IN THE CIRCUIT COURT OF THE CITY OF ST.

LOUIS
STATE OF MISSOURI

STATE OF MISSOURI, EX INF. )

ANDREW BAILEY, )
ATTORNEY GENERAL, )
)
Relator, )
)
v. ) Case No. 2322-CC00383
)
KIMBERLY M. GARDNER, )
)
Respondent. )

State’s Reply to the Circuit Attorney’s Office’s Response to the

Court’s Order

After sixty days, five pleadings, four meet-and-confers, and one hearing,

the Circuit Attorney’s Office has produced zero documents. Instead, the Circuit

Attorney’s Office has asserted ineffectual and inapplicable privileges—many

of which do not exist in Missouri—and the office has continued to make

meritless objections. The only thing the Circuit’s Attorney’s Office has

produced is delay.

But the time for delay is over. This Court should compel the Circuit

Attorney’s Office to fulfill its discovery obligations.

Argument

I. The Circuit Attorney’s Office’s latest response is again deficient.

For its fifth effort to oppose discovery, the Circuit Attorney’s Office has,

once again, tendered a deficient pleading. Despite this Court’s instruction, the

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Circuit Attorney’s Office has failed to produce any privilege log, despite

asserting multiple privileges. Further, the Circuit Attorney’s Office attempts

to use Missouri’s fact-pleading standard as a bar to any discovery, which is

contrary to Missouri law.

This is the Circuit Attorney’s fifth pleading, and it returns to this Court

with blanket privilege assertions, assertions of privilege that are not

recognized by Missouri law, a complete failure to search for or produce any

records, and with a pleading that was filed out of time, without even a motion

for leave to file out of time. The Circuit Attorney’s Office’s efforts here are

aimed more at delay than at good-faith compliance, as explained below.

The Circuit Attorney’s Office has failed to produce a

privilege log.

The party asserting the privilege has the burden to demonstrate it exists.

Rule 58.02(e)(2); State ex rel. Kilroy Was Here LLC v. Moriarty, 633 S.W.3d

406, 414 (Mo. App. 2021) (stating that blanket assertions of work-product

privilege are ineffective); State ex rel. Friedman v. Provaznik, 668 S.W.2d 76,

80 (Mo. 1984) (same). A party may not make a blanket assertion of privilege.

See State ex rel. Ford Motor Co. v. Westbrooke, 151 S.W.3d 364, 367 (Mo. 2004)

(discussing this principle in the context of work-product). Instead, the party

seeking to invoke a privilege must make a specific objection and create a

privilege log or present evidence, so a Court may have a sufficient basis from

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which to make a determination as to the applicability of the privilege. Id.; see

Rule 58.02.

Nearly two weeks ago, at the hearing on April 18, 2023, the Court

instructed the Circuit Attorney’s Office to produce a privilege log, or address

why a privilege log would be insufficient. Hrg. Tr. 57–58. At the hearing, the

following exchange was had:

THE COURT: On that one in your response I’d like for you to let
me know what kind of work, what is the burden, [et] cetera that it
would take for you to have to produce those sorts of things and to
what extent you believe it would contain privileged information
and whether that can be addressed by a privilege log.

MR. JEFFRESS: Yes, sir.

THE COURT: That would actually generally be good advice on

responding to every one.

MR. JEFFRESS: Yes, sir.

Hrg. Tr. 57–58. Despite this exchange, the Circuit Attorney’s Office has, again,

neither identified any specific documents protected by privilege nor provided a

privilege log or other competent evidence from which this Court could consider

any claim of privilege.

By failing to produce a privilege log, and by again asserting a blanket

privilege to the State’s request for discovery, it appears that the Circuit

Attorney’s Office is attempting to further delay discovery. But the Court should

not countenance further delay. The Circuit Attorney’s Office’s failure to

3
produce a privilege log is a waiver of the privileges the Circuit Attorney’s Office

has repeatedly failed to correctly assert. The Court should order the Circuit

Attorney’s Office to promptly comply with the State’s discovery requests.

The Circuit Attorney’s invocation of “fact pleading” as a

defense to discovery misunderstands the liberal nature of
discovery.

The Circuit Attorney’s Office attempts to limit discovery by making

several incorrect assertions about Missouri’s fact-pleading regime. “As is often

said, Missouri is a fact-pleading state.” R.M.A. by Appleberry v. Blue Springs

R-IV School District, 568 S.W.3d 420, 425 (Mo. 2019). “But the facts that must

be pleaded are the ultimate facts, not evidentiary facts.” Id. Ultimate facts are

the facts the factfinder must find to return a verdict for the plaintiff or, as here,

the relator. Id. (discussing the use of Missouri Approved Instruction to

determine the ultimate facts),

The Circuit Attorney’s Office argues that because Missouri is a fact-

pleading jurisdiction this Court should find that the State’s allegations are

merely fishing-expeditions. In support of that argument, the Circuit Attorney

points to four sets of requests: (1) requests concerning the Circuit Attorney’s

budget; (2) requests concerning grant funding in relation to victim’s services

as the Circuit Attorney’s Office; (3) requests concerning the roles of Maurice

Foxworth, a senior level advisor, Ron Johnson, who, upon information and

belief, is the Circuit Attorney’s liaison to the St. Louis Metropolitan Police

4
Department, and Dana Kelly, who, upon information and belief is a senior-

level executive assistant involved in, at least, the budget process within the

Circuit Attorney’s Office; and (4) requests concerning the diversionary

programs of the Circuit Attorney’s Office. Despite being repeatedly informed

that its assertion is plainly false, the Circuit Attorney’s Office again asserts

that the State “mentions none of the foregoing subjects in his Amended

Petition, much less in any substantive fashion.” Submission at 4. 1

While these requests will be addressed in greater detail below, even a

cursory review of the pleading indicates that the State made allegations

concerning the Circuit Attorney’s budget and mismanagement of finances,

especially in relation to Gardner’s failure to staff her office. See, e.g., Am. Pet.

at ¶¶ 367–73, 500–504. As for the requests concerning grant funding and

Victim’s services, the State has pled more than 100 factual assertions

concerning the violation of the constitutional rights of victims by Gardner and

her office. Id. at ¶¶ 523–628. And the State has made several factual

allegations concerning Foxworth and Kelly. Id. at ¶¶ 383–90. 2

1 The State will cite to the Circuit Attorney’s Office’s April 26, 2023 filing
titled, Non-Party The Office of the Circuit Attorney’s Submission in Response
to the Court’s order from April 18, 2023, hearing on motion for protective order
and to quash, as “Submission.”

2 Due to the nature of the allegations, the State made the conscious
choice to not include Foxworth’s name in the amended petition, which is a
public filing. But, because the counsel for the Circuit Attorney’s Office has

5
 As to Johnson and the diversionary programs, since the State filed its

suit, Gardner has made several public statements apparently indicating that

her defense to the suit will include blaming the St. Louis Metropolitan Police

Department for her failures and touting her use of diversionary programs.

Gardner has therefore put these subjects—and consequently Johnson, as police

liaison—at issue. 3

The Circuit Attorney’s Office’s misunderstanding and misapplication of

Missouri’s fact-pleading standard to limit discovery would impermissibly allow

Gardner to deny the State’s discovery requests and then later use that

requested information as a sword and shield. See, e.g., State ex rel. St. John’s

Reg. Med. Ctr. v. Dally, 90 S.W.3d 209, 215 (Mo. App. 2002) (“The so-called

‘fairness doctrine’ is grounded in the notion that it is unfair to permit a party

to make use of privileged information as a sword when it is advantageous for

the privilege holder to do so, and then as a shield when the party opponent

seeks to use privileged information that might be harmful to the privilege

holder.”).

repeatedly used that discretion as sword and shield in this litigation, the State
now specifically asserts that paragraphs 383 through 386 concern Foxworth.

3Additionally, Gardner’s answer asserted that she had not pleaded all of
her defenses. Ans. at Affirmative Defense ¶ 17.

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 Even if the State had not pled these facts and Gardner had not placed

these specific requests at issue, the Circuit Attorney’s argument—that fact-

pleading means any discovery must be hyper-technically connected to a specific

allegation of error—is wrong. “The purpose of discovery is not merely to

prevent surprise at trial. An equally important purpose is to narrow the issues

and thereby facilitate a speedy and less expensive disposition of the case.”

Wilkerson v. Prelutsky, 943 S.W.2d 643, 650 (Mo. 1997). And Missouri’s

discovery rules further this purpose. See Rule 56.01; see also Rule 58.01.

Under the Circuit Attorney’s Office’s understanding of fact-pleading and

its relation to discovery, the party seeking discovery would have to know every

single evidentiary fact that existed prior to requesting any discovery. That

argument misunderstands the commands of fact-pleading and is plainly not

true as it would render all discovery superfluous. See Rule 56.01(b).

As will be discussed below, the State’s requests are not fishing

expeditions. They each bear a direct relationship to allegations made in the

amended petition. Gardner should not be allowed to cloak a request to preview

the State’s evidentiary facts as a response to a valid discovery request. The

Court should order the Circuit Attorney’s Office to promptly comply with the

State’s discovery requests.

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 The Circuit Attorney’s submission is its fifth pleading, and
the time for it to make cogent, specific, and complete
objections has passed.

Under Rule 58.02(e)(3), a third party is required to make “a timely and

specific objection” to any request the party finds objectionable. Despite that

straightforward obligation, the Circuit Attorney’s Office has failed to make

specific objections despite filing five separate responses to the State’s discovery

requests. The Court should not countenance further efforts by the Circuit

Attorney’s Office to delay discovery.

The failure to make specific objections is consistent with a pattern of

conduct that is designed to delay discovery. The lack of specific objections has

been accompanied by the Circuit Attorney’s Office and its counsel’s repeated

failure to review the office’s own records. In the several meet-and-confer

discussions with the Circuit Attorney’s Office, it has become apparent that

counsel for the Circuit Attorney’s Office does not know what records the office

has, what those records contain, where those records are retained, or which

custodians retain those records.

The State made its initial request weeks ago. Yet even now, the Circuit

Attorney’s Office has repeatedly failed to make specific objections, and its

external and internal counsel have no comprehension of the records in its

possession. The repeated failure by the Circuit Attorney’s Office to review its

internal records is not surprising given the allegations pled against Gardner

8
in the State’s amended pleading, but it cannot be countenanced given the

gravity of these proceedings. This Court should find that the repeated failure

to make specific objections to specific documents is a waiver of the asserted

privilege. The Court should order the Circuit Attorney’s Office to promptly

comply with the State’s discovery requests.

The Circuit Attorney’s Office filed its submission late,

without a motion for leave to file out of time, and its failure
to follow the Court’s order is a sufficient ground to deny its
objections.

At the April 18, 2023, hearing, the Circuit Attorney’s Office was not

prepared to argue its motion to quash. Hrg. Tr. at 18. At the hearing, the

following exchange was had:

THE COURT: My concern is that the type of, you know -- the type
of delay that will happen in a case like this, one where the people
of the state of the city really want to know an answer sooner rather
than later. We will talk about that a little bit later. I’m not saying
to you all that I’m going to rush anything, but we are going to rush
anything, but this is not something where -- this is something
where time is of the essence.

