Johnson v. J. Walter Thompson Company, LLC et al

Filing 124

MEMORANDUM AND ORDER granting 97 Motion to Compel. For the reasons discussed above, the Corporate Defendants' motion to compel (Docket no. 97) and Mr. Martinez motion for leave to serve a subpoena on TBWA (Docket no. 100) are each granted. SO ORDERED. (Signed by Magistrate Judge James C. Francis on 7/18/2017) Copies Transmitted this Date By Chambers. (anc)

Johnson to produce documents concerning her efforts to secure
alternative employment.

Concurrently, Mr. Martinez moves for an

order permitting him to serve a non-party subpoena on a company
with which the plaintiff previously communicated about potential
employment.

Both motions are granted.

Background 1
Since 2009, Ms. Johnson has been the Chief Communications
Officer of JWT, an international advertising agency based in New
York.

Johnson, 224 F. Supp. 3d at 301.

joined JWT as its Global President.
(“SAC”), ¶ 35).

In 2014, Mr. Martinez

(Second Amended Complaint

When he became Chairman and CEO on January 1,

2015, the plaintiff began reporting directly to him.
F. Supp. 3d at 302.

Johnson, 224

According to Ms. Johnson, Mr. Martinez created

a hostile work environment by making sexually suggestive remarks
both directly to her and in her presence and by engaging in
unwanted physical touching.

Id. at 302-03.

After the plaintiff

raised concerns about this conduct to JWT’s Chief Talent Officer,
Mr. Martinez allegedly reduced her bonus, stopped inviting her to
JWT Executive Committee meetings, cancelled the annual meeting of
one

of

Ms.

Johnson’s

programs,

1

and

began

assigning

away

The factual background of this case is set forth in greater
detail in the opinion of the Honorable J. Paul Oetken, U.S.D.J.,
denying the defendants’ motions to dismiss, Johnson v. J. Walter
Thompson U.S.A., LLC, 224 F. Supp. 3d 296 (S.D.N.Y. 2016), and
will not be repeated here.
2

responsibilities that had been hers.

Id. at 303-04.

On February 22, 2016, Ms. Johnson’s attorneys sent a letter
to the defendants indicating that she believed that she was a
victim of discrimination and retaliation.
then

placed

on

investigation.

paid

leave

pending

Id. at 304-05.

Id. at 304.

completion

of

an

She was
internal

On March 10, 2016, Ms. Johnson

commenced this action. Thereafter, Mr. Martinez issued a statement
through

WPP

asserting

that

“there

is

absolutely

no

truth

to

[plaintiff’s] outlandish allegations.” Id. at 305 (alteration in
original).

WPP sent a memorandum to its senior executives and

clients and to the media stating that it had been investigating
the plaintiff’s allegations and had “found nothing.”

Id.

JWT

issued a press release stating that “Martinez has asserted that
[the plaintiff’s] allegations are false.”

Id.

In the meantime, Ms. Johnson had allegedly been contacted by
TBWA Worldwide (“TBWA”), another advertising agency, about working
there.

Ultimately, that position was filled by Anaka Kobzev, one

of the plaintiff’s subordinates, and Ms. Johnson discussed this
development with Mr. Martinez in a string of text messages on
February 12, 2016.

(Memorandum in Support of Defendants’ Motion

to Compel the Production of Information and Documents (“Corp. Def.
Memo.”) at 3 & n.2).
To brag a little.

In pertinent part, Ms. Johnson stated, “Hey.
They came after me first for this role and I

didn’t go because I am loyal to you and what you are doing.
3

I

felt like we had a good year together.
to stay. Lol.”

So I hope I wasn’t wrong

(Memorandum of Law in Support of Defendant’s

Proposed Subpoena to Non-Party TBWA (“Martinez Memo.”), Exh. A at
JWTJOHNSON000000210).
In the course of discovery, the Corporate Defendants have
sought information relating to Ms. Johnson’s efforts to find new
employment.

In particular, they have made the following requests:

Interrogatory No. 23: Identify all persons (including
companies or employers) with knowledge or information,
personal or otherwise, concerning Plaintiff’s efforts to
find work (including without limitation work to be
performed as an employee, consultant or independent
contractor) from June 25, 2014 to the present, including
without limitation any applications of employment or
contact with TBWA Worldwide.
Document Request No. 17: All documents concerning
Plaintiff’s efforts to find new employment or any
consulting, freelance or other paid work since January
1, 2014 to the present, including without limitation any
contact she had with TBWA Worldwide.
Document Request No. 18: All documents concerning
Plaintiff’s efforts to mitigate any damages she
allegedly suffered as a result of the conduct alleged in
the Complaint.
(Corp. Def. Memo. at 3 n.5).

