Johnson v. J. Walter Thompson Company, LLC et al
ORDER granting 93 Motion for Protective Order. Please visit the Court's Website at www.nysd.uscourts.gov for Sealed Records Filing Instructions. Within one week of the date of this order, the Corporate Defendants shall (1) produce to the pl aintiff all documents provided to Proskauer by JWT and the interviewees in the course of the investigation to the extent such documents were not previously produced, and ( 2) submit for in camera review (a) all documents reflecting communications b etween Proskauer and either JWT or Davis & Gilbert concerning the subject matter of the investigation, and (b) the Rossein Documents. In all other respects, the Corporate Defendants' motion for a protective order (Docket no. 93) is granted. (Signed by Magistrate Judge James C. Francis on 8/9/2017) Copies Sent By Chambers. (rj)
The Corporate Defendants now move pursuant to Rule 26(c) of
shielding from discovery materials created in connection with (1)
an internal investigation of the plaintiff’s allegations conducted
by attorney Bettina B. Plevan and the law firm of Proskauer Rose
LLP (“Proskauer”), and (2) equal employment training provided to
defendant Martinez by Merrick T. Rossein, a law professor and
employment law consultant.
The motion is granted in part and
denied in part.
JWT is an international advertising agency based in New York,
and Ms. Johnson has been its Chief Communications Officer since
Johnson, 224 F. Supp. 3d at 301.
Mr. Martinez joined JWT
as its Global President in 2014 (Second Amended Complaint (“SAC”),
¶ 35), and when he became Chairman and CEO in 2015, the plaintiff
began reporting to him directly.
Johnson, 224 F. Supp. 3d at 302.
Ms. Johnson alleges that Mr. Martinez created a hostile work
environment by making sexually suggestive remarks and engaging in
unwanted physical touching.
Id. at 302-03.
For example, on one
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 in
a prior determination resolving another discovery dispute, Johnson
v. J. Walter Thompson U.S.A., LLC, No. 16 Civ. 1805, 2017 WL
3055098 (S.D.N.Y. July 18, 2017).
occasion, according to Ms. Johnson, Mr. Martinez told her to come
to him so that he could “rape her” in the bathroom.
Id. at 302.
Later that same day, he entered a meeting that the plaintiff was
having with other female employees and asked her which one he could
Ms. Johnson further alleges that Mr. Martinez would
frequently rub her shoulders and stroke her face.
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.
Id. at 304-05.
Id. at 304.
On March 10, 2016, Ms. Johnson
commenced this action. Thereafter, Mr. Martinez issued a statement
[plaintiff’s] outlandish allegations.”
Id. at 305 (alteration in
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. On March
investigation of Ms. Johnson’s allegations.
(Letter of Bettina B.
Plevan dated March 14, 2016, attached as Exh. 4 to Declaration of
Anne C. Vladeck dated May 23, 2017 (“Vladeck Decl.”)).
following day, an article appeared in the Wall Street Journal
Martinez’s denial of the plaintiff’s allegations.
Outside Law Firm to Investigate Allegations Against JWT CEO,”
attached as Exh. 3 to Vladeck Decl.).
According to the Corporate
Defendants, “[b]y mutual agreement . . . Martinez resigned and
transitioned out of the JWT Chairman and CEO role, effective March
He remains employed by WPP and currently works in
(Def. Memo. at 2).
Ultimately, Proskauer issued a
report summarizing the results of its investigation on April 18,
attached as Exh. 5 to Vladeck Decl.).
On March 17, 2016, counsel for the Corporate Defendants
contacted Professor Rossein and requested that he provide Mr.
Martinez with “equal opportunity training and provide legal advice
to Defendants about the Lawsuit, Defendants’ training practices,
and the retention of Martinez in an executive position elsewhere
(Declaration of Howard J. Rubin dated May 9, 2017
(“Rubin Decl.”), ¶ 4).
When the training was complete, Professor
Rossein submitted a report on May 10, 2016 (the “Rossein Report”),
discussing the content of the training and commenting on Mr.
(Rubin Decl., ¶ 4; Report of Merrick T. Rossein Concerning Equal
JWT is an indirect wholly-owned subsidiary of WPP.
(Memorandum of Law in Support of Defendants’ Motion for Protective
Order (“Def. Memo.”) at 2 n.1).
