Equal Employment Opportunity Commission v. Genesh, Inc.

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
EQUAL EMPLOYMENT OPPORTUNITY
COMMISSION, et al.,
Plaintiffs,
v.
GENESH, INC.,
Defendant.
Case No. 24-2445-DDC-ADM
MEMORANDUM AND ORDER
In this action, the Equal Employment Opportunity Commission (“EEOC”) alleges that
Genesh, Inc. (“Genesh”), the owner and operator of more than 50 Burger King restaurant
franchises, violated Title VII of the Civil Rights Act of 1964 and Title I of the Civil Rights Act of
1991 by, among other things, subjecting a class of female employees to sexual harassment. (ECF
1.) The matter is before the court on intervenor-plaintiff LZ’s motion to compel the production of
documents responsive to subpoenas issued to non-party Axis Point Coaching and Consulting and
its employee Jana Stuart (together, “Axis Point”), over which Genesh has asserted attorney-client
privilege and/or work-product protection. (ECF 345.) The court has examined the withheld
documents in camera. For the reasons explained below, LZ’s motion to compel is granted in part
and denied in part.
I. 	BACKGROUND
The EEOC brought this public-enforcement action against Genesh based on alleged sexual
harassment of employees at particular Burger King restaurants. (ECF 1.) To date, three former
employees have intervened as plaintiffs in the action, including LZ. LZ alleges that when she
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worked for Genesh in 2022, her supervisor sexually molested and statutorily raped her multiple
times. (ECF 353, at 5.)
In discovery, LZ issued document subpoenas to Axis Point and Stuart. Axis Point is
Genesh’s outside consulting agency hired to advise on and conduct investigations of employee-
harassment complaints at Genesh-owned restaurants. (ECF 364-3, at 1-2; ECF 357-1, at 2.)
Pursuant to the Genesh-Axis Point service agreement, which was signed in 2020 and in effect
during the time period relevant to this lawsuit, Axis Point was “a representative of Genesh, Inc.”
required to “regularly communicate with . . . [and] provide completed documentation of factual
findings for each investigation to Genesh Inc.[’s] designated corporate counsel.” (ECF 345-1, at
37.) Since 2020, Axis Point has been Genesh’s sole investigator for all employee-harassment
complaints. (ECF 364-3, at 5-6.) When Genesh’s human resources department receives an
employee-harassment complaint, Genesh directs Axis Point to investigate the complaint. (Id. at
11.)
On August 25, 2023, Genesh received notice from the EEOC that LZ had filed a charge of
employment discrimination involving alleged sexual harassment by her supervisor. Genesh asked
Axis Point to investigate the matter, and specifically authorized Axis Point to act as Genesh’s
representative in assisting Genesh’s counsel to defend against the claims and prepare a position
statement for submission to the EEOC. (ECF 357-1, at 2-3; ECF 345-1, at 37.)
The subpoenas LZ issued to Axis Point and Stuart commanded production of, among other
things, email correspondence between Axis Point and Genesh’s counsel discussing multiple
investigations. When Genesh learned that LZ had issued the subpoenas, Genesh directed Axis
Point to redact certain responsive documents on the basis of attorney-client privilege and/or the
work-product doctrine. LZ disputes that the documents are subject to such protection. At the
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parties’ request, the court convened a conference on December 11, 2025, to discuss the subpoena-
related discovery. (ECF 337.) After hearing from the parties, the court granted LZ leave to file
the present motion to compel.
At the court’s direction, Genesh submitted unredacted copies of the email communications
to the court for in camera review. The communications that are the subject of LZ’s motion to
compel fall into six categories: (1) a September 2023 email exchange between Genesh’s counsel
and Stuart regarding the investigation of LZ’s harassment charge (privilege log entry 28); (2) two
September 2023 email exchanges between Genesh’s counsel and Genesh’s executive leadership
(with Stuart copied) pertaining to legal advice about Genesh’s action in response to LZ’s charge
and the subsequent investigation (privilege log entries 23-27, 29); (3) January 2024 email
exchanges between Genesh’s counsel, Genesh employees, and Stuart seeking and providing
information in the investigation of intervenor-plaintiff Tauna Frederick’s complaint (privilege log
entries 17-22); (4) August and October 2024 email exchanges between Genesh’s counsel and
Stuart regarding procedures to follow in performing investigations and discussing Stuart’s
practices in past investigations (privilege log entries 6-16); (5) an October 2024 email from
Genesh’s counsel to Genesh’s executive leadership (with Stuart copied) transmitting a legal
memorandum (privilege log entry 5); and (6) April 2025 emails from Genesh’s counsel to Stuart
listing documents for Stuart to review in preparation for her deposition (privilege log entries 2-4).