MR. JEFFRESS: I think we do much better more efficient job

sending this on paper than doing it here in court. I am not prepared
to go through 40-some request and list every privilege that can be
applicable here. Some of them I don’t understand. I just told them
I don’t understand them.

THE COURT: Part of my question to you is why not?

MR. JEFFRESS: Why I don’t?

THE COURT: Why are you not prepared?

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 MR. JEFFRESS: Because of the way they are written. Is that my
fault?

***

Id. at 17–18. 4

After providing additional time for the parties to confer about the

requests, this Court ordered the Circuit Attorney’s Office to file a response in

support of its motion to quash by April 25, 2023. The Circuit Attorney’s Office

did not file a timely response, instead filing its response on April 26, 2023,

without seeking leave to file a late response. And despite filing the exact same

document twice on April 26, 2023, associate counsel for the Circuit Attorney’s

Office, Christopher Hinckley, inaccurately certified that he filed the response

on April 25, 2023. 5 This Court should review the Circuit Attorney’s Office’s

objections in light of the continual, and apparently intentional, delay of these

proceedings by Gardner and her office.

The Circuit Attorney’s Office has taken inconsistent

positions in order to achieve a benefit.

The Circuit Attorney’s Office repeatedly argues that this Court should

limit the State’s discovery requests directed to the office because it is not a

4 Except for three vagueness objections, none of the Circuit Attorney’s

Office’s objections relate to “the way [the requests] are written.”

5Christopher Hinckley is associate counsel under Missouri Supreme

Court Rule 9 because Jon Jeffress is admitted pro hac vice.

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party to this action. The Circuit Attorney’s Office asserts, “Let there be no

mistake here: the office of the Circuit Attorney is a non-party here, even if the

Relator often seeks to conflate the two. Ms. Gardner occupies her office, but

she is not the office herself. The requests here are as to a non-party.”

Submission at 5. But the responses by the Circuit Attorney’s Office have

repeatedly been the cause of this “conflation.” Indeed, the Circuit Attorney’s

Office repeatedly makes its filings on behalf of Gardner:

Further, during the April 18, 2023 hearing, counsel for the Circuit

Attorney’s Office appeared to indicate that Gardner is directing his response

to the challenged subpoena. It is absurd for Gardner to direct the response to

the subpoena and then to argue that her office should be able to assert the

protections afforded non-parties. While a quo warranto petition is against

Gardner in her individual capacity, it necessarily relates to her failures as the

11
elected Circuit Attorney. See Am. Pet. at ¶¶ 1–628. Therefore, while the Circuit

Attorney’s Office is not a party to this action, it is not a traditional non-party

as contemplated by Rule 58.02.

And even if this Court were to set aside that argument, the Circuit

Attorney’s Office’s allegations of burden are incomplete. After the Circuit

Attorney’s Office indicated it was not prepared for the hearing on its motion to

quash, this Court stated:

THE COURT: Understood. Is there a -- one, in your response, Mr.

Jeffress, I’d like you to give me some idea of what the types of
expenses are that you are claiming. If your suggestion is that
something is unduly burdensome, something is going to cost a lot
of money, I want to have an idea of what that looks like so that I’m
not -- we are not just working in kind of a void of information here,
which is where I kind of feel like I am right now.

MR. JEFFRESS: Yes, Your Honor. We will do that.

Hrg. Tr. at 38–39.

Despite his express assurance, counsel for the Circuit Attorney’s Office

did not “do that.” Instead, the Circuit Attorney’s Office makes conclusory and

vague allegations about “[t]errabytes of data,” and “thousands of hours of

review[.]” The Circuit Attorney’s Office has provided this Court no evidence

from which it could even fashion a guess about what records the office has, how

many records the office has, what those records contain, where those records

are retained in the office, or which custodians within the office retain those

12
records. These failures have led to the Circuit Attorney’s Office’s conclusory—

and ultimately unavailing—allegation of burden.

And on top of all of this, Gardner’s own actions in the last week have

revealed that her relevance and privilege objections to the State’s requested

discovery are self-serving and baseless. Just last week, Gardner was ordered

to show cause why she should not be sanctioned for her office’s failure to appear

for a jury trial. Order, State v. Jones, 2222-CR01348-01 (St. Louis City Cir. Ct.

April 17, 2023).

In order to avoid a contempt finding in that case, Gardner sought to pass

the buck to her subordinates. In service of that goal, she produced text

messages between her subordinates. Exhibit B to Response to Order to Show

Cause, State v. Jones, 2222-CR01348-01 (St. Louis City Cir. Ct. April 21, 2023).

The text messages discuss decision-making within the office; the text messages

appear to be between employees on their private phones; and the text messages

use the names of witnesses in a discussion analyzing the relevant importance

of the witnesses to the case. Id.

Not only did Gardner produce all this information in four days—which

belies any claim that such information is too difficult or burdensome to

produce—she filed it in a document publicly available on Missouri Case.net. In

light of her actions in the Jones case, she cannot now raise burden, privilege,

or related arguments. See, e.g., St. John’s, 90 S.W.3d at 215 (“The so-called

13
‘fairness doctrine’ is grounded in the notion that it is unfair to permit a party

to make use of privileged information as a sword when it is advantageous for

the privilege holder to do so, and then as a shield when the party opponent

seeks to use privileged information that might be harmful to the privilege

holder.”).

In short, Gardner has demonstrated the relevance of emails and text

messages sent by herself and her subordinates, and she has publicly disclosed

such information. Any claim that such information is irrelevant and privileged

has been refuted by her own actions. The Court should order the Circuit

Attorney’s Office to promptly comply with the State’s discovery requests.

II. The Circuit Attorney’s Office’s privilege analysis is wrong.

In its most recent pleading, the Circuit Attorney’s Office continues to

assert the informer’s privilege, Submission at 8–10; the public interest

privilege, Submission at 10–12; the law enforcement privilege, Submission at

12–13; the deliberative process privilege, Submission at 13; a right to privacy

in employee records, Submission at 13; and public policy. Submission at 14.

But none of these are valid reasons to quash any portion of the State’s

subpoena duces tecum.

In prior quo warranto cases, Missouri Courts have not recognized

privileges, including the grand jury privilege. The informer’s privilege cannot

be invoked to quash requests, but only to conceal the identity of informers. No

14
separate “public interest privilege” exists in Missouri law. The deliberative

process privilege has not been recognized in Missouri and is not applicable in

any event. Privacy in employee files is not absolute. Public policy is not a

privilege or a grounds to quash a subpoena. And because the requestor is the

State, many of these privileges cannot be invoked to prevent the State from

obtaining the State’s files.

Privileges do not apply in a quo warranto action against

the prosecuting attorney.

Even to the extent that applicable common-law privileges exist in other

cases, those privileges cannot be used to shield an elected official from charges

of misconduct in office. State ex inf. Dalton v. Moody, 325 S.W.2d 21, 24–25

(Mo. 1959). In Moody, a prosecutor was accused of misconduct involving

charges brought before the grand jury. Id. Although grand jury proceedings

are normally secret, the Missouri Supreme Court found that the quo warranto

court properly compelled testimony and documents from the grand jury. The

Court found that:

‘Where a district attorney is charged with official misconduct, the

reasons for refusal to apply the rule of secrecy are peculiarly
strong. ‘He cannot seek shelter behind that rule of secrecy to
prevent inquiry into his malfeasance or misfeasance in office.
When the reason for the rule of secrecy ceases, the rule itself
becomes inoperative. Any other principle would permit a
dishonest, corrupt, and vicious district attorney to use the great
power of his office and his influence with the grand jury as an
engine of oppression, and be entirely safe from inquiry under a seal

15
 of secrecy which would prevent investigation. That is not the law.
That would be perversion, and not enforcement of the rule.’

Id. at 26 (quoting People ex rel. Hirschberg v. Board of Supervisors of Orange

County, 251 N.Y. 156, 170 (1956)).

Thus, even to the extent that common law privileges exist that would

prevent the disclosure of records related to the Circuit Attorney’s Office’s

criminal cases, witnesses, and victim information, the reasons for those

privileges do not apply in this case, where the State is bringing an action on

behalf of the public to remove an elected official who has forfeited her office

through misconduct. Id. The Circuit Attorney’s Office cannot use common-law

privileges designed to protect the public to hide evidence of Gardner’s

misconduct. Instead, the privileges must give way in the interests of justice.

Id.

The Circuit Attorney’s Office has not satisfied the

informer’s privilege, and even if it had, the privilege only
protects the identities of informers.

The Circuit Attorney’s Office invokes the informer’s privilege to prevent

disclosure of any communications from anyone it deems to be an “informer” as

well as documents reflecting the number of warrant applications; the number

of cases, their identities, and communications about cases dismissed and

refiled by the Circuit Attorney’s Office; and complaints received by victims.

Submission at 10. But the Circuit Attorney’s Office has not satisfied the

16
requirements of the privilege and the privilege protects only the identities of

informers, not the contents of their statements.

It is black letter law that the informer’s privilege applies only to the

identities of informers, not the content of their statements. See, e.g., § 509,

Informer’s Privilege, 33 Mo. Prac., Courtroom Handbook on Mo. Evid. Prin.

§ 509 (2022 ed.) (“The Government has a qualified privilege not to disclose the

identities of persons who provide it with information about illegal activities or

other matters of public concern.”); Ex parte McClelland, 521 S.W.2d 481, 484

(St.L. D. 1975) (“[The informer’s privilege] applies only to the identity of the

informant not to his communication.”). In criminal cases, the identity of

confidential informants is protected by Rule 25.10(b). 6

Next, the Circuit Attorney’s Office argues that there are no limitations

to the informer’s privilege. Submission at 9. The privilege is not unlimited. See,

e.g., § 509.1 Generally, 33 Mo. Prac., Courtroom Handbook on Mo. Evid. § 509.1

(2022 ed.) (subpart b. “balancing test”).

The Circuit Attorney’s Office has made no effort to bring its objection in

line with Missouri law. The State is not seeking the identity of confidential

6 The cases relied on by the Circuit Attorney’s Office that appear to

extend the informer’s privilege to the contents of the communication can be
traced back to State v. Yates, 442 S.W.2d 21, 26 (Mo. 1969), a case where the
Missouri Supreme Court held there was no general right of discovery to the
State’s files. Yates has been supplanted by Rule 25, which was adopted nearly
10 years after Yates.

17
informants; the State is seeking: internal communications about various office

administrations (Request 18), documents related to the cases identified in the

petition (Request 24), documents related to the number of warrant applications

(Requests 38 and 43), documents relating to the dismissal and refiling of cases

(Request 54), and complaints from victims (Request 59). The Circuit Attorney’s

Office does not allege, or even suggest, that any document responsive to these

requests will contain the identity of a confidential informant.

Instead, the Circuit Attorney’s Office argues—without support—that “it

is the very State from whom informers need protection . . . .” Submission at 9.

That argument files in the face of Missouri law, which holds that “Generally,

the state has the privilege to withhold from disclosure the identity of persons

who furnish information of violations of law to law enforcement officers.”