Employment Training Session for Gustavo Martinez, attached as Exh.
9 to Vladeck Decl.).
The Corporate Defendants represent that neither the Proskauer
Report nor the Rossein Report has been disclosed to anyone other
confidentiality order, the plaintiff and her counsel.
Decl., ¶ 5).
During the course of discovery in this action, the plaintiff
served deposition and document subpoenas on both Ms. Plevan and
attached as Exh. A to Rubin Decl.; Subpoena addressed to Merrick
Proskauer and Professor Rossein produced logs indicating that they
were withholding certain documents responsive to the subpoenas on
grounds of the attorney-client privilege and the work product
Proskauer has declined to disclose (1) electronic and
investigation interviews; (2) earlier drafts of the Proskauer
Report containing attorney comments; (3) invoices submitted to the
Corporate Defendants; (4) documents provided to Proskauer by JWT
and the interviewees in the course of the investigation; and (5)
emails among Proskauer attorneys and between Proskauer attorneys
and JWT witnesses or outside counsel regarding the investigation
and the lawsuit (collectively, the “Proskauer Documents”).
Party Proskauer Rose Privilege Log, attached as Exh. D to Rubin
Professor Rossein is withholding emails between himself
(Categorical Privilege Log in Response to Third Party Subpoena
Issued to Merrick Rossein, attached as Exh. C to Rubin Decl.).
These documents are the subject of the Corporate Defendants’ motion
for a protective order.
Attorney Client Privilege
The attorney-client privilege protects from disclosure “(1)
a communication between client and counsel that (2) was intended
to be and was in fact kept confidential, and (3) was made for the
purpose of obtaining or providing legal advice.”
In re County of
Erie, 473 F.3d 413, 419 (2d Cir. 2007); accord American Civil
Liberties Union v. United States Department of Justice, 210 F.
Supp. 3d 467, 477 (S.D.N.Y. 2016); United States v. Ghavami, 882
F. Supp. 2d 532, 536 (S.D.N.Y. 2012). Obtaining or providing legal
advice need not be the sole purpose of the communication; rather,
communication is to render or solicit legal advice.”
In re County
of Erie, 473 F.3d at 420; accord United States v. Mount Sinai
Hospital, 185 F. Supp. 3d 383, 389 (S.D.N.Y. 2016).
protects both the advice of the attorney to the client and the
information communicated by the client that provides a basis for
See Upjohn Co. v. United States, 449 U.S. 383, 390
(1981); In re Six Grand Jury Witnesses, 979 F.2d 939, 943–44 (2d
Cir. 1992); In re General Motors LLC Ignition Switch Litigation
(“In re GM”), 80 F. Supp. 3d 521, 527 (S.D.N.Y. 2015); Chen-Oster
v. Goldman, Sachs & Co., 293 F.R.D. 547, 554 (S.D.N.Y. 2013).
“[T]he burden is on a party claiming the protection of a privilege
to establish those facts that are the essential elements of the
In re Grand Jury Subpoena Dated Jan. 4,
1984, 750 F.2d 223, 224 (2d Cir. 1984); accord In re Grand Jury
Subpoena Dated July 6, 2005, 510 F.3d 180, 184 (2d Cir. 2007);
Mount Sinai, 185 F. Supp. 3d at 391; Ghavami, 882 F. Supp. 2d at
1. Proskauer Documents
The Corporate Defendants have met this burden with respect to
many of the Proskauer Documents.
At the outset, it should be made
clear that, although JWT has treated the Proskauer Report as
confidential, it is not the Report itself that is at issue, but
rather the documents generated during the investigation.
Memo. at 1); see In re GM, 80 F. Supp. 3d at 529 (finding interview
Ms. Plevan attests that Proskauer was retained by
the Corporate Defendants “to provide legal advice regarding the
allegations in the Lawsuit and conduct an investigation . . . in
(Declaration of Bettina B. Plevan dated
retention, Proskauer attorneys conducted the investigation and
“discussed legal issues surrounding the Lawsuit with [Davis &
Gilbert, outside counsel for the Corporate Defendants] and, based
regarding defending against the Lawsuit and further steps JWT
should take in the future with respect to its human resources
(Plevan Decl., ¶ 8).