After the plaintiff objected to this

discovery and the parties were unable to come to a resolution, the
Corporate Defendants filed their motion.
Similarly, counsel for Mr. Martinez proposed to serve a
subpoena on TBWA seeking:
1. All documents and tangible objects for the period
June 1, 2014 to present in your custody or control
pertaining to Erin Johnson (a/k/a Erin Oettinger or Erin
4

Johnson Oettinger) in connection with the position
“Global Head of Communications” at TBWA currently held
by Anaka Kobzev, including but not limited to job
applications, cover letters, resumes, portfolios, notes,
emails, letters, correspondence, calendar invites,
meeting schedules, interview notes, contracts, nondisclosure agreements, and written agreements.
2. All documents and tangible objects for the period
June 1, 2014 to present in your custody or control
pertaining to Erin Johnson (a/k/a Erin Oettinger or Erin
Johnson Oettinger) in connection with any position of
employment at TBWA, including but not limited to job
applications, cover letters, resumes, portfolios, notes,
emails, letters, correspondence, calendar invites,
meeting schedules, interview notes, contracts, nondisclosure agreements, and other written agreements.
(Martinez Memo. at 2).

When the plaintiff would not consent to

service of such a subpoena, Mr. Martinez filed his motion.
Discussion
A. Legal Standard
A two-step analytical framework governs a motion to compel
discovery.

First, the moving party must demonstrate that the

information sought is discoverable, including, among other things,
that it is relevant. See Mason Tenders District Council of Greater
New York v. Phase Construction Services, Inc., 318 F.R.D. 28, 36
(S.D.N.Y.

2016)

(noting

that

“the

burden

of

demonstrating

relevance is on the party seeking discovery”); Allison v. Closette Too, LLC, No. 14 Civ. 1618, 2015 WL 136102, at *8 (S.D.N.Y.
Jan. 9, 2015) (same); Mandell v. Maxon Co., No. 06 Civ. 460, 2007
WL 3022552, at *1 (S.D.N.Y. Oct. 16, 2007) (same). Second, “[o]nce
relevance has been shown, it is up to the responding party to
5

justify curtailing discovery.”

Allison, 2015 WL 136102, at *8

(quoting Fireman’s Fund Insurance Co. v. Great American Insurance
Co. of New York, 284 F.R.D. 132, 134 (S.D.N.Y. 2012)).
Information is discoverable if it meets the requirements of
Rule 26(b)(1) of the Federal Rules of Civil Procedure:
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, considering
the importance of the issues at stake in the action, the
amount in controversy, the parties’ relative access to
relevant information, the parties’ resources, the
importance of the discovery in resolving the issues, and
whether the burden or expense of the proposed discovery
outweighs its likely benefit.
“Evidence is relevant if: (a) it has any tendency to make a fact
more or less probable than it would be without the evidence; and
(b) the fact is of consequence in determining the action.”
R. Evid. 401.

Fed.

Thus, “[r]elevance is . . . ‘construed broadly to

encompass any matter that bears on, or that reasonably could lead
to other matter that could bear on’ any party’s claim or defense.”
Mortgage Resolution Servicing, LLC v. JPMorgan Chase Bank, N.A.,
No. 15 Civ. 293, 2016 WL 3906712, at *3 (S.D.N.Y. July 14, 2016)
(quoting Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 351
(1978)).
In order to justify withholding relevant information, the
party resisting discovery must show “good cause,” the standard for
issuance of a protective order under Rule 26(c).

See Gambale v.

Deutsche Bank AG, 377 F.3d 133, 142 (2d Cir. 2004) (holding that
6

party opposing discovery has burden of demonstrating good cause);
cf. State Farm Mutual Automobile Insurance Co. v. New Horizont,
Inc., 254 F.R.D. 227, 233 n.4 (E.D. Pa. 2008) (treating motion to
compel and motion for protective order as “mirror image[s]”);
Imperial Chemical Industries, PLC v. Barr Laboratories, Inc., 126
F.R.D. 467, 472 (S.D.N.Y. 1989) (same).