Moody v. Hicks, 956 S.W.2d 398, 400 (Mo. App. 1997) (emphasis added). And,

as explained in point II.G, the Attorney General is the chief legal officer, and

it is the State that is bringing this action. Accordingly, the Circuit Attorney’s

Office cannot invoke the State’s privilege against the State. This privilege must

be rejected.

The Circuit Attorney’s Office has not identified any “public

interest privilege.”

In its response, the Circuit Attorney’s Office again claims that Missouri

law recognizes an independent privilege called the “public interest privilege.”

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Submission at 10–12. But the Circuit Attorney’s Office never identifies a single

case that relies on this privilege. Id. Instead, the Circuit Attorney’s Office

attempts to create the privilege from an amalgamation of five cases: Hyde v.

City of Columbia, 637 S.W.2d 251 (Mo. App. 1982); St. Louis Little Rock Hosp.,

Inc. v. Gaertner, 682 S.W.2d 146 (Mo. App. 1984); Friedman, 668 S.W.2d at 76

(Mo. App. 1984); State ex rel. Wohl v. Sprague, 711 S.W.2d 583 (Mo. App. 1986);

State ex rel. Anheuser v. Nolan, 692 S.W.2d 325 (Mo. App. 1985); and State ex

rel. Ford Motor Co. v. Messina, 71 S.W.3d 602 (Mo. 2002). None of these cases

create, recognize, or otherwise stand for the notion of an independent “public

interest privilege.”

The Circuit Attorney’s Office’s lead case is Hyde v. City of Columbia.

Submission at 10. But Hyde does not aid the Circuit Attorney’s Office. In Hyde,

the plaintiff had sued the City of Columbia and news organizations for the

publication of the plaintiff’s address. 637 S.W.2d 251, 253 (Mo. App. 1982).

The news organizations won dismissal at the trial court for failure to state a

claim, and the City of Columbia won dismissal on its argument that the

Missouri Sunshine Law made the plaintiff’s address a public record. Id. On

appeal, the Missouri Court of Appeals reversed. Id. at 273.

The Circuit Attorney’s Office cites a portion of the opinion where the

court was discussing various exceptions to other states’ open records laws.

Compare Submission at 10 with Hyde, 637 S.W.2d at 260 (“The exemptions

19
represent a balance struck between the right of the public to know the activity

of government and the equally public interest that the records of certain

governmental functions remain free from disclosure.”). At the conclusion of the

court’s analysis, it held: “To avoid an absurd-even unlawful-application of the

statute as written, we determine that the name and address of a victim of crime

who can identify an assailant not yet in custody is not a public record under

the Sunshine Law.” Id. at 263. In other words, Hyde is not a case that creates

or recognizes a “public interest privilege,” it is a case that interpreted the

Missouri Sunshine Law as written in 1982. Id. Hyde is, therefore, of no use to

the Circuit Attorney’s Office in this case, because the State is seeking

documents through a subpoena, not a Sunshine Law request.

In St. Louis Little Rock Hospital, Inc., the Court of Appeals considered

whether the attorney-client privilege, work-product privilege, or physician-

patient privilege barred discovery of requested documents. 682 S.W.2d 146,

149 (Mo. App. 1984). But the Circuit Attorney’s Office cites the case for the

broad principle that “the interest in disclosure must always be ‘weighed

against the public’s interest in the confidentiality of the privileged

relationship.’” Submission at 10. The portion of the quote presented by the

Circuit Attorney’s Office is actually an analysis of when the physician-patient

privilege may be overcome. Id. at 151. The Court of Appeals wrote:

20
 That the hospital files are privileged does not necessarily end our
inquiry. Where there is a need for or public interest in discovery of
material protected by a privilege, disclosure of the privileged
communications may be compelled, provided adequate steps are
taken to insure that those on whose behalf the privilege is asserted
will not suffer possible disclosure and humiliation or
embarrassment. See State ex rel. Lester E. Cox Medical Center v.
Keet, 678 S.W.2d 813 (Mo. banc 1984). In order to justify even
limited disclosure via in camera proceedings, however, the public’s
interest in disclosure must be weighed against the public’s interest
in the confidentiality of the privileged relationship. See generally
State ex rel. Friedman v. Provaznik, 668 S.W.2d 76, 78 (Mo. banc
1984) (grand jury inquiry justifies limited disclosure of material
possibly subject to attorney-client privilege).

In other words, St. Louis Little Rock Hospital, Inc., does not create or

recognize the existence of an independent “public interest privilege.” Instead,

the case hurts the Circuit Attorney’s Office’s position because it shows that,

sometimes, otherwise privileged files must be produced.

In Friedman, our Missouri Supreme Court considered a discovery

dispute where a grand jury was seeking to obtain attorney-client materials

from a school district. 668 S.W.2d at 77–78. The Missouri Supreme Court

allowed the grand jury subpoena to proceed so that the grand jury could recover

the documents, including the identities of an attorney’s clients, after an in

camera review. Id. at 78, 80–81. The Circuit Attorney’s Office cites the case for

the proposition that the “Court must regard preservation of the societal

expectation of confidentiality as a fundamental objective.” Submission at 11.

But the Court was describing the approach toward the expectation of

21
confidentiality in the existence of an attorney-client relationship, not the

expectation of confidentiality generally. Id. at 78. In context, Friedman

provides no support for the idea of an independent “public interest privilege.”

Finally, the Circuit Attorney’s Office cites Wohl, 711 S.W.2d at 583,

Anheuser, 692 S.W.2d at 325, and Messina, 71 S.W.3d at 602, for the anodyne

proposition that courts should consider the burden of production when

adjudicating discovery requests. Submission at 11. In Wohl, the court held that

trial courts must consider the needs of the party requesting discovery and the

burden imposed on the party producing discovery. Id. at 585. In Anheuser, the

Court of Appeals issued the same holding. Anheuser, 692 S.W.2d at 328.

Similarly, in Ford Motor Co., our Missouri Supreme Court held that parties

should first pursue discovery from means that are available and less

burdensome than top-level depositions, including by a corporate representative

deposition. 71 S.W.3d 602, 608 (Mo. 2002). These cases merely stand for

traditional principles governing discovery. They neither created nor recognized

the existence of a “public interest privilege.”

In short, none of the Circuit Attorney’s Office’s proffered cases involve a

separate “public interest privilege.” Moreover, the Circuit Attorney’s Office’s

efforts to crouch behind a non-existent “public interest privilege” is perverse.

It is not in the public’s interest to lengthen these proceedings; it is in the

22
public’s interest to know whether Gardner has forfeited her office and is merely

a usurper of the office of Circuit Attorney.

Thus, the Circuit Attorney’s Office should be working hard to produce

any and all relevant information in a timely fashion. As this Court previously

stated, “time is of the essence.” Hrg. Tr. 17-18. Instead, by dragging out

discovery, the Circuit Attorney’s Office appears to be attempting to insulate

Gardner from any sort of meaningful examination of her conduct in office.

In sum, there is no public interest privilege, and the Circuit Attorney’s

Office cannot rely on a non-existent privilege to withhold documents. The

Court should not countenance further efforts to delay discovery. Indeed,

prompt discovery will only further the public interest in this case. The Court

should order the Circuit Attorney’s Office to comply with the State’s discovery

requests.

The deliberative process privilege has not been recognized

in Missouri and the Circuit Attorney’s Office has not even
attempted to satisfy the privilege’s requirements.

Weeks ago, the State pointed out that the deliberative process privilege

has not be recognized in Missouri, and has only been discussed in a single case:

Missouri Protection and Advocacy Services v. Allen, 787 S.W.2d 291, 295 (Mo.

App. 1990). Sugg. in Opp. 35–36. 7 In response, the Circuit Attorney’s Office

7The State will refer to its initial response in opposition to the Circuit
Attorney’s Office’s motion to quash as “Sugg. in Opp.”

23
argues that the privilege is available in Missouri. Submission at 13. But Allen

states: “No case authority has been presented in this appeal which would allow

the state agency recipient of a federal agency document to claim a FOIA

exception for the document . . . .” Allen, 787 S.W.2d at 294. And in Allen, the

court held that the deliberative process privilege did “not pass muster under

Missouri Law. . . .” Id. at 295.

The Circuit Attorney’s Office has the burden of proving the privilege

applies because it is the party invoking the privilege. Westbrooke, 151 S.W.3d

at 367; see also 22 Mo. Prac., Missouri Evidence § 501:1 (4th ed.). It has not

done so.

Even if the deliberative process privilege were recognized in Missouri,

which it is not, the Circuit Attorney’s Office has not even attempted to meet

the privilege’s requirements. The deliberative process privilege “protects

advice, recommendations, and opinions that are part of the decision making

process of the government.” Id.; accord Judicial Watch, Inc. v. United States

Department of Justice, 20 F.4th 49, 52–53 (D.C. Cir. 2021). Judicial Watch

holds that the deliberative process privilege, “Protects inter-agency or intra-

agency memorandums or letters that would not be available by law to a party

other than an agency in litigation with the agency.” Id. A party asserting the

privilege must provide an index, similar to a privilege log that, at the very

least, identifies each document sought to be withheld, as well as a general

24
description of each document’s contents, including the date, time, and place of

creation, and an explanation of why the deliberative process privilege applies

to the document. Missouri Coalition for the Environment Foundation v. U.S.

Army Corps of Engineers, 542 F.3d 1204, 1209–10 (8th Cir. 2008).

The State pointed out these authorities weeks ago. Sugg. in Opp. at 35–

36. The Circuit Attorney’s Office has not disputed this. Submission at 13. More

importantly, the Circuit Attorney’s Office has provided no index of documents,

no privilege log, and no explanation for its failure. Instead, the Circuit

Attorney’s Office appears to be merely making form objections in an effort to

delay discovery. Submission at 13. In Missouri, privilege cannot be used as

both a “shield and a dagger at one and the same time[.]” St. John’s, 90 S.W.3d

at 215–16 (citation omitted). The Circuit Attorney’s failure and delay amounts

to wavier. See State v. Williams, 427 S.W.3d 259, 267 (Mo. App. 2014).

The Circuit Attorney’s Office has failed to show that the

“law enforcement privilege” is recognized by Missouri law.

In its submission, the Circuit Attorney’s Office tries to take the State to

task for not citing case law invalidating the so-called “law enforcement

privilege.” Submission 12. But in Missouri, the Circuit Attorney’s Office—as

the party invoking privilege—has the burden of proving the privilege applies.

Westbrooke, 151 S.W.3d at 367; see also 22 Mo. Prac., Missouri Evidence § 501:1

(4th ed.). The Circuit Attorney’s Office cites a single case: United States v.

25
Jean, 891 F.3d 712 (8th Cir. 2018). That is insufficient to show that Missouri

law recognizes the so-called law enforcement privilege.

Instead of defending its invocation of the privilege, the Circuit Attorney

claims that the State has failed to meet its burden to prove the privilege is

inapplicable. Submission at 13. But the burden starts with the Circuit

Attorney’s Office, and then it shifts to the State. Westbrooke, 151 S.W.3d at

367.