II. 	LEGAL STANDARDS
“Parties may obtain discovery regarding any nonprivileged matter that is relevant to any
party’s claim or defense and proportional to the needs of the case.” FED. R. CIV. P. 26(b)(1)
(emphasis added). Here, Genesh asserts that the email communications listed above are
privileged—pursuant to the attorney-client privilege and/or the work product doctrine—and thus
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not discoverable. LZ argues that the communications are not privileged, but even if they are,
Genesh waived the privilege.
Attorney-Client Privilege
Under 	federal 	common 	law 	applicable 	here, 	the 	attorney-client 	privilege 	protects
“confidential communications by a client to an attorney made in order to obtain legal assistance
from the attorney in his capacity as a legal advisor.” 	In re Grand Jury Proc., 616 F.3d 1172, 1182
(10th Cir. 2010) (internal quotations omitted). 	The privilege also protects advice given by the
attorney in the course of representing the client. 	See New Jersey v. Sprint Corp., 258 F.R.D. 421,
425 (D. Kan. 2009) (citing 	Upjohn Co. v. United States, 449 U.S. 383, 390 (1981)). 	“A party
claiming the attorney-client privilege must prove its applicability, which is narrowly construed.”
United States v. Merida, 828 F.3d 1203, 1209 (10th Cir. 2016); 	see also In re Grand Jury Proc.,
616 F.3d at 1183 (party asserting attorney-client privilege bears the burden to establish it applies).
The burden of showing the privilege has not been waived also falls on the party claiming the
privilege. 	In re Qwest Commc’ns, Int’l, Inc., 450 F.3d 1179, 1185 (10th Cir. 2006).
Work-Product Doctrine
The work-product privilege is governed by a uniform federal standard embodied in Federal
Rule of Civil Procedure 26(b)(3). Frontier Ref., Inc. v. Gorman-Rupp Co., 136 F.3d 695, 702 n.10
(10th Cir. 1998). That rule provides that a party ordinarily “may not discover documents and
tangible things that are prepared in anticipation of litigation or for trial by or for another party or
its representative (including the other party’s attorney, consultant, surety, indemnitor, insurer, or
agent).” FED. R. CIV. P. 26(b)(3). “The Supreme Court has stated that, ‘[a]t its core, the work-
product doctrine shelters the mental processes of the attorney, providing a privileged area within
which he can analyze and prepare his client’s case.’” Republic of Ecuador v. For Issuance of a
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Subpoena Under 28 U.S.C. Sec. 1782(a), 75 F.3d 1179, 1185 (10th Cir. 2013) (quoting United
States v. Nobles, 422 U.S. 225, 238 (1975)); see also Resolution Trust Corp. v. Dabney, 73 F.3d
262, 266 (10th Cir. 1995) (“[T]he work product doctrine is intended only to guard against
divulging the attorney’s strategies and legal impressions[;] it does not protect facts concerning the
creation of work product or facts contained within work product.”). Like the attorney-client
privilege, the party asserting work-product protection bears the burden to demonstrate that it
applies. In re Grand Jury Proceedings, 616 F.3d at 1185. But unlike the attorney-client privilege,
the party claiming waiver of work-product protection has the burden to establish waiver. Johnson
v. Gmeinder, 191 F.R.D. 638, 642-43 (D. Kan. 2000).
III. ANALYSIS
The court has conducted an in camera review and applied the above-mentioned legal
principles to the subpoenaed email communications over which Genesh asserts privilege. As
explained further below, the court finds that the majority of the documents are, as an initial matter,
privileged from disclosure. The exception are emails sent from Genesh’s counsel to Stuart
directing her to review attached documents in preparation for her deposition (privilege log entries
2-4).1 Of the otherwise-privileged documents, the court finds that Genesh waived privilege as to
emails relevant to Genesh’s investigations of LZ’s sexual-harassment charges (privilege log entries
6-16 and 23-29). The court addresses LZ’s specific arguments below.
