## Facts

- Mary Kientzy, a McDonnell Douglas Corporation (MDC) employee and the first female lieutenant in its guard services division, was recommended for termination by an internal disciplinary committee.
- Kientzy sued MDC for sex discrimination under Title VII and the Missouri Human Rights Act, alleging her termination was because of her sex.
- MDC maintained a corporate ombudsman program described as informal, neutral, and confidential; the ombudsman had no binding authority over labor-management matters.
- Therese Clemente, the corporate ombudsman, received communications from Kientzy and other employees concerning the termination recommendation, including from at least one committee member who later died.
- Kientzy sought to depose Clemente and obtain disclosure of statements made to Clemente in her ombudsman capacity.
- Clemente, a non-party, moved for a protective order to prevent discovery into ombudsman communications, citing confidentiality commitments and employee reliance on the program.

## Issues

1. Whether confidential communications made to a corporate ombudsman are protected from disclosure in federal civil discovery.
2. Whether a protective order should issue to bar deposition questions and related discovery about communications received by the ombudsman in that role.

## Decision

- The court granted Clemente’s motion for a protective order.
- The court held that confidential communications made to the corporate ombudsman in her ombudsman capacity were protected from compelled disclosure in discovery.
- The court relied on Federal Rule of Evidence 501 and a policy-based balancing of the need for evidence against the need to preserve confidentiality for the ombudsman function.
- The court noted the plaintiff could pursue relevant evidence from other sources, including depositions of available disciplinary committee members and other participants.

## Legal Principles

- Under Federal Rule of Evidence 501, federal courts may recognize privileges based on “reason and experience” where confidentiality is essential to a relationship of significant social value.
- A protective order may be warranted when compelling disclosure would materially harm an institutional dispute-resolution function that depends on promised confidentiality.
- In assessing confidentiality protection for an ombudsman relationship, relevant factors include: (i) program design as neutral and confidential, (ii) employer representations supporting a reasonable expectation of confidentiality, (iii) demonstrated employee reliance, and (iv) availability of the information through alternative, less intrusive discovery.
- Broad discovery principles do not require disclosure where the marginal evidentiary benefit is outweighed by the institutional and public interest in maintaining confidential internal complaint mechanisms.

## Conclusion

The court barred discovery into confidential communications made to MDC’s corporate ombudsman, recognizing a limited Rule 501-based confidentiality protection after concluding that preserving the effectiveness of the ombudsman program outweighed the plaintiff’s need to obtain the same information from the ombudsman rather than other available witnesses.


Kientzy v. McDonnell Douglas Corp., 133 F.R.D. 570 (E.D. Mo. 1991)