The Circuit Attorney’s Office has failed to show that the privilege is

recognized under Missouri law. Therefore, its objections on that ground are

ineffective and must be overruled.

Any privacy interests in employee files is overcome by the

importance of this case, by the tailored nature of the
requests, and by a protective order.

In a short two sentences, the Circuit Attorney’s Office invokes privacy

interests in employee records to prevent disclosure of any number of responsive

documents. 8 Submission at 13. The Circuit Attorney’s Office’s analysis is

incomplete.

In State ex rel. Delmar Gardens North Operating, LLC v. Gaertner, 239

S.W.3d 608, 612 (Mo. 2007), the Missouri Supreme Court held that privacy

The Circuit Attorney’s Office faults the State for requesting Gardner’s
8

personnel file, but the amended subpoena does not request Gardner’s
personnel file.

26
interests prevent a party from enforcing a subpoena for an employee’s entire

personnel file. Instead, requests must be limited to matters raised in the

pleadings. Id. That is exactly what the State has done.

Our Supreme Court requires the trial court to weigh the interests in

privacy against the State’s need to obtain “disclosure” and “to obtain the

information through less invasive means . . . .” Id. Here, the State’s need is

substantial. The Circuit Attorney’s Office is in shambles. Just last week, a

circuit judge described the office as appearing to be “a rudderless ship of chaos”

and explained that “[i]t does not appear [Gardner] has made any reasonable

efforts to prevent the resulting chaos.” Order, State v. Vincent, 2122-CR00600-

01 (St. Louis City Cir. Ct. Apr. 27, 2023). The circuit court continued, writing:

“It appears that Ms. Gardner has complete indifference to and a conscious

disregard of the judicial process.” Id. The State must act to protect its citizens,

restore order, and force the removal of those who have usurped their office

through willful neglect. The State’s interests here are at their zenith.

Employee privacy concerns can be addressed by protective orders. Delmar

Gardens, 239 S.W.3d at 613.

The Circuit Attorney’s Office’s argument that “public

policy” should prevent discovery is unavailing.

In its submission, the Circuit Attorney’s Office insists that public policy

“is a valid ground for quashing a subpoena.” Submission at 14. In support, the

27
Circuit Attorney’s Office relies on § 491.100 and Rule 57.09(b). Id. But both of

these authorities stand for the simple proposition that courts should consider

the reasonableness of the requests and whether they are oppressive or

burdensome. None of that is “public policy.” To the extent that “public policy”

impacts the Court’s analysis, it weighs in favor of disclosure. See, e.g., State v.

Carter, 641 S.W.2d 54, 58 (Mo. 1982) (stating all parties have “a direct interest

in a accurate, just, and informed verdict based upon all available relevant and

material evidence bearing on the question.”).

Indeed, the Circuit Attorney’s Office’s efforts to rely on “public policy” to

avoid disclosure is antithetical to these proceedings. It is in the public’s interest

to know whether Gardner has forfeited her office and is merely a usurper of

the office of Circuit Attorney. See, e.g., State ex inf. Ellis ex rel. Patterson v.

Ferguson, 65 S.W.2d 97, 98 (Mo. 1933). In other words, prompt discovery in

this case is good public policy. The Court should order the Circuit Attorney’s

Office to comply with the State’s discovery requests.

The Circuit Attorney’s Office’s invocation of privilege over

the State’s files fails where, as here, the State is the party
seeking the materials.

The State is represented by the Attorney General, and this action is

brought for the protection of the public interest. See, e.g., Ferguson, 65 S.W.2d

at 98; see also State ex inf. McKittrick v. Wymore, 119 S.W.2d 941, 943 (Mo.

1938). In other words, the State brings this suit to protect the public and to

28
vindicate the state’s interest in public officers who are not usurpers. See

Wymore, 119 S.W.2d at 943. In this context, the Circuit Attorney’s Office—a

creature of state statute—cannot invoke a privilege to prevent the State from

obtaining discovery.

The Circuit Attorney’s Office—like all local prosecutor’s offices—is a

creation of state statute. § 56.430; see also Attorneys at Law, § 4 (1840)

(providing that circuit attorneys are to be appointed by the Missouri Supreme

Court). The Circuit Attorney is normally obligated to represent the State in all

criminal cases where the circuit court of the City of St. Louis has jurisdiction.

§ 56.450. As a result, all files, documents, communications, and information in

the hands of the Circuit Attorney’s Office belong to the State. § 56.450; see also

in the Matters of Cupples, 952 S.W.2d 226, 234 (Mo. 1997) (“The client’s files

belong to the client, not to the attorney representing the client.”).

In this quo warranto action, the Attorney General represents the State.

Ferguson, 65 S.W.2d at 98; see also Wymore, 119 S.W.2d at 943. He is the chief

legal officer for the State. State v. Todd, 433 S.W.2d 550, 554 (Mo. 1968).

Therefore, the Circuit Attorney’s Office may not invoke privilege to keep the

client’s files from being returned to the client. In other words, the Circuit

Attorney’s Office may not invoke privilege against the State.

29
III. None of the State’s requests should be quashed.

The State will address each of the Circuit Attorney’s Office’s objections

in turn. The State does not waive any argument it made in its original response

to the motion to quash. Importantly, the State has informed the Circuit

Attorney’s Office that, unless the request has an internal time limitation or

otherwise requests documents from a specific time period, the request is

limited to the period of time from January 1, 2017, to present.

The Circuit Attorney’s Office has agreed to produce responsive records

to these requests “except employee salary information” because the Circuit

Attorney’s Office believes there are employee privacy interests in the amount

of the public employee’s salary. Submission at 15. The Circuit Attorney’s Office

is wrong; public employee salary information is a public record under the

Sunshine Law. § 610.021(13) (declaring that individually identifiable

personnel records are closed “except . . . names, positions, salaries and lengths

of service of officers and employees of public agencies . . .”). Therefore, there

cannot be a privacy interest.

30
 In its submission, the Circuit Attorney’s Office both claims that there are

no responsive documents and that even if there were responsive documents,

they would be irrelevant and disclosure would violate employee privacy

principles. Submission at 16. The State pointed out the relevance of Gardner’s

timesheets in its suggestions in opposition on April 17, and the Circuit

Attorney’s Office has not tried to oppose those arguments.

In addition, Gardner is required to devote her “entire time and energy to

the discharge of [her] official duties . . . .” § 56.445. The alleged employee

privacy concerns do not justify quashing this request. Employee privacy

concerns can be addressed by protective orders. Delmar Gardens, 239 S.W.3d

at 613. The State’s need for this information is great because Gardner is

required to devote her “entire time and energy” to the office, and because the

State has alleged that Gardner has willfully neglected her duties.

If the Circuit Attorney’s Office does not maintain timesheets—including

the use of leave—for Gardner, then the State will accept that written answer

from the Circuit Attorney’s Office.

31
 In its submission, the Circuit Attorney’s Office asserts, “Relator does not

explain how an intrusion of this magnitude could possibly be justified under

the allegations of the Amended Petition, stating only in a conclusory fashion

that ‘Respondent’s experience and performance as an assistant circuit attorney

is relevant to the issues presented in this case.’” Submission at 16 (emphasis

added). This argument incorrectly truncates the State’s actual assertion of

relevance. Sugg. in Opp. at 9. In response to the Circuit Attorney’s original

motion to quash, the State asserted:

Throughout the amended petition in quo warranto, the State has

alleged that Respondent has “willfully violated or neglected, or
knowingly or willfully failed or refused to perform” various duties
of her office. See, e.g., Am. Pet. at ¶ 194. The State’s allegations
include that Respondent has failed to supervise and train her
assistant circuit attorneys and her staff. Id. at ¶¶ 7, 138, 195, 276,
351–469. As shown by Respondent’s motion to dismiss,
Respondent intends to raise a defense that her assistants have
failed, but that she has not. See Mot. to Dismiss at 18–22.
Respondent’s experience and performance as an assistant circuit
attorney is relevant to the issues presented in this case.

Sugg. in Opp. at 9.

Having no response to the State’s actual assertion of relevance, the

Circuit Attorney’s Office instead chooses to act as if the State’s argument does

not exist. Submission at 16. But it does, and this Court should order the Circuit

Attorney’s Office to comply with the subpoena request. See Sugg. in Opp. at 9.

32
 In addition, it appears that Gardner intends to rely on her experience as

an assistant circuit attorney for a defense to the State’s allegations in the

amended petition. In fact, Gardner recently made public statements discussing

her time as an assistant circuit attorney and its relation to the State’s

allegations here (and the St. Louis City Circuit Court’s charges of contempt);

she stated: “That’s a real description that’s not me making that up that’s a real

description that I’ve seen when I was an assistant circuit attorney and I said

get out of here we’re not doing that. But see when you do the right thing and

you stand in the face of power . . . .” Mark Maxwell (@MarkMaxwellTV),

Twitter (Apr. 29, 2023, 12:25 P.M.), https://twitter.com/MarkMaxwellTV/

status/1652363447495958528.

The Circuit Attorney’s Office also makes a conclusory assertion that

“these requests implicate employee privacy and call for information shieled

[sic] from protection under Missouri law.” Submission at 16. The Circuit

Attorney’s Office cites Delmar Gardens in support of this argument, but

Delmar Gardens provides the Circuit Attorney’s Office no refuge. In Delmar

Gardens, the Missouri Supreme Court held that privacy interests prevent a

party from enforcing a subpoena for an employee’s entire personnel file. 239

S.W.3d at 612. Instead, requests must be limited to matters raised in the

pleadings. Id. That is exactly what the State has done here.

33
 Our Supreme Court requires the trial court to weigh the interests in

privacy against the State’s need to obtain “disclosure” and “to obtain the

information through less invasive means . . . .” Id. As discussed throughout

this response, the State’s need is substantial. The Circuit Attorney’s Office is

in shambles. Just last week, a circuit judge described the office as “a rudderless

ship of chaos.” Order, State v. Vincent, 2122-CR00600-01 (St. Louis City Cir.

Ct. Apr. 27, 2023). The State must act to protect its citizens, restore order, and

force the removal of those who have usurped their office through willful neglect

and knowing failure to perform required duties. The State’s interests here are

at their zenith. While the Circuit Attorney’s Office’s conclusory statement that

the request “implicates employee privacy” makes it difficult to understand

what their specific privacy concern is, any concern can be addressed by a

protective order. Delmar Gardens, 239 S.W.3d at 613.

And, as for request number 9, the Circuit Attorney’s Office cannot

articulate any reasonable argument that Gardner has a cognizable privacy

interest in a list of the cases she has tried while representing the people’s

interests as a representative of Missouri’s sovereign and public authority to

prosecute offenders. See generally State v. Harrington, 534 S.W.2d 44, 49 (Mo.

1976) (quoting Biemel v. State, 37 N.W. 244, 245–48 (Wis. 1888) (“[A

prosecuting attorney’s] object, like that of the court, should be simply justice;

and [s]he has no right to sacrifice this to the pride of professional success[.]”)).

34
This Court should order the Circuit Attorney’s Office to comply with this

request.