1 Additionally, the court takes no position on whether an October 2024 email from
Genesh’s counsel to Genesh’s executive leadership transmitting a legal memorandum (privilege
log entry 5) ultimately is privileged, as LZ’s motion can only be read to challenge privilege based
on Stuart being copied on the email. The court rejects that specific challenge below.
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A. 	Whether Attorney-Client Privilege Can Apply to Emails Involving Stuart
First, LZ argues emails to or from Genesh’s counsel in which Stuart is the sender or a
recipient (direct or copied) are not privileged because Stuart is an outside third party. LZ reasons
that Stuart was Genesh’s human-resources consultant—and not “counsel’s agent”—such that
communications involving Stuart fall outside the protective “confidential communications
between a client and attorney” umbrella. While LZ’s factual contentions are accurate (no one
disputes that Genesh engaged Stuart as an outside consultant to investigate employee-harassment
complaints), her conclusion about the legal effect of this relationship is incorrect.
The fallacy in LZ’s argument stems from not recognizing that companies like Genesh often
act through authorized representatives. A company’s non-employee consultants can serve as the
“client” facilitating legal advice on the company’s behalf. See, e.g., TP ST Acquisition, LLC v.
Lindsey, No. 21-2020-JAR, 2022 WL 252001, at *10 (D. Kan. Jan. 26, 2022) (finding
communications between an attorney and a consultant engaged to help client facilitate a business
transaction were privileged); Pipeline Prods., Inc. v. Madison Cos., No. 15-4890-KHV-ADM,
2019 WL 1900341, at *3 (D. Kan. April 29, 2019) (finding communications between an
independent contractor and attorneys covered by the attorney-client privilege); In re Syngenta AG
MIR 162 Corn Litig., No. 14-md-2591-JWL, 2017 WL 2555834, at *6 (D. Kan. June 13, 2017)
(holding privilege not waived when three science consultants were copied on an email between
client’s employees and outside counsel); High Point SARL v. Sprint Nextel Corp., No. 09-2269-
CM, 2012 WL 234024, at *13 (D. Kan. Jan. 25, 2012) (“The presence of a third-party, such as a
consultant, does not destroy the attorney-client privilege where that party is the client’s agent or
possesses a commonality of interest with the client.” (cleaned up)). “Thus, when an authorized
. . . consultant acts as a company’s representative in communications necessary to provide the
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company legal advice, the consultant steps into the shoes of the client.” Black v. Union Pac. R.R.
Co., No. 23-1218-EFM-ADM, 2025 WL 2770681, at *7 (D. Kan. Sept. 29, 2025). Here, LZ
herself alleges that Genesh engaged Axis Point to act as Genesh’s representative in investigating
sexual-harassment complaints. Moreover, the Axis Point-Genesh service agreement specifically
directs Axis Point to communicate with Genesh’s counsel about harassment investigations. Thus,
Axis Point is Genesh—the client, not a third party—when communicating with counsel about the
sexual-harassment allegations at issue in this lawsuit. The attorney-client privilege applies to those
confidential communications. For the same reasons, copying Stuart on emails between Genesh
employees and counsel did not waive the attorney-client privilege. See id. (“In other words, there
is no third party in the picture to affect waiver; the communications are simply between a client
(acting through a consultant) and its attorney.”).
B. 	Whether Counsel’s Selection of Documents for Stuart to Review in Preparing
for Her Deposition is Protected Work Product
LZ’s next argument seeks to compel emails from Genesh’s counsel to Stuart in April 2025
listing approximately 10 documents for Stuart to review in preparation for her deposition (privilege
log entries 2-4). Genesh asserts work-product protection over the information in the emails. The
Tenth Circuit does not appear to have addressed the issue of whether an attorney’s selection of
documents to show a witness in preparation for a deposition constitutes work product, and the
court’s analysis of non-binding caselaw on this question indicates that courts generally take a more
nuanced, rather than categorical, approach to this issue. Compare Sporck v. Peil, 759 F.2d 312,
316 (3d Cir. 1985) (finding privileged attorney selection and compilation of “numerous
documents” for witness to review in preparation for deposition) and In re Allen, 106 F.3d 582, 608
(4th Cir. 1997) (finding selection of employment records for review was work product), with In re
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San Juan Dupont Plaza Hotel Fire Litig., 859 F.2d 1007, 1018 (1st Cir. 1988) (upholding district-
court protocol requiring pre-disclosure of exhibits an attorney plans to use during a deposition)
and N. Nat. Gas Co. v. Approximately 9117.53 acres in Pratt, Kingman, & Reno Ctys., Kan., 289
F.R.D. 644, 647 (D. Kan. 2013) (collecting District of Kansas cases holding an attorney’s selection
of documents to show a witness does not constitute work product).