In addition, materials generated
in the course of the investigation, including notes of employee
interviews, have not been revealed to any third party, consistent
with representations to the interviewees that the interviews were
protected by the attorney-client privilege and should be kept
(Plevan Decl., ¶¶ 3, 7).
challenges the proposition that the Proskauer Documents reflect
the communication of legal advice.
The circumstances of the creation of  the Proskauer
Report and the Rossein Report make clear that the
retentions were not to obtain legal advice for the
corporate defendants, advice and an investigation they
had already secured from [outside counsel].
. . . those reports were obtained to create the
consistent violations of the equal employment laws.
Defendants’ Motion for Protective Order (“Pl. Memo.”) at 6).
With respect to many of the Proskauer Documents, I disagree.
“Rare is the case that a troubled corporation will initiate an
internal investigation solely for legal, rather than business,
purposes; indeed, the very prospect of legal action against a
company necessarily implicates larger concerns about a company’s
internal procedures and controls, not to mention its bottom line.”
In re GM, 80 F. Supp. 3d at 530. Yet the purpose of a communication
need not be exclusively legal in order for the privilege to attach.
Rather, the legal purpose need only be predominant, and
identification of such a purpose “may  be informed by the overall
needs and objectives that animate the client’s request for advice.”
In re County of Erie, 473 F.3d at 421.
Here, there were no doubt
multiple motivations for commencing an internal investigation and
engaging in the subject communications: to gather information to
defend this lawsuit; to determine whether systemic changes were
necessary; to decide on a course of action specifically with
respect to Mr. Martinez; and to ameliorate a public relations
Yet all of these purposes were suffused with the need
for legal advice triggered by a lawsuit that had already been
This is confirmed by the fact that the Proskauer report
contains multiple references to the allegations contained in the
lawsuit (Proskauer Report at 1, 7, 9, 11, 15-16) as well as the
fact that its recommendations reflect the application of legal
expertise (Proskauer Report at 17-19).
The plaintiff complains
that any claim that the Proskauer investigation had a primarily
(Pl. Memo. at 6).
But, surely, the fact that a
client chooses to seek legal advice from multiple attorneys does
not cast doubt on the privileged nature of communications with any
one of them.
categories of documents relating to the investigation that have
been withheld by the Corporate Defendants.
of a corporation’s employees by its attorneys as part of an
internal investigation into wrongdoing and potentially illegal
conduct have been repeatedly found to be protected by the attorneyclient privilege.”
Gruss v. Zwirn, 276 F.R.D. 115, 124 (S.D.N.Y.
2011) (collecting cases), rev’d in part on other grounds, No. 09
principle applies with full force to the interview notes created
by Proskauer here.
Similarly, the drafts of the Proskauer Report are privileged.
A draft of a document may be privileged if the draft constitutes
an attorney-client communication and was itself intended to be
September 15, 1983, 731 F.2d 1032, 1037 (2d Cir. 1984); S.E.C. v.
Beacon Hill Asset Management LLC, 231 F.R.D. 134, 145 (S.D.N.Y.
2004); Softview Computer Products Corp. v. Haworth, Inc., No. 97
Civ. 8815, 2000 WL 351411, at *15 (S.D.N.Y. March 31, 2000); Sequa
Corp. v. Gelmin, No. 91 Civ. 8675, 1994 WL 538124 at *3 (S.D.N.Y.
Oct. 3, 1994).
This is true even where the document in its final
form is intended to be disseminated publicly.
In re Grand Jury
Subpoena Duces Tecum, 731 F.2d at 1037; Sequa Corp., 1994 WL
538124, at *3.
As discussed above, the Proskauer Report reflects
the provision of legal advice, so the drafts of that report are
privileged in their entirety, they are also subject to work product
protection, as will be discussed below.
To the extent that they include relevant information, the
investigation are privileged.
Ms. Johnson argues that “[u]nder
general purpose of the work performed, are not generally protected
from disclosure by the attorney-client privilege.”
(Pl. Memo. at
9 (quoting Riddell Sports, Inc. v. Brooks, 158 F.R.D. 555, 560
This is correct, as far as it goes.
the plaintiff acknowledges, where “the specific nature of the
services provided” is included in attorney time records, those
records may be privileged.
(Pl. Memo. at 10 (quoting Diversified
Group, Inc. v. Daudergas, 304 F. Supp. 2d 507, 514 (S.D.N.Y.