In the amended petition for quo warranto, the State has alleged that

Gardner has “mismanaged her office finances . . . .” Am. Pet. at 3; see also Am.

Pet. at ¶¶ 500–504. Gardner has been Circuit Attorney since 2017, and her

office’s budget documents—draft and approved—are relevant to the claims

pled in the amended petition. See, e.g., id. at ¶¶ 500–504. The Circuit

Attorneys’ Office’s argument that these paragraphs are “far too thin a reed” is

incorrect. Submission at 17. But even setting that aside, as shown by her

motion to dismiss and her amended answer, Gardner intends to raise a defense

that her assistants have failed, but she has not. See Mot. to Dismiss at 18–22;

see also Ans. at Affirmative Def. ¶ 12.

Additionally, Gardner has made many public statements alleging that

the cause of her failures at issue in the amended petition is a lack of funding

for her office. In fact, Gardner made one such public comment on Saturday,

April 29, 2023. Mark Maxwell (@MarkMaxwellTV), Twitter (Apr. 29, 2023,

2:04 PM), https://twitter.com/MarkMaxwellTV/status/ 1652358317191188485/

35
video/1 (“I’m more than a leader. I’ve been leading an organization that has

been purposefully disinvested from day one.”).

As for the emails and text messages from her employees about the

drafting and approval of her office’s budget, Gardner’s own answers have

placed those communications at issue. Indeed, Gardner appears to be claiming

that she did not have personal knowledge of “any purported mistake of an

employee in the Circuit Attorney’s Office.” Ans. at Affirmative Def. ¶ 12. And

because Gardner appears to be claiming that she may not have “ordered,

approved, or ratified the conduct at issue” in the State’s claims, id.,

communications between Gardner’s staff and communications between

Gardner and her staff are relevant. This Court should order the Circuit

Attorney’s Office to comply with this request.

In its submission, the Circuit Attorney’s Office has alleged that this

request is abusive, improper, and irrelevant. Submission at 18. The Circuit

Attorney’s Office offers no reasons to support its conclusions. Id. In arguing

that the State’s proffer as to relevance for this request “borders on the

incomprehensible[,]” id., the Circuit Attorney’s Office is being willfully obtuse

because it knows that its victim advocates and victim services are funded, at

least partially, by grants. The State has claimed that Gardner has violated the

36
constitutional and statutory rights of victims by failing to comply with the

victims’ rights provisions of Missouri law. Am Pet. at ¶¶ 523–628. The

presence, absence, and failure to spend grant funding for victim’s services is

directly relevant to the State’s claims that Gardner has violated the

constitutional and statutory rights of victims.

Further, the State has claimed that Gardner has failed to staff her office.

Id. at ¶¶ 351–469. And the State has alleged that these failures amount to a

willful neglect of Gardner’s duties. Gardner, for her part, has made many

public statements alleging that the cause of her office’s problems is a lack of

funding. In fact, Gardner made one such public comment on Saturday, April

29, 2023. Mark Maxwell (@MarkMaxwellTV), Twitter (Apr. 29, 2023, 2:04 PM),

https://twitter.com/MarkMaxwellTV/status/1652358317191188485/video/1

(“I’m more than a leader. I’ve been leading an organization that has been

purposefully disinvested from day one.”).

The Circuit Attorney’s Office has agreed to produce only responsive

records that have been entered into PBK. Submission at 18. That does not

satisfy the State’s request. The Circuit Attorney’s Office has objected to the

remainder of this request on the grounds that production of records not entered

37
into PBK would be too burdensome, and that records that it did not enter are

not “responsive to the claims in the Amended Petition.” Submission at 18. The

Circuit Attorney’s Office is wrong. The State has alleged that the Circuit

Attorney’s Office has failed to timely review warrant applications. Am. Pet. at

¶¶ 5, 200, 206–263. The Circuit Attorney’s Office’s response tacitly admits that

there are a group of warrant applications that it reviewed and then found to

be deficient. Submission at 18–19. That is relevant and responsive.

Further, the Circuit Attorney’s Office has not followed this Court’s

instruction to identify what the burden is in producing the records, other than

to say that the records are not in PBK. However, for warrant applications

submitted beginning at some time in 2020, the documents should have been

submitted by email, and the Circuit Attorney’s Office has agreed to produce

the addresses for those email accounts. Submission at 32. Because at least

those records are easily producible from the email accounts, there is not an

undue burden on the Circuit Attorney’s Office. Neither the State nor the Court

can address the rest of the Circuit Attorney’s Office’s burden argument

because, despite this Court’s instruction, the Circuit Attorney’s Office provided

no information about the time, cost, or effort required. Hrg. Tr. at 38–39.

Therefore, the objection should be denied.

38
 The Circuit Attorney’s Office has agreed to produce written policies, and

has not made any objection about the corporate representative deposition

under Rule 57.03(b)(4). Submission at 19.

The Circuit Attorney’s Office has objected to making any production in

response to Request 18 on the grounds that producing any emails or text

messages from anyone would be unduly burdensome in that it would take

“hundreds of hours and the cost would be prohibitive” and because the Circuit

Attorney’s Office says it cannot accomplish a search on “the current timeline.”

Submission at 20. The Circuit Attorney’s Office also asserts that all of its

emails and text messages are privileged under the informer’s privilege, the

39
public interest privilege, the law enforcement privilege, and the deliberative

process privilege. Id. at 20–21.

The Circuit Attorney’s Office’s objections are meritless. The benefit of

production will outweigh the burden of production. Emails and text messages

between the executive team—which, upon information and belief, is less than

10% of the total FTEs for the office—on these topics goes directly to Gardner’s

assertions that she was unaware, or lacked personal knowledge, of the events

described in the amended petition. Ans. at Affirmative Def. ¶ 12. The Circuit

Attorney’s Office’s claim that it would take too long to search for and produce

records is self-serving and contradicted by Gardner’s recent conduct. This

request is largely a request filed on March 1, 2023. The Circuit Attorney’s

Office has had nearly two months to prepare for, to search for, and to produce

emails and text messages on these topics. To claim now that there is not

enough time is simply part of their strategy of delay.

Moreover, Gardner has demonstrated that she can search for and obtain

the requested information in a timely fashion. Just last week, Gardner was

ordered to show cause why she should not be held in contempt for her office’s

failure to appear for a jury trial. Order, State v. Jones, 2222-CR01348-01 (St.

Louis City Cir. Ct. April 17, 2023). In order to avoid a contempt finding,

Gardner produced text messages between her subordinates. Exhibit B to

Response to Order to Show Cause, State v. Jones, 2222-CR01348-01 (St. Louis

40
City Cir. Ct. April 21, 2023). The text messages discuss decision-making, the

text messages appear to be between employees on their private phones, and

the text messages use the names of witnesses in a discussion analyzing the

relevant importance of the witnesses to the case. Id. She also performed an

email search. Exhibits A & C to Response to Order to Show Cause, State v.

Jones, 2222-CR01348-01 (St. Louis City Cir. Ct. April 21, 2023). The email

search included emails sent by Gardner.

Not only did Gardner produce all of this information in four days, she

filed it in a document publicly available on Missouri Case.net. In light of her

actions in the Jones case, she cannot now raise burden, privilege, or related

arguments. See, e.g., St. John’s, 90 S.W.3d at 215 (“The so-called ‘fairness

doctrine’ is grounded in the notion that it is unfair to permit a party to make

use of privileged information as a sword when it is advantageous for the

privilege holder to do so, and then as a shield when the party opponent seeks

to use privileged information that might be harmful to the privilege holder.”).

Finally, the Circuit Attorney’s Office’s invocation of privilege here is

woefully deficient. It has identified no specific documents and has instead

made blanket assertions of privilege. Submission at 20–21. Despite this Court’s

instruction that she prepare a privilege log, or address how a privilege log

would not be practical, the Circuit Attorney’s Office has done neither. In

addition, as explained in point II.B, the informer’s privilege is not applicable.

41
As described in point II.E, the law enforcement privilege is not applicable. As

explained in point II.C, the purported public interest privilege is not

applicable. And as explained in point II.D, the deliberative process privilege is

not applicable.

The Circuit Attorney’s Office has merely restated its objections to

request 18 in response to request 19. Submission at 22. These objections fail

for the same reasons.

The Circuit Attorney’s Office has said that it “is not opposed to

furnishing this information.” Submission at 22. The State has not told the

Circuit Attorney’s Office that it requires the information to be from a particular

date and time. But, the Circuit Attorney’s Office has had weeks to produce this

information, and the Court should order it to do so without further delay.

42
 The Circuit Attorney’s Office has indicated that “upon information and

belief” there are no responsive documents. Submission at 22. The Circuit

Attorney’s Office should be directed to complete its search without further

delay.

The Circuit Attorney’s Office has agreed to produce written policies.

Submission at 23. It has offered no objections, including no objections to

discussion of oral policies in a deposition under Rule 57.03(b)(4).

The Circuit Attorney’s Office asserts that this request is “wholly

irrelevant” to any issue pled in the amended petition. Submission at 23. In its

original response in opposition to the motion to quash, the State asserted:

In the amended petition, the State has raised claims that

Respondent has “mismanaged her office finances. . . .” Am. Pet. at
3; see also Am. Pet. at ¶¶ 500–504, 511. The State’s claims extend
to a circuit court injunction regarding payments made to the firms
listed in this request. Id. at ¶ 511. Therefore, this request is related
to a claim pled in the petition and should be discoverable.

Sugg. in Opp. at 17. As is now the pattern, instead of addressing the full

assertion of relevance, the Circuit Attorney’s Office addresses only a part of

the response. Submission at 23. In the amended petition, the State pled that

43
Gardner has burdened the City of St. Louis with “excessive and unwarranted

legal fees.” Am. Pet. at ¶ 505. And the State included several factual assertions

about the ballooning legal fees under Gardner and a law suit filed in response.

Id. at ¶¶ 506–20. These factual assertions pled that Gardner has wasted

taxpayer money by hiring counsel from around the United States with hourly

rates of up to $540 for wasteful litigation. Id. at ¶ 519. These agreements,

contracts, and invoices are relevant and discoverable.

As to the assertions of attorney-client privilege and the work product

doctrine, the State does not seek itemized lists of activities or communications

between counsel, Gardner, and the Circuit Attorney’s Office. And Gardner has

provided the unredacted invoices for payment to the Comptroller’s Office. That

act of providing the invoices to a third party waives the privilege. Indeed, “[a]

client waives the attorney-client privilege when [s]he voluntarily shares the

communication with a third party.” Lipton Realty, Inc. v. St. Louis Hous. Auth.,

705 S.W.2d 565, 570 (Mo. App. 1986); accord State ex rel. Garrabrant v. Holden,

633 S.W.3d 356, 360 (Mo. 2021). While there may be some documents that are

properly protected by the attorney-client privilege, the Circuit Attorney’s

Office, despite being given at least two opportunities, has only made a blanket

assertion of privilege that has failed to identify any allegedly privileged

document, let alone provide the information necessary to determine the

44
existence or applicability of a privilege. The Court should order the Circuit

Attorney to produce these documents or to produce them for in camera review.