LZ’s argument, in full, is this single sentence: “Some redacted communications appear to
be email correspondence only including the documents for her to review in preparing for her
deposition, which are not privileged.” (ECF 345, at 2.) LZ addresses none of the above (or any
other) legal authority, nor includes any legal analysis to support her conclusory statement. As
such, the court could deem this argument waived and not address it. See Arizona Pub. Serv. Co.
v. U.S. E.P.A., 562 F.3d 1116, 1130 (10th Cir. 2009) (“We need not address unsupported,
conclusory arguments.”); Pignanelli v. Pueblo Sch. Dist. No. 60, 540 F.3d 1213, 1217 (10th Cir.
2008) (deeming argument waived for failure to cite any supporting legal authority or record
evidence). But, having reviewed the subject emails in camera, the court easily finds that counsel’s
rudimentary list of a handful of basic case pleadings and documents does not reflect “the mental
processes of the attorney.” Republic of Ecuador, 75 F.3d at 1185. Under these circumstances, the
information in the emails is not subject to work-product protection. Genesh is ordered to produce
unredacted versions of the emails listing documents for review (privilege log entries 2-4).
C. 	Whether Genesh Waived Privilege over Subpoenaed Documents by not
Asserting Privilege Objections in Response to LZ’s Written Discovery
Third, LZ asserts that “Genesh waived any claim of privilege as to communication between
Stuart and its employees or representatives” by failing to “assert any privilege objections to . . .
discovery requests” served by plaintiffs on Genesh. (ECF 345, at 4.) LZ specifically cites
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Genesh’s responses to Request No. 16 of LZ’s second request for production of documents and
Request No. 3 of LZ’s third request for production of documents, both of which seek
communications between Axis Point and Genesh. (ECF 345-2, at 2-5.) But this argument
misconstrues the procedural posture of the current dispute.
The current motion to compel is not directed to documents that Genesh produced in
response to LZ’s requests for production of documents. Rather, it is directed to documents that
non-parties Axis Point and Stuart were prepared to produce in response to subpoenas that LZ
issued to them; and Genesh, as the holder of the attorney-client privilege and/or work-product
protection, interposed objections to producing the documents without redactions. The reasons for
this discrepancy (i.e., that Axis Point produced them whereas Genesh did not) are unclear. As best
as the court can glean, it appears to be the result of Genesh’s ESI search parameters, and perhaps
even whether they were run correctly. As LZ recently recounted, “Email communications between
Genesh and Stuart are the subject of the pending ESI issues” being addressed by the Special Master
appointed by the court. (ECF 361, at 2.) The Special Master’s December 23, 2025 report explains
that because of “search syntax issues . . . and Barracuda’s limitations,” Genesh’s ESI document
search “missed potentially responsive emails and attachments, causing the eventual review and
production by Defendant to be deficient.” (ECF 347, at 6-7.) Genesh is now correcting that
deficiency under the Special Master’s order and, should Genesh produce additional documents
that it believes warrant attorney-client privilege and/or work-product protection, it may assert such
privileges as to its own document production at that time. But LZ’s argument that Genesh waived
privilege by not asserting it over email communications that Axis Point and Stuart produced in
response to LZ’s subpoenas issued to them is without merit. The court finds no waiver on this
basis.
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D. 	Whether Genesh Waived Privilege by Not Filing a Motion to Quash the
Subpoenas
LZ’s next argument for waiver is that it was effected when “Genesh failed to file a motion
to quash or a motion for a protective order in response to the Subpoenas” within the 14-day
objection period set by Federal Rule of Civil Procedure 45(d)(2)(B), and instead waited for LZ to
file a motion to compel. (ECF 345, at 4-5.) The court rejects this argument, which inaccurately
characterizes the procedural background of this dispute.
