policies. Also, in your answer, identify all persons with knowledge and all documents reflecting or referring to the amount budgeted for or spent on the implementation or promotion of any AAP or DEI Policies. ECF No. 67-18 at 1–2. Plaintiff's Request for Production No. 76 makes a similar request for “[a]ll documents sufficient to show ... all dollar amounts you have budgeted for or spent on the implementation or promotion of any [affirmative action policies] or DEI Policies, for each year from and including 2015 to the present.” ECF No. 67-20 at 1. In both instances, Defendants responded that there is not a budgeted amount for implementation and promotion of AAP or DEI Policies, and, as to Request for Production No. 76, Defendants are not withholding any documents based on their objections. ECF No. 67-18 at 2; ECF No. 67-20 at 1–2. In these discovery requests, Plaintiff again relies on his definition of “DEI Policies” that the Court has already found to be overbroad. To the extent that Plaintiff requests that the Court compel answers or production of documents related to these written discovery requests based on Plaintiff's definition of “DEI Policies,” the Court will again deny such a request. Plaintiff's definition of DEI Policies is simply too broad and is not reasonably calculated to lead to discovery of admissible evidence. The Court separately finds that Plaintiff's Interrogatory No. 20 is not reasonably calculated to lead to admissible evidence. In his Reply, Plaintiff argues that, like the Duvall court's finding that evidence of a bonus program for executives that helped the defendant meet diversity objectives was relevant evidence of discrimination, so too could the salary, incentive bonuses, and costs of training and travel of Defendants’ employees be relevant to Plaintiff's claims here. ECF No. 85 at 5–6. But Plaintiff does not stop there; he also argues that the budget and salary information for the entire HR department is relevant. Id. at 6. Given that Defendants have already responded to Plaintiff that they do not have any DEI Policies or budgets associated with implementing such policies, the Court is not entirely sure what exactly Plaintiff is seeking beyond a list of Defendants’ company-wide budget. It appears that Interrogatory No. 20 is simply another fishing expedition that relies on his overbroad definition of “DEI Policies.” Again, Plaintiff has failed to articulate how his request has been reasonably calculated to lead to discovery of admissible evidence. The Court will deny Plaintiff's Motion to Compel Defendants to provide supplementary answers to Plaintiff's Interrogatory No. 20 and Request for Production 76. Defendants Have Already Produced the Requested ESI *6 Plaintiffs have made dozens of requests for production related to Defendants’ communications about “DEI Policies” and Plaintiff's complaints of discrimination. During the meet and confer process, Plaintiff and Defendants discussed the proper search parameters for electronically stored information (“ESI”) that would yield a manageable set of ESI to review that would be responsive to Plaintiff's discovery requests. ECF No. 67-24. Plaintiff proposes that no ESI search is necessary because Defendants “personnel can and should personally search for the requested text messages, emails, other ESI, and non-ESI documents.” ECF No. 67 at 14. In their Response, Defendants state that “all identified responsive, non-privileged emails, text messages, and Teams chats have been produced,” and that running Plaintiff's preferred ESI searches and manually reviewing the tens of thousands of documents responsive to those searches is disproportionate to the needs of the case. ECF No. 80 at 18–19. In his Reply, Plaintiff states that “[t]he search parameters [Defendants] have employed may be acceptable, but Spire has only recently completed ... its ESI production ....” ECF No. 85 at 7. Plaintiff therefore frames the remaining dispute as “not a matter of deficient ESI parameters; it is a matter of deficient production.” Id. at 8. Specifically, Plaintiff takes issue with the number and scope of redactions Defendants used in recent productions, including “more than 500 of the documents” that are “redacted in their entirety or in substantial part, with the label ‘REDACTED – CONFIDENTIAL.’ ” ECF No. 85-3. Plaintiff requests that the Court “order [Defendants] to respond in full without objection and without spurious redactions.” It appears that Plaintiff's requested relief regarding Requests for Production Nos. 3, 4, 9, 13–21, 24, 26, 33, 36, 42–46, 51–52, 58–59, 61–63, and 65–70 has been resolved, at least as to Defendants’ production of ESI. The Court will therefore deny Plaintiff's Motion to Compel production of emails, text messages, Teams instant messages, and other documents related to those requests for production as moot. To the extent that Plaintiff is raising a new argument in its Reply brief regarding the propriety of the redactions of those documents, the Court is not obligated to consider it. Green v. Missouri, 734 F. Supp. 2d 814, 848 (E.D. Mo. 2010) (“As a general rule, courts will not consider arguments raised for the first time in a reply.”) (citing Barham v. Reliance Standard Life Ins. Co., 441 F.3d 581, 584 (8th Cir. 2006)). The Court does not find it necessary to take up Plaintiff's newly raised issues with Defendants’ redactions. Instead, the Parties should meet and confer in good faith those redactions before raising any related arguments with the Court. Interrogatory No. 18 Does Not Seek Relevant Evidence Finally, Plaintiff asks the Court to compel Defendants to respond to his Interrogatory No. 18, which asks Defendants to “[i]dentify all persons who assisted in answering these Interrogatories, in responding to any other discovery requests in this case, and in preparing your initial disclosures.” ECF No. 67-14 at 16. Defendants answered only with the names of Defendants’ counsel. Id. Defendants also objected to the Interrogatory claimed attorney-client or work product privileges protect such disclosure. Id. Plaintiff argues that no privilege applies, and Defendants argue that the work product privilege applies because a list of Defendants’ employees who helped in responding to Plaintiff's discovery requests would improperly invade into Defendants’ attorneys’ thought process and legal strategy. The Court finds that there is no basis to compel Defendants to produce this information because it is not relevant and not reasonably calculated to lead to admissible evidence. Plaintiff fails to explain his need for this information or why such information would somehow assist him in supporting his claims of race, age, and sex discrimination. Therefore, the Court will deny Plaintiff's Motion to Compel Defendants to further respond to Interrogatory No. 18. Conclusion *7 Accordingly, IT IS HEREBY ORDERED that Plaintiff's Motion to Compel is GRANTED in part and DENIED in part. ECF No. 66. To the extent Defendants have limited their responses and productions to the 2018 to 2022 time period, Defendants are directed to supplement such responses and productions with information and documents from 2018 through to the present. Footnotes [1] When responding to Plaintiff's discovery requests, Defendants objected to Plaintiff's definition of “DEI Policies” but nevertheless answered Plaintiff's Interrogatories and Requests for Production using the following definition of “DEI Policies”: “policies, agreements, strategy plans, or guidance relating to the preference or prioritization of employees’ race, sex/gender, or age for open positions, promotions, or other work opportunities.” ECF No. 80 at 11.