The Circuit Attorney’s Office objects to request 24 on the grounds that it

is overly broad and unduly burdensome. Submission at 24. These objections

are meritless. The request is limited in number—the identified cases in the

amended petition—and in scope—the reports, warrant applications, and

communications on particular topics. The requests all relate to claims made in

the amended petition: that Gardner has failed to staff her office, that she has

failed to timely review warrant applications, that she has failed to

communicate with victims, and that her office has been sanctioned for these

failures. Am. Pet. at ¶¶ 198–263, 278–327, 351–469, 522–628. Although the

Circuit Attorney’s Office has claimed the burden of production is high, it has

done nothing to explain why, despite the Court’s instruction to do so. Hrg. Tr.

at 57–58.

45
 In addition, the Circuit Attorney’s Office makes a blanket assertion of

privilege, including the informant’s privilege, the law enforcement privilege,

the deliberative process privilege, and the public interest privilege. Submission

at 25. These blanket assertions are ineffective. See Westbrooke, 151 S.W.3d at

367. They are also contrary to the Court’s instruction that the Circuit

Attorney’s Office should make a privilege log or explain why a privilege log

cannot address its concerns. Hrg. Tr. at 57–58. Moreover, these privileges are

inapplicable as explained in points II.B (informer’s privilege), II.C (purported

public interest privilege), II.D (deliberative process privilege), and II.E (law

enforcement privilege).

The Circuit Attorney’s Office asserts that this request is “irrelevant to

any well-pled factual allegation[.]” Submission at 25. As with many of the

State’s requests, the Circuit Attorney’s Office just ignores any argument for

which it has no rational response. As the State asserted in its original response

to the Circuit Attorney’s Office’s motion to quash:

The State’s amended petition included several allegations

concerning Respondent and her office’s contact with the Vera
Institute, an organization that supports prosecuting attorneys it
has identified as reform prosecutors. Am. Pet. at ¶¶ 230–41. Those
allegations include assertions that Respondent has, at times,
delegated her charging authority to the Vera Institute. Id. at ¶ 231.
In support of those allegations, the State incorporated into its
amended petition a foreword written by Respondent in which she

46
 explained that she had reached out to the Vera Institute and
engaged them to review her office’s charging decisions. Id. at ¶ 232,
235–36. At the Vera Institute’s recommendation, Respondent and
her office dismissed approximately 25,000 pending “taken under
advisement” cases. Id. at ¶ 237. Respondent denied the State’s
allegation that, “At the Vera Institute’s recommendation,
Respondent dismissed approximately 25,000 pending “taken
under advisement” cases[,]” Id. at ¶ 237, but later raised an
affirmative defense that she had, in fact, ended the “taken under
advisement” practice. Ans. at Affirmative Def. ¶ 14. Especially in
the face of contradictory statements made by Respondent (both
publically in the foreword and in her answer), Respondent and her
office’s communications with the Vera Institute are relevant to the
issues presented here

Sugg. in Opp. at 18–19. Gardner has the duty to undertake a good-faith and

in-depth review of cases submitted to her by law enforcement. Am. Pet. at ¶¶

230–41; § 56.460, § 56.470; Wymore, 132 S.W.3d at 986–87. Gardner’s joint

statements with the Vera Institute indicate that she delegated that charging

authority and the obligation to review to the unelected Vera Institute. This

delegation included the dismissal of 25,000 cases and the adoption of new

charging standards. Am. Pet. at ¶¶ 230–41. The requested correspondence is

relevant to the facts pleaded in the State’s amended petition.

The Circuit Attorney’s Office also invokes the public-interest privilege.

As discussed above, the public-interest privilege has not been recognized by

Missouri’s courts. But even if the privilege were recognized in Missouri, the

Circuit Attorney’s Office’s conclusory assertion that this request “would violate

the public interest privilege” provides no argument for this Court to find that

47
the public’s interest is in allowing a prosecutor to outsource his or her charging

decisions—matters quite literally of life and death—to unelected third-party

entities and to then be able to obstruct any public review of that delegation on

an amorphous assertion of public-interest.

The Circuit Attorney’s Office’s invocation of the deliberative process

privilege fairs no better. First, and as discussed in section II.D, above, Missouri

courts do not recognize the deliberative process privilege. But even if they did,

the Circuit Attorney’s Office has not even attempted to meet the privilege’s

requirements. 9 The deliberative process privilege “protects advice,

recommendations, and opinions that are part of the decision making process of

the government.” Allen, 787 S.W.2d at 294; accord Judicial Watch, 20 F.4th at

52–53. Judicial Watch holds that the deliberative process privilege, “[p]rotects

inter-agency or intra-agency memorandums or letters that would not be

available by law to a party other than an agency in litigation with the agency.”

Id. A party asserting the privilege must provide an index, similar to a privilege

log that, at the very least, identifies each document sought to be withheld, as

well as a general description of each document’s contents, including the date,

time, and place of creation, and an explanation of why the deliberative process

9 To the extent the Circuit Attorney’s Office is invoking the exemption in

5 U.S.C. § 552(b)(5) protecting “inter-agency or intra-agency memorandums or
letters[,]” that section plainly does not apply to a state prosecutor’s office. See
5 U.S.C. § 551(a) (defining agency).

48
privilege applies to the document. Missouri Coalition for the Environment

Foundation, 542 F.3d at 1209–10.

The State pointed out these authorities weeks ago. Sugg. in Opp. at 35–

6. The Circuit Attorney’s Office has not disputed this. Submission at 13.

Despite this straightforward obligation, the Circuit Attorney’s Office has

provided no index of documents, no privilege log, and no explanation for its

failure. Instead, the Circuit Attorney’s Office appears to merely be making

form objections in an effort to delay these proceedings. Submission at 13, 25.

In Missouri, privilege cannot be used as both a “shield and a dagger at one and

the same time.” St. John’s, 90 S.W.3d at 215–16 (citation omitted). The Circuit

Attorney’s failure and delay amounts to wavier. See Williams, 427 S.W.3d at

267.

The State has voluntarily limited this request to severance, separation,

or post-employment restrictive covenants related to non-disparagement and

non-disclosure agreements. Hrg. Tr. at 63–65. Despite being present at the

hearing, the Circuit Attorney’s Office does not appear to recognize this

limitation. Submission at 26. Instead, it argues that the request is irrelevant

and likely to intrude on employee privacy. These objections are meritless.

49
Potential witnesses have expressed concern that the Circuit Attorney’s Office

will enforce non-disparagement agreements if they speak with the Attorney

General’s Office. The State should be able to discover these agreements.

As for the Circuit Attorney’s Office’s invocation of Delmar Gardens, that

case stands for the proposition that fishing expeditions asking for an

employee’s entire personnel file are impermissible. 239 S.W.3d at 612. Instead,

requests must be limited to matters raised in the pleadings. Id. That is exactly

what the State has done here as its limited request concerns the ability of

potential witnesses to speak truthfully about allegations contained in the

pleading without fear of retaliation by Gardner.

50
 These request paragraphs concern three specific employees or

contractors of the office. The State will address the relevance objections to each

employee or contractor separately before addressing the invocations of

privilege collectively.

Requests 27 through 30

These request paragraphs concern Maurice Foxworth. The Circuit

Attorney argues that these “requests are irrelevant to any well-pled

allegation[.]” Curiously, the Circuit Attorney’s Office takes this position,

despite being informed which factual allegations relate to Foxworth. Due to

the nature of the allegations, the State made the conscious choice to not include

Foxworth’s name in the amended petition, which is a public filing. But, because

the counsel for the Circuit Attorney’s Office has repeatedly used that discretion

as sword and shield in this litigation, the State now specifically asserts that

paragraphs 383 through 386 concern Foxworth.

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 Foxworth attended law school with Gardner, and upon information and

belief, his law license was suspended in approximately 2015; he does not

currently have a Missouri law license and he may reside in Virginia. Foxworth

serves as a senior-level advisor to Gardner, but is not employed by the Circuit

Attorney’s Office, because, based on information and belief, he is (or has been)

paid as an independent contractor to avoid having his wages garnished due to

an existing tax lien. See Director of Revenue, Collection Enforcement v. Maurice

D. Foxworth, 14SL-MC10388 (St. Louis City Cir. Ct.). Foxworth has worked

with Gardner since 2016 through the present. He was part of her transition

team in 2016 and continues to serve on the executive team for the Circuit

Attorney’s Office.

Foxworth has incorporated or founded a number of entities, which he

appears to own and control, including MoRoc Partners, LLC; B-Innovation,

LLC; Level 3.3 incorporated; B Innovation Foundation; and InnovationWorks,

LLC. In discovery in this matter, the Comptroller's Office has produced

documents showing payments made from the Circuit Attorney’s Office to

MoRoc Partners, LLC, totaling at least $216,500 for the period of time from

February 2017 to the present. And this number is almost certainly an

undercounting of the monies paid to Foxworth because the records of invoices

do not appear to be complete. The corporate representative deposition for the

Comptroller’s Office is set for May 11, 2023, at which time the State expects

52
that it will learn more about the Circuit Attorney’s Office’s payments to, and

contracts with Foxworth and his entities. But this discovery is not duplicative

because the Circuit Attorney’s Office is the entity with whom Foxworth has

contracted through various corporations and legal entities. The Comptroller’s

Office will likely only have financial information concerning Foxworth and

would not be in possession of information regarding, or have knowledge of

Foxworth’s role in the office.

Foxworth’s role in the office is relevant to the issues pled in these

proceedings, but subsequent developments have also demonstrated the

relevance of the requests concerning Foxworth. Foxworth recently sent an

email dated April 24, 2023, to twelve lawyers who are, or appear to be, on

Gardner’s defense team, including the three KaiserDillon attorneys who are

representing the Circuit Attorney’s Office:

53
The email, which counsel for the Circuit Attorney’s Office sent to the Court and

the State’s attorneys, includes a courtesy copy of the Circuit Attorney’s motion

for Protective Order and to quash subpoenas to office employees. 10 Included

10 In that attached filing, counsel for the Circuit Attorney’s Office held

54
with that email, was an email from Foxworth also dated March 24, 2023. It

appears that Foxworth sent the filed motion to all twelve lawyers who are, or

appear to be, on Gardner’s defense team, and then the KaiserDillon lawyer

emailed the Court a courtesy copy. Thus, it appears that Foxworth has a role

in this case and may well be engaged in the unauthorized practice of law in

Missouri.

Further, on April 21, 2023, in Gardner’s response to an order to show

cause issued in State v. Jones, 2222-CR01348-01, concerning an allegation of

contempt, Gardner’s counsel in this proceeding attached a number of emails

and text messages that shed light on Foxworth’s role in the Circuit Attorney’s

Office. In one email dated March 21, 2023, Gardner stated, in pertinent part,

“Team, Please make sure you present cases on Thursday for a recommendation

or updates on any trial issues to the executive staff. This is not optional.”

Exhibit A to Response to Order to Show Cause, State v. Jones, 2222-CR01348-

01 (St. Louis City Cir. Ct. April 21, 2023). Gardner also included a series of

text messages between Assistant Circuit Attorney Alex Polta and Chief

Warrant Officer Christopher Hinckley dated April 10, 2023, which included

this exchange:

themselves out as representing the office’s employees. After at least two

employees indicated that they had not been contacted by counsel for the Circuit
Attorney’s Office, counsel for the Circuit Attorney’s Office reversed course and
stated they had always only represented the office.