In order to meet this

burden, the party opposing discovery must show “that disclosure
will result in a clearly defined, specific and serious injury.
Broad allegations of harm, unsubstantiated by specific examples or
articulated
Moreover,

reasoning,

the

harm

do

must

not

be

satisfy

significant,

the
not

Rule
a

26(c)
mere

test.

trifle.”

Laugier v. City of New York, No. 13 Civ. 6171, 2014 WL 6655283, at
*1 (S.D.N.Y. Nov. 24, 2014) (quoting Schiller v. City of New York,
No. 04 Civ. 7922,

2007 WL 136149, at *5 (S.D.N.Y. Jan. 19, 2007));

see also Ghonda v. Time Warner Cable, Inc., No. 16 CV 2310, 2017
WL 395111, at *2 (E.D.N.Y. Jan. 27, 2017).

Ultimately, “the

appropriateness of protective relief from discovery depends upon
a balancing of the litigation needs of the discovering party and
any countervailing protectible interests of the party from whom
discovery is sought.”

Mitchell v. Fishbein, 227 F.R.D. 239, 245

(S.D.N.Y. 2005) (quoting Apex Oil Co. v. DiMauro, 110 F.R.D. 490,
496 (S.D.N.Y. 1985)).
B. Corporate Defendants’ Motion
The Corporate Defendants argue that information concerning
7

Ms.

Johnson’s

efforts

to

secure

alternative

employment

are

relevant to (1) whether she believed that she was experiencing
harassment or retaliation, (2) the extent to which she experienced
emotional distress, and (3) her claims of damage to her reputation.
(Corp. Def. Memo. at 1-2, 5-8).
A plaintiff can establish a claim of hostile work environment
by

showing

that

the

environment

of

the

workplace

was

“both

objectively and subjectively offensive, one that a reasonable
person would find hostile or abusive, and one that the victim did
in fact perceive to be so.”

Faragher v. City of Boca Raton, 524

U.S. 775, 787 (1998); accord Dash v. Board of Education of City
School District of New York, __ F. Supp. __, __, 2017 WL 838226,
at *6 (E.D.N.Y. 2017); Marques v. City of New York, No. 14 Civ.
8185, 2016 WL 4767577, at *8 (S.D.N.Y. Sept. 12, 2016).

To be

sure, “the subjective component of the test . . . does not require
that [the plaintiff] quit or want to quit the employment in
question.”

Davis v. United States Postal Service, 142 F.3d 1334,

1341 (10th Cir. 1998).

Thus, the information that the Corporate

Defendants seek would not be conclusive; but that does not mean
that it is not relevant.

Indeed, it could be quite persuasive.

For example, in Arnold v. Reliant Bank, 932 F. Supp. 2d 840 (M.D.
Tenn. 2013), the court found it “telling” that the plaintiff, who
was alleging workplace harassment, nevertheless rejected a more
lucrative offer from another employer.
8

Id. at 855.

The court

observed that this “suggests that, at least during the months
immediately

preceding

her

termination,

the

plaintiff

perceive her work environment to be hostile.”

Id.

did

not

Thus, the

requested information is plainly relevant to the subjective prong
of Ms. Johnson’s hostile environment claim.
For similar reasons, it is also relevant to her claim for
damages for emotional distress.

Efforts that the plaintiff made

to extricate herself from her position at JWT and find other work
would be some evidence that she was experiencing distress. Indeed,
if her search were unsuccessful, the resulting anxiety could itself
be compensable.

See Shannon v. Fireman’s Fund Insurance Co., 156

F. Supp. 2d 279, 296 (S.D.N.Y. 2001) (finding that depression
resulting

from

unsuccessful

job

search

following

termination

justified award for emotional distress). Conversely, a fact finder
could infer that the plaintiff felt little emotional distress if
she took no action to find alternative employment or if she
rejected offers of equivalent positions.
Insofar as the Corporate Defendants seek information about
the plaintiff’s employment search on the ground that it is relevant
to her claim for reputational injury, that argument is moot.

Ms.

Johnson’s only claim for reputational damages is based on publicity
generated

after

she

commenced

this

action.

(Plaintiff’s

Memorandum of Law in Opposition to Corporate Defendants’ Motion to
Compel

(“Pl.

Opp.

Corp.