The parties followed the court’s procedural rules for raising and resolving Genesh’s
objections to the subpoenas. On July 1, 2025, LZ’s counsel sent an email to the court requesting
a conference on, among other discovery matters, “subpoenas to Defendant’s investigator.” See D.
KAN. RULE 37.1(a). The court convened a discovery conference on July 10, during which the
parties discussed LZ’s proposed subpoenas to Axis Point. (See ECF 219.) Genesh stated its
objections to the subpoenas, asserting that they were overly broad and sought privileged
communications with attorneys. LZ appears to have issued the subpoenas that same day. (ECF
345-7.) On November 26, following a temporary stay of the case during the U.S. Government
shutdown (see ECF 315), the parties again contacted the court to request a discovery conference
on, among other things, “the Subpoena issue[d] to Axis Point/Stuart.” In LZ’s counsel’s email
submission of issues to the court the day before the set conference, LZ’s counsel stated one issue
to be addressed was “privileges that are being asserted by Defendant” as to the subpoenas, and
included Genesh’s privilege log as an attachment to her email. The court again addressed Genesh’s
objections to the subpoenas during a discovery conference on December 11. (ECF 337, 340).
After hearing from the parties, the court determined that the most efficient way to resolve the
dispute would be via plaintiffs filing “a motion to compel Genesh, Inc. to produce documents
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withheld from the Axis Point Consulting/Jana Stuart production on the basis of privilege.” (ECF
337, at 1.) LZ followed that directive in filing the present motion. Against this backdrop, the court
finds no procedural privilege waiver by Genesh.
E. 	Whether Genesh Waived Privilege by Asserting the Faragher/Ellerth
Affirmative Defense
LZ’s final—and only compelling—waiver argument is that Genesh waived any attorney-
client or work-product privilege as to communications about Axis Point’s investigation of LZ’s
complaint by asserting the so-called Faragher/Ellerth affirmative defense to her claims.
The Faragher/Ellerth defense provides that, in certain circumstances, an employer
defending against a claim of sexual harassment may avoid liability or damages by establishing,
among other things, that “the employer exercised reasonable care to prevent and correct promptly
any sexually harassing behavior.” Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 764-65 (1998).
An employer invoking the affirmative defense generally must show that it “launch[ed] a prompt
investigation to determine whether the [employee’s] complaint is justified.” Debord v. Mercy
Health Sys. of Kan., Inc., 737 F.3d 642, 654 (10th Cir. 2013) (quoting Helm v. Kan., 656 F.3d
1277, 1289 (10th Cir. 2011)). “[T]he reasonableness of the employer’s investigation – i.e. its
thoroughness – and the appropriateness of any disciplinary action that the employer took against
the alleged harasser in light of that investigation are . . . matters that the jury must consider in
evaluating a Faragher/Ellerth affirmative defense.” Culp v. Remington of Montrose, LLC, No.
18-cv-02213-MSK-GPG, 2020 WL 2316099, at *1 (D. Colo. May 11, 2020). Thus, “[w]hen a
party puts the reasonableness of an internal investigation at issue by asserting the Faragher/Ellerth
defense, that party waives any privilege that might otherwise apply to documents concerning the
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investigation.” Doe v. USD No. 237, No. 16-2801-JWL-TJJ, 2019 WL 1925107, at *5 (D. Kan.
April 30, 2019).
Here, Genesh’s answer to LZ’s amended complaint asserts the Faragher/Ellerth
affirmative defense, stating “With respect to the claims of sexual harassment, Defendant asserts
that it exercised reasonable care to prevent and promptly correct any harassing behavior and that
the Intervenor unreasonably failed to take advantage of the preventive or corrective opportunities
provided by Defendant or to otherwise avoid harm. Accordingly, any liability is precluded under
the Faragher-Ellerth defense.” (ECF 356, at 7; see also ECF 27, at 12 (Genesh’s answer to LZ’s
original complaint).) And Genesh’s Third Supplemental Rule 26(a)(1) Disclosures identify Stuart
as an individual that it may use to support its defenses based on information she has about
“allegations of harassment and retaliation and investigative process and procedures.” (ECF 345-
3, at 2.) In addition, Genesh answered an interrogatory asking it to identify the material facts that
support its Faragher/Ellerth affirmative defense by stating that, “Defendant exercised reasonable
care to prevent and promptly correct any harassing behavior by . . . [p]romptly undertaking
effective investigations to address harassment complaints.” (ECF 364-1, at 2-3.)