55
“[S]erena” is a reference to First Assistant Serena Wilson-Griffin and

“[M]aurice” is a reference to Foxworth. It certainly appears from these internal

communications that Foxworth is on the executive team and is involved in

making “recommendations” on cases and receiving “updates on any trial

56
issues.” Thus, he may well be engaged in the unauthorized practice of law, as

he does not have a valid Missouri law license, and the State is unaware of any

active law license possessed by Foxworth.

On information and belief, Foxworth has attended many meetings over

the years involving legal decisions. If Gardner is knowingly allowing Foxworth

to engage in the unauthorized practice law, that is certainly relevant to the

State’s allegations that Gardner is willfully failing in her duties to properly

manage the office and supervise her assistant circuit attorneys and other

employees. Am. Pet. at ¶¶ 424–67. Thus, the State should be able to fully

discover all facts and documents concerning Foxworth’s relationship with the

Circuit Attorney’s Office.

Relevance of Requests 31 through 32

The State pled allegations asserting that Gardner “has willfully violated

or neglected, or knowingly or willfully failed or refused to perform, her duty to

exercise her judgment to determine whether evidence is sufficient to justify a

prosecution in felony and misdemeanor cases.” Am. Pet. at 40. In relation to

this claim, the State pled, inter alia, that Gardner failed to timely review

warrant applications and that, when she does review warrant applications, her

review is arbitrary. Am. Pet. at ¶ 198–263. The relationship between Gardner,

her office, and the St. Louis Metropolitan Police Department is therefore

directly relevant to the allegations pled in this case. Upon information and

57
belief, Ron Johnson, is the Circuit Attorney’s Office’s liaison to the St. Louis

Metropolitan Police Department.

And setting aside the State’s pleading about the review of warrant

applications, Gardner has put at issue her relationship with police in regard to

several other of the State’s claims. Since the State filed its suit, Gardner has

made several public statements apparently indicating that her defense to the

suit will include blaming the St. Louis Metropolitan Police Department for her

failures. Indeed on April 29, 2023, Gardner made a public statement, in which

she stated:

But see when you do the right thing and you stand in the face of
power and you say I’m gonna do the right thing even when the
pressure tells you to conform because all I had to do at that
meeting before I took office was say yes boss, I’ll do my job like a
good, good circuit attorney because if you think that office wasn’t
controlled by the police department, they came in there and told
you what to do, how to do it, who to charge, what to charge, and
what to make the case. And I said we’re not doing that today. . . .
When you can’t make the case you can’t make the case. When you,
when evidence falls apart because the police, of course you know
the police, bring all the evidence to us, we get it all on the right
time, that’s not true. When things fall apart and things turn out
the wrong we have to say we can’t go forward. And people don’t
like that. We can’t make things fit.

Mark Maxwell (@MarkMaxwellTV), Twitter (Apr. 29, 2023, 12:25 P.M.),

https://twitter.com/MarkMaxwellTV/status/1652363447495958528. Gardner

has therefore put the subject of her relationship with the St. Louis

Metropolitan Police Department at issue. Her assertion that the police are to

58
blame for her failures is relevant to, at the very least, five counts raised by the

State. Those include her failures to prosecute cases (Count I); her failure to

review reports of officer-involved shootings (Count III); her failure to comply

with discovery obligations (Count IV); her failure to confer with victims (Count

IX); and her failure to timely dispose of criminal cases (Count X). 11 The

information requested in paragraphs 31 and 32 is therefore widely relevant

and discoverable.

Relevance of Requests 33 through 35

As part of Count VI in its amended petition, the State pled facts related

to Gardner’s hiring of Kelly. Am. Pet. at 387–90. In its original response to the

Circuit Attorney’s Office’s motion to quash, the State asserted:

Relevance: In its amended petition, the State alleged that

Respondent’s failures to carry out her duties were attributable, at
least in part, to her failure to faithfully staff her office. See, e.g.,
Am. Pet. at ¶¶ 367–469. Several of those allegations related to
Respondent’s decision to hire Dana Kelly, the former owner of
Reign, a nightclub that the City closed because it was a threat to
public safety. In the amended petition the State alleged,
“According to an editorial in the St. Louis Post-Dispatch dated
December 29, 2022, the administrative assistant’s former
nightclub ‘became the scourge of downtown during and after the
pandemic,’ and it was ‘emblematic of the wave of lawlessness that
has gripped downtown St. Louis in the past few years.’ The
editorial further stated: ‘The most benign explanation for (the)
hiring is that it’s yet another example of Gardner’s management
incompetence, which has already caused serious criminal cases to
be dismissed for personal snafus and has spawned a devastating

11 Additionally, Gardner’s answer asserted that she has not pleaded all
of her defenses. Ans. at Affirmative Defense ¶ 17.

59
 exodus of legal talent from her office.’” Id. at ¶ 390. Respondent
denied several allegations related to Kelly and stated she lacked
knowledge and information to answer others; therefore, the State
should be allowed to discover the documents and communications
related to the hiring of Kelly, as they are relevant to the issue of
Gardner’s management of the office.

Resp. at 22–23. In what has now become a running theme, the Circuit

Attorney’s Office fails to even attempt an argument in response to these

assertions and instead acts as if they do not exist. Submission at 35. Kelly’s

hiring, immediately after the City of St. Louis had to shut down her nightclub

that “became the scourge of downtown[,]” Am. Pet. at ¶ 390, is relevant to the

issues in this case and is therefore discoverable.

Privileges

Additionally, the Circuit Attorney’s Office’s invocation of employee

privacy and the deliberative process privilege is unavailing. As to

communications requested in paragraph 30, in Missouri, public records include

“any report, survey, memorandum, or other document or study prepared for

the public governmental body by a consultant or other professional service paid

for in whole or in part by public funds, including records created or maintained

by private contractors under an agreement with a public governmental body

or on behalf of a public governmental body[.]” § 610.010(6). And so emails and

texts are subject to the Missouri Sunshine Law, unless they are otherwise

prohibited from disclosure. § 610.011. That is sufficient to defeat any

60
expectation of privacy. As to the contracts, agreements, and documents

reflecting the titles and duties of these employees or contractors, the Circuit

Attorney has made no argument explaining why these records are similarly

not subject to disclosure or protection under the Missouri Sunshine Law. And

even if the Circuit Attorney’s Office had actually articulated some specific,

lingering concerns about the State receiving contracts, agreements, and

documents that would be subject to Sunshine disclosure, that minimal privacy

interest could not justify quashing this request because those (non-existent)

concerns can be addressed by a protective order. Delmar Gardens, 239 S.W.3d

at 613.

And as has now been discussed several times, the Circuit Attorney’s

Office’s assertion of the deliberative process privilege is unavailing because

that privilege is not recognized in Missouri and because, even if the privilege

were recognized, the Circuit Attorney’s Office’s invocation of the privilege is

wholly insufficient. See Point II.D. These requests are for information that is

relevant to the issues in this case and they are not protected by any privilege.

This Court should order the Circuit Attorney’s Office to comply with the

request.

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 The Circuit Attorney’s Office has objected on the grounds of relevance,

employee privacy, and the deliberative process privilege. Submission at 27.

These objections are meritless. These emails are relevant; they relate directly

to the allegations in the amended petition, specifically paragraphs 223–29, and

to paragraphs 206–241 more broadly. The State pointed this out to the Circuit

Attorney’s Office on April 17, 2023, and the Circuit Attorney’s Office has made

no effort to contest the relevance arguments advanced by the State.

Additionally, the Circuit Attorney’s Office’s invocation of employee

privacy and the deliberative process privilege is unavailing. In Missouri, public

employee’s emails are public records. § 610.010(6). And so emails are subject

to the Missouri Sunshine Law, unless they are otherwise prohibited from

disclosure. § 610.011. That is sufficient to defeat any expectation of privacy.

And, because the Circuit Attorney’s Office only identified the deliberative

process privilege, and because that privilege is not recognized in Missouri as

explained in point II.D, the Circuit Attorney’s Office’s objections are meritless.

The Circuit Attorney’s Office initially indicated that the parties would

need to litigate this, but it has more recently indicated that it would consider

disclosure of a yet-undetermined class of documents. The State appreciates

62
this, but would ask the Court to set a date by which the Circuit Attorney’s

Office must provide its response to this paragraph so the State may promptly

address any issues with the ultimate position taken by the Circuit Attorney’s

Office. Submission 28.

The Circuit Attorney’s Office has agreed to provide the total number of

warrant applications. Submission at 28–29. The State did not agree that would

be sufficient. In response, the Circuit Attorney’s Office has objected on the

basis that the request is unduly burdensome, and that the warrant

applications are protected by the informer’s privilege and the law enforcement

privilege. Submission at 28–29. But, as explained in point II.B, the informer’s

privilege is not applicable. As described in point II.E, the law enforcement

privilege is not applicable. Further, the Circuit Attorney’s Office has not

followed this Court’s instruction to produce a privilege log, or to identify what

is the burden in producing the records, other than to say that the records are

not in PBK. However, the documents should have been submitted by email,

and the Circuit Attorney’s Office has agreed to produce the addresses for those

email accounts. Submission at 32. Because the records are easily producible

from the email accounts, there is not an undue burden on the Circuit Attorney’s

Office.

63
 The Circuit Attorney’s Office has agreed to provide the total number of

warrant applications. Submission at 29. The State did not agree that would be

sufficient. The Circuit Attorney’s Office stated no objections to providing the

underlying documents. Id. So, any objections they have are waived.

The Circuit Attorney’s Office has agreed to provide the total number of

warrant applications. Submission at 29. The State did not agree that would be

sufficient. The Circuit Attorney’s Office stated no objections to providing the

underlying documents. Id. So, any objections they have are waived.

The Circuit Attorney’s Office has agreed to provide the total number of

warrant applications. Submission at 30. The State did not agree that would be

sufficient. The Circuit Attorney’s Office stated no objections to providing the

underlying documents. Id. So, any objections they have are waived.

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 The Circuit Attorney’s Office has agreed to provide the total number of

warrant applications. Submission at 30. The State did not agree that would be

sufficient. The Circuit Attorney’s Office stated no objections to providing the

underlying documents. Id. So, any objections they have are waived.

The Circuit Attorney’s Office argues that this request is unduly

burdensome because it would have to search “emails, notes, and other

writings” to find warrant applications that were not reviewed. Submission at

31. Setting aside the oddity of the assertion that the Circuit Attorney’s Office

is not aware of how many methods there are by which the Circuit Attorney’s

Office could fail to review a tendered warrant application, this assertion of

burden is conclusory at best. Counsel for the Circuit Attorney’s Office

communicated to the State that the only way a warrant would not be put into

their system is if the warrant was fatally deficient. Assuming that is true

(which is merely an assumption), that would surely limit the burden of any

additional search. Unless and until the Circuit Attorney can provide something

more than a conclusory and amorphous assertion of undue burden, the Court

should compel the production of these documents.