Memo.”)
9

at

9;

Transcript

of

Status

Conference dated April 26, 2017, attached as Exh. 6 to Affidavit
of Anne C. Vladeck dated May 23, 2017, at 22-23).

And she has

agreed to produce job search information for the period after she
filed the original Complaint.

(Pl. Opp. Corp. Memo. at 9 n.7).

Nonetheless, the information that the Corporate Defendants seek is
relevant to the other two issues they have identified.
2. Burden
The plaintiff contends that the requested discovery would be
intrusive and burdensome because it would provide ammunition for
the

defendants

to

“target

other

“sabotage” Ms. Johnson’s career.

potential

employers”

and

(Pl. Opp. Corp. Memo. at 11).

This purported danger is too nebulous to justify denying discovery
of relevant information.

First, the plaintiff has not suggested

that she is currently contemplating seeking new employment.

See

Ghonda, 2017 WL 395111, at *3 (declining to quash subpoena where
plaintiff did not claim that she intended to apply for employment
at target entity in foreseeable future).

And, as noted above, she

has agreed to produce data about any job search she conducted after
she initiated this action.

Certainly, her disclosure of the

identity of employers that she contacted prior to filing the
lawsuit

could

litigation.

lead

to

those

employers

becoming

aware

of

the

But Ms. Johnson has repeatedly stressed how publicity

generated by the defendants has already alerted the industry to
the

lawsuit

and

injured

her

reputation,
10

so

any

additional

information disclosed through discovery would likely have little
impact

on

a

prospective

employer.

See

id.

(finding

that

“[p]laintiff’s contention that the mere service of the challenged
subpoena would cause her harm is conclusory and speculative”).
The cases relied upon by the plaintiff are each inapposite.
For example, in Gambale v. Deutsche Bank AG, No. 02 Civ. 4791,
2003 WL 115221 (S.D.N.Y. Jan. 10, 2003), the defendants served
broad subpoenas on five executive search firms that the plaintiff
had utilized.

Id. at *1.

The court quashed the subpoenas,

finding:
A search firm would probably find it an intrusive burden
to produce its notes of all communications with
plaintiff or with prospective employers on her behalf.
Also, 2003 is a difficult time to be looking for a[n]
executive position, and I cannot lightly dismiss
plaintiff’s worry about anything that might cause a
search firm with a good “lead” to offer it to another
client rather than to her.
Id.

Thus, in Gambale, the court was concerned, at least in part,

with the burden imposed on a non-party, an issue that has not yet
arisen here.

Furthermore, the defendants in that case speculated

that the job search information might reveal that the plaintiff
had misrepresented her qualifications.

Id. at *2.

The court

concluded, “For me, the dispositive factor here is the weakness of
the defendants’ claims as to relevance.”

Id.

By contrast, as

discussed above, the defendants here are seeking highly relevant
information.

11

Similarly, in U.S. Equal Employment Opportunity Commission v.
AutoZone, Inc., No. 14 CV 3385, 2016 WL 7231576 (N.D. Ill. Dec.
14, 2016), the court quashed subpoenas served on the plaintiffs’
current employers seeking the plaintiffs’ entire personnel files,
including
disciplinary
notes.

employment
records,

Id. at *6.

applications,
performance

attendance

evaluations,

and

histories,
interview

Again, in contrast to this case, the court

found little relevance in the requested information: “The Court is
not convinced of the relevance of these records to AutoZone’s
defenses, and what relevance they may have, if any, does not
outweigh the potential burdens on the third party employers and
the Claimants.”

Id.

Finally, in Thompson v. Trident Seafoods Corp., No. C11-120,
2012 WL 293865 (W.D. Wash. Jan. 31, 2012), the court rejected the
demand of the defendants for a broad array of information about
the

plaintiff’s

employment

after

corporate defendant (“Trident”).

she

left

the

employ

of

According to the Court,

[The defendants] argue that they should be permitted to
contact
plaintiff’s
post-Trident
employers
or
prospective employers to find out how plaintiff has
characterized her separation from Trident (i.e., whether
she told anyone that she resigned her position) and how
she has performed in her new position(s). While both of
these topics are of interest to defendants and may lead
to the discovery of admissible evidence, subjecting
plaintiff’s current and prospective employers to
discovery
and
inviting
an
in-depth
critique
of
plaintiff’s job performance certainly poses a risk of
annoyance, embarrassment, and oppression.

12

the

Id. at *1.