The record is therefore clear that Genesh intends to use Stuart’s investigation of LZ’s
sexual-harassment complaint to meet its burden of showing it “exercised reasonable care to prevent
and correct promptly any sexually harassing behavior,” and thereby avoid liability and damages
under Faragher/Ellerth. As a result, Genesh has put the reasonableness of its investigation and
the actions it took in response to the investigation (such as terminating LZ’s harasser) at issue. See
Doe v. USD 237, No. 16-2801-JWL, 2019 WL 2612941, at *5 (D. Kan. June 26, 2019) (ruling, “a
party puts its investigation at issue by asserting the Faragher defense based on that investigation”);
Norris v. City & Cnty. of Denver, No. 1:20-cv-01226-DDD-SKC, 2022 WL 17340403, at *5 (D.
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Colo. Nov. 30, 2022) (holding, “the ‘reasonableness of the employer’s investigation – i.e. its
thoroughness – and the appropriateness of any disciplinary action that the employer took against
the alleged harasser in light of that investigation are also matters that the jury must consider in
evaluating a Faragher/Ellerth affirmative defense” (internal quotation and citation omitted)).
Accordingly, Genesh has “waived the privilege with respect to the contents of that investigation.”
Doe, 2019 WL 2612941, at *6. Fairness requires giving LZ access to information allowing her to
evaluate this defense, i.e., to critique the reasonableness of Genesh’s investigation and the
appropriateness of its actions taken in response.
Genesh argues that the waiver does not go so far as to cover “the content of confidential
communications between Ms. Stuart and counsel at issue” or “counsel-directed investigative
communications.” (ECF 357, at 4.) The court finds no support for this argument. Confidential
communications with counsel about an investigation into a sexual-harassment complaint are
precisely the type of attorney-client communications that are waived by assertion of the
Faragher/Ellerth affirmative defense. See Norris, 2022 WL 17340403, at *5 (holding attorney’s
supervision of and collaboration with investigator was “precisely the type of involvement which
can lead to a waiver of the attorney-client privilege or work-product protection in the face of a
Faragher/Ellerth affirmative defense”); Culp, 2020 WL 2316099, at *2 (“The Plaintiffs’
entitlement to discovery of [counsel’s] advice . . . serves to ensure that any influence by her that
affected the thoroughness of the investigation is brought to light.”). For example, counsel’s advice
to an investigator on what steps should be taken or procedures should be followed in conducting
an investigation, as well as an investigator’s report to counsel on witnesses interviewed as part of
the investigation, is relevant to the jury’s consideration of whether the investigation was
sufficiently thorough. See id.
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Applying these principles, the court concludes that Genesh has waived attorney-client and
work-product privilege over email communications with counsel about the specific investigation
of LZ’s charges (privilege log entry 28), steps to take in all investigations—which would include
the LZ investigation (privilege log entries 6-16), and subsequent actions taken by Genesh in
response to the LZ investigation (privilege log entries 23-27, 29). Axis Point is ordered to produce
these documents without redactions.2
IT IS THEREFORE ORDERED that LZ’s Motion to Compel Production of Documents
(ECF 345) is granted in part and denied in part as set forth above.
IT IS FURTHER ORDERED that by February 20, 2026, Axis Point and Stuart must
produce to LZ the documents listed at entries 2-4, 6-16, and 23-29 without redactions.
Dated February 13, 2026, at Kansas City, Kansas.
s/ Angel D. Mitchell
Angel D. Mitchell
U.S. Magistrate Judge
2 LZ’s motion includes an additional, one-sentence waiver argument: “Further, any
privilege is waived for all communication forwarded to or with former employees post-
employment, including Matt Stagner.” (ECF 345, at 3.) The court does not have enough
information to decide this underdeveloped, conclusory argument. A person who appears to be
Matt Stagner was copied via email to matt@geneshinc.com on the January 2024 email exchanges
between Genesh counsel and Stuart seeking and providing information in the investigation of
intervenor-plaintiff Tauna Frederick’s complaint (privilege log entries 17-22). But if these are the
communications challenged by LZ’s argument, the information available suggests Stagner was a
Genesh employee at the time he received the emails to his Genesh email address, thus making the
argument inapplicable.
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