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 Finally, the Circuit Attorney’s Office’s blanket invocation of the

informer’s privilege and the law enforcement privilege are ineffective. As

described in point II.B, the informer’s privilege is not applicable. As described

in point II.E, the law enforcement privilege is not applicable. Further, the

Circuit Attorney’s Office has not followed this Court’s instruction to produce a

privilege log, or to identify what is the burden in producing the records.

The Circuit Attorney’s Office expresses that they have reached an

agreement with the State about this request. It states, “The CAO agrees to

provide the AG with the number for the outstanding ‘at large’ warrant

applications that remain under review. Based on the meet and confer,

undersigned counsel understands that producing this number satisfies the AG

request here.” Submission at 31. The State does not disagree with this

statement, with the exception that the State similarly requested that the State

be provided with a way to authenticate the provided number. The State agrees

to continue to work through that authentication issue with counsel for the

Circuit Attorney’s Office.

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 The Circuit Attorney’s Office has agreed to produce material in relation

to this request. The State reserves the right to seek relief after reviewing the

production.

The Circuit Attorney’s Office has agreed to provide responsive

documents in all respects except for subpart b, which the Circuit Attorney’s

Office says is not a status category it uses. Submission at 33. If the Circuit

Attorney’s Office did not track that status category as of February 23, 2023,

then the State will consider this request complied with after the Circuit

Attorney’s Office produces documents for subparts a, c, d, e, and f.

67
 The Circuit Attorney’s Office argues these requests are irrelevant to any

“well-pled allegation.” Submission at 34. In support of that argument, the

Circuit Attorney’s Office asserts, “The word ‘diversion’ is nowhere mentioned

in the Amended Petition and the CAO’s diversion programs are not a subject

of—or even alluded to in—the Amended Petition.” Id. The State understands

this argument to be related to the Circuit Attorney’s Office’s misunderstanding

about the relationship between fact-pleading and discovery. But setting that

aside, in her answer Gardner asserted that she had not pled all of her defenses.

Ans. at Affirmative Defense ¶ 17. And Gardner has made several public

statements appearing to indicate that she will use her diversionary programs

as a defense to the State’s claims that she has failed to prosecute cases.

Gardner should not be allowed to use those documents in her defense after

refusing to produce those same documents in response to a valid discovery

request. See St. John’s, 90 S.W.3d at 215–16 (stating that privilege may not be

used as a “shield” and “dagger” at the same time). These records are relevant

and discoverable and the Circuit Attorney’s Office should be ordered to timely

comply with the requests.

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 The Circuit Attorney’s Office has agreed to produce names and case

numbers, but objects to producing emails, or text messages. Submission at 35.

The Circuit Attorney’s Office objects on the basis that producing the emails

and text messages would be oppressive and burdensome, that it is not possible

“on this timeline,” and that they are protected under the informer’s privilege,

the law enforcement privilege, and the deliberative process privilege.

These objections are meritless. A search for text messages and emails

related to the reasons for the dismissal of cases that were both dismissed and

refiled in just more than two years is not oppressive or burdensome. The

Circuit Attorney’s Office’s objection that production is not possible “on this

timeline” is self-serving because this request is a subset of request number 31

which was filed on March 1, 2023. The Circuit Attorney’s Office has made no

effort to search its records for nearly two months. Having delayed, it cannot

now claim that there is not enough time to produce the records it refused to

search for.

The Circuit Attorney’s Office’s invocation of privilege is likewise

meritless. As explained in point II.B, the informer’s privilege protects only the

identity of informers, and the Circuit Attorney’s Office has not plausibly

69
explained how its internal communications about its decision to dismiss and

refile charges would reveal the identity of an informer. As explained in point

II.E, the so-called law enforcement privilege is not recognized in Missouri.

Likewise, as explained in point II.D, the deliberative process privilege is also

not recognized in Missouri. As to all privileges, the Circuit Attorneys’ Office

has not even attempted to create a privilege log, as the Court instructed at the

April 18, 2023 hearing. Hrg. Tr. at 57–58.

The Circuit Attorney’s Office asserts that this request is “hopelessly

vague as ‘sanctions’ can be interpreted in many ways and come in many

different forms.” Submission at 35. As an entity engaged in the practice of law,

the Circuit Attorney’s Office should know the definition of the word sanction.

But even setting that aside, the State offered to limit these requests to

sanctions as they specifically relate to its pleading, e.g., sanctions for discovery

violations and speedy trial violations. In response, the Circuit Attorney’s Office

advanced a similar argument to the one it makes today: “It is not possible for

the CAO to search for materials based on this description.” Id. Because the

Circuit Attorney’s Office uses Karpel to electronically organize its files, the

State informed the Circuit Attorney’s Office that, if the office has been

updating its files, dismissal sanctions for speedy trial or discovery violations

70
would be searchable by an event code. The Circuit Attorney’s Office indicated

they did not think this was possible before engaging in ad hominem attacks

against a member of the State’s legal team. From these discussions, it is

unclear whether the Circuit Attorney’s Office has a way to track sanction

orders entered against it. It now states it does not. That answer is troubling.

This Court should order the Circuit Attorney’s Office to identify its manner of

tracking sanction orders entered against its attorneys and it should then order

the Circuit Attorney’s Office to comply with this request.

The Circuit Attorney’s Office opposes any production in response to this

request because, according to the Circuit Attorney’s Office, the request is

irrelevant, the request is vague, and searching for the records would be

inefficient and expensive. Submission at 35. These objections are meritless.

The State’s amended petition includes specific claims that Gardner and

her assistants have had numerous cases dismissed because of Gardner’s failure

to prosecute. Am. Pet. at ¶¶ 49–59, 88–92, 115–22, 140–41, 142–43, 144–45,

150–52, 178–93. These cases are only a small portion of the dismissals for a

failure to prosecute entered against Gardner, and this pattern and practice

makes the records relevant. Although the State pointed this out to the Circuit

71
Attorney’s Office on April 17, 2023, the Circuit Attorney’s Office has not

disputed the relevance of these materials to those paragraphs.

It should not be difficult to search the Circuit Attorney’s Office’s files for

dismissals for “failure to prosecute” despite the Circuit Attorney’s Office’s

protestations that “failure to prosecute” might mean different things.

Submission at 35. With respect to the Circuit Attorney’s Office’s complaint that

such a search would be expensive, the Circuit Attorney’s Office has provided

no estimation of the cost, despite the Court’s instruction to do so.

And the argument that there is no “reasonably efficient” way to search

for these dismissals is absurd. The Circuit Attorney’s Office uses Karpel, an

electronic file organization service that allows for the tracking of the office’s

cases. That system allows the Circuit Attorney’s Office to easily search the

disposition of its cases by the use of searches and event codes. It strains

credulity for the Circuit Attorney’s Office to argue that it does not have control

over its own records. The Circuit Attorney can search its records, and it should

be ordered to timely produce these records.

The Circuit Attorney’s Office opposes any production in response to this

request because, according to the Circuit Attorney’s Office, the request is

irrelevant and because searching for the records would be inefficient and

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expensive. Submission at 36. These objections are meritless. Generally, the

Circuit Attorney’s Office should be appearing for court in a timely manner so

there should not be many responsive records. Moreover, the request is directly

relevant to paragraphs 60–92 and 178–83 of the amended petition. Am. Pet. at

¶¶ 60–92, 178–83. Although the State pointed this out to the Circuit Attorney’s

Office on April 17, 2023, the Circuit Attorney’s Office has not disputed the

relevance of these materials to those paragraphs.

The Circuit Attorney’s Office opposes any production in response to this

request because, according to the Circuit Attorney’s Office, the request is

irrelevant and because the responsive materials are otherwise publicly

available. Submission at 36. These objections are without merit.

Such documents are relevant to the State’s allegations in paragraphs

147–49, 296–306, 398, and 405–06 (failure to provide defendants with a speedy

trial) as well as the allegations in paragraphs 607–28 (victim’s right to a speedy

trial). Although the State pointed this out to the Circuit Attorney’s Office on

April 17, 2023, the Circuit Attorney’s Office has not disputed the relevance of

these materials to those paragraphs.

Additionally, the Circuit Attorney’s Office’s allegation that the

information is publicly available is flatly wrong. Once a case is dismissed, it is

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a closed record and it is not available. § 610.105. The Circuit Attorney’s Office

can easily search its records through the use of Karpel.

The Circuit Attorney’s Office opposes any production of documents in

response to this request on the grounds of relevance, that the request is vague,

that the Circuit Attorney does not keep this information in searchable format,

and by asserting a blanket claim of the informer’s privilege and the law

enforcement privilege. Submission at 37. These objections are meritless.

Complaints from victims are relevant to the State’s claims that Gardner

has willfully violated or neglected, or knowingly or willfully failed or refused

to perform, her duty to protect and vindicate rights that are guaranteed to

victims by the Missouri Constitution and laws enacted by the General

Assembly.” Am. Pet. at ¶ 523. They are also relevant to the State’s claims that

Gardner has “willfully violated or neglected, or knowingly or willfully failed or

refused to perform, her duty of ensuring the victims’ right to a speedy

disposition of their cases.” Id. at ¶ 627. The State’s factual allegations across

these two claims include assertions that Gardner and her office have, among

other things, failed to communicate with victims and have violated the

constitutional rights of victims in St. Louis City. Id. at ¶¶ 522–628.

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 Finally, the Circuit Attorney’s Office’s blanket invocation of the

informer’s privilege and the law enforcement privilege are ineffective. As

described in point II.B, the informer’s privilege is not applicable. As described

in point II.E, the law enforcement privilege is not applicable. Further, the

Circuit Attorney’s Office has not followed this Court’s instruction to produce a

privilege log, or to identify what is the burden in producing the records.

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 Conclusion

For the foregoing reasons, the Court should deny the motion to quash.

Respectfully submitted,

ANDREW BAILEY
Attorney General

/s/ William M. Corrigan, Jr.

WILLIAM M. CORRIGAN, JR.
Deputy Attorney General
Missouri Bar #33169

/s/ Shaun J Mackelprang /s/ Andrew J. Crane

SHAUN J MACKELPRANG ANDREW J. CRANE
Deputy Attorney General, Criminal Assistant Attorney General
Missouri Bar #49627 Missouri Bar #68017

/s/ Gregory M. Goodwin /s/ Andrew J. Clarke

GREGORY M. GOODWIN ANDREW J. CLARKE
Chief Counsel, Public Safety Assistant Attorney General
Missouri Bar #65929 Missouri Bar #71264

P.O. Box 899

Jefferson City, MO 65102
(573) 751-7017
(573) 751-2096 Fax
william.corrigan@ago.mo.gov
shaun.mackelprang@ago.mo.gov
andrew.crane@ago.mo.gov
gregory.goodwin@ago.mo.gov
andrew.clarke@ago.mo.gov

Attorneys for State

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 Certificate of Service

The foregoing was electronically filed using the Case.net system on May
1, 2023. All counsel of record shall receive service thereby.

/s/ Gregory M. Goodwin

Chief Counsel, Public Safety Section

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