The information demanded in that case was thus far

more intrusive and far less relevant than the discovery sought by
the Corporate Defendants here.

Because Ms. Johnson’s limited

interest in preventing further disclosure of her dispute with JWT
is outweighed by the Corporate Defendants’ legitimate litigation
needs, the Corporate Defendants’ motion to compel is granted.
C. Individual Defendant’s Motion
1. The Plaintiff’s Standing
As
Martinez,

a

threshold
questions

matter,
Ms.

the

Johnson’s

individual
standing

to

defendant,
object

to

subpoena that he proposes to serve on TBWA, a non-party.

Mr.
the

(Reply

Memorandum in Further Support of Defendant’s Proposed Subpoena to
Non-Party TBWA at 2).

Because Mr. Martinez raised this argument

for the first time in his reply brief, I deem it waived.

See,

e.g., Sacchi v. Verizon Online LLC, No. 14 Civ. 423, 2015 WL
1729796, at *1 n.1 (S.D.N.Y. April 14, 2015) (“Generally, a court
‘[does] not consider issues raised in a reply brief for the first
time because if a [party] raises a new argument in a reply brief
[the opposing party] may not have an adequate opportunity to
respond to it.’” (alterations in original) (quoting Evergreen
National Indemnity Co. v. Capstone Building Corp., No. 3:07 cv
1189, 2008 WL 926520, at *2 (D. Conn. March 31, 2008))).

Even if

I were to consider this contention on the merits I would reject
it.

An employee has a privacy interest in her employment records
13

sufficient to give her standing to object to a subpoena for those
records served on a non-party employer.

See Roth v. County of

Nassau, No. 15 CV 6358, 2017 WL 75753, at *2 (E.D.N.Y. Jan. 6,
2017); Allison, 2015 WL 136102, at *7 (“[C]ourts have repeatedly
found that an individual possesses a privacy interest with respect
to information contained in her employment records and therefore
has standing to challenge subpoenas seeking such records.”); Lev
v. South Nassau Communities Hospital, No. 10 CV 5435, 2011 WL
3652282, at *1 (E.D.N.Y. Aug. 18, 2011) (“[T]he plaintiff has a
privacy interest with respect to information contained in her
employment

records,

and

thus,

can

challenge

the

subpoenas

[directed at a non-party].”); Warnke v. CVS Corp., 265 F.R.D. 64,
66 (E.D.N.Y. 2010) (“Plaintiff has a legitimate privacy interest
in information regarding his subsequent employment and therefore
has standing to bring the instant motion [to quash subpoena served
upon non-party employers].”).
2. Relevance
As with the Corporate Defendants’ request for information
about

Ms.

Martinez’s

Johnson’s
request

search
for

for

alternative

information

employment,

specifically

about

plaintiff’s interactions with TBWA seeks relevant data.

Mr.
the

To the

extent that Ms. Johnson received, but then declined, an offer for
a higher paying job at TBWA, this information would be pertinent
both to whether she subjectively believed that she was being
14

harassed at JWT and to her claim for emotional distress damages.
See Arnold, 932 F. Supp. 2d 854-55; Smith v. Specialty Pool
Contractors, No. 02:07-cv-1464, 2009 WL 799748, at *4 (W.D. Pa.
March 25, 2009) (“Plaintiff will apparently be the only witness on
his behalf who will be able to testify as to whether he suffered
mental anguish or mental distress and whether he was subjectively
offended by the work environment at Specialty Pool.

Accordingly,

the Court finds that Defendant will be entitled to inquire as to
the reasons why Plaintiff continued his employment with Specialty
Pool and did not seek alternative employment.”).
2. Burden
Any argument that the plaintiff has with respect to the risk
to her of taking discovery with respect to her employment contacts
generally is even more attenuated when it comes to TBWA.

Of

course, TBWA already knows of any communications she previously
had with that agency, and she has not contended that she intends
to seek employment there in the future.

See Annabelle K. Garrett,

LLC v. Axiom International Investors, LLC, No. 3:07 cv 1341, 2008
WL 1848880, at *4 (D. Conn. April 25, 2008) (denying motion to
quash subpoena of company that was not plaintiff’s current employer
and for which she never worked).

Ms. Johnson does argue that her

job prospects with other employers could be adversely affected
because “TBWA is a subsidiary of Omnicom Group [] and thereby
affiliated with numerous companies working within the advertising
15