Here, the invoices would only conceivably be relevant to
the claims and defenses in this action to the extent they are
sufficiently detailed to reveal privileged communications.
The documents received by Proskauer from JWT and from the
employees that the firm interviewed do not acquire privileged
status merely because they were transferred to the law firm.
Gould, Inc. v. Mitsui Mining & Smelting Co., 825 F.2d 676, 679-80
(2d Cir. 1987); Camp v. Berman, Nos. 14 Civ. 1049, 14 Civ. 2705,
15 Civ. 2586, 2015 WL 3917538, at *3 (S.D.N.Y. June 25, 2015).
The Corporate Defendants do not argue otherwise, but instead
contend that the selection of the documents constitutes attorney
work product (Def. Memo. at 17-19), an issue dealt with below.
Finally, Ms. Johnson contends that Proskauer’s communications
involvement was unnecessary in order for Davis & Gilbert to provide
its legal advice to the Corporate Defendants.
(Pl. Memo. at 10-
According to the plaintiff, “[i]t strains credulity to
imagine that an attorney evaluating [employment] laws would not be
able to speak with employees or interpret those laws on his own.”
(Pl. Memo. at 11 (quoting Scott v. Chipotle Mexican Grill, Inc.,
94 F. Supp. 3d 585, 595 (S.D.N.Y. 2015) (alterations in original)).
This is a straw man.
The Scott case involved the application of
confidential information to a third-party does not destroy the
“translation” services that are necessary for the provision of
See United States v. Kovel, 296 F.2d 918, 921-22
(2d Cir. 1961) (holding that “the presence of an accountant,
whether hired by the lawyer or by the client, while the client is
relating a complicated tax story to the lawyer, ought not destroy
the privilege, any more than would that of [a] linguist [used for
translation]; the presence of the accountant is necessary, or at
least highly useful, for the effective consultation between the
client and the lawyer which the privilege is designed to permit.”).
employees and Davis & Gilbert; rather, it was retained to provide
its own legal advice to the Corporate Defendants.
Proskauer’s communications with other attorneys who were also
Sudarsky v. City of New York, No. 89 Civ. 5150, 1990 WL 193964, at
*2 (S.D.N.Y. Nov. 28, 1990) (holding communication among cocounsel reflecting legal advice to common client privileged); Stix
Products, Inc. v. United Merchants & Manufacturers, Inc., 47 F.R.D.
334, 339 (S.D.N.Y. 1969) (same).
2. Rossein Documents
withheld, they also identify three documents as subject to the
support for application of the privilege is thin. Howard J. Rubin,
a partner at Davis & Gilbert, attests that he contacted Professor
Rossein on behalf of the Corporate Defendants and engaged him “to
provide [Mr. Martinez] with equal employment training and provide
legal advice to Defendants about the Lawsuit, Defendants’ training
practices, and the retention of Martinez in an executive position
elsewhere within WPP.”
(Rubin Decl., ¶ 4).
The record contains
no engagement letter and no statement from Professor Rossein.
Rossein Report itself provides no indication that its author
Defendants shall submit the Rossein Documents as to which they
claim attorney-client privilege for my in camera review.
B. Work Product Doctrine
The work product doctrine “shields from disclosure materials
prepared ‘in anticipation of litigation’ by a party, or the party’s
representative, absent a showing of substantial need.”
States v. Adlman, 68 F.3d 1495, 1501 (2d Cir. 1995) (quoting Fed
R. Civ. P. 26(b)(3)); accord Bloomingburg Jewish Education Center
v. Village of Bloomingburg, 171 F. Supp. 3d 136, 141 (S.D.N.Y.
Opinion work product, consisting of “mental impressions,
conclusions, opinions or legal theories . . . concerning the
litigation,” Upjohn, 449 U.S. at 400, is entitled to greater
protection than factual material, In re Grand Jury Subpoena, 510
F.3d at 183, and must be protected “unless a highly persuasive
showing [of need] is made,”
In re Grand Jury Proceedings, 219
F.3d 175, 190 (2d Cir. 2000) (quoting United States v. Adlman, 134
F.3d 1194, 1204 (2d Cir. 1998) (alteration in original)), as, for
example, when counsel’s thought processes are central to the
litigation, see Anilao v. Spota, No. 10 CV 32, 2015 WL 5793667, at
*13 (E.D.N.Y. Sept. 30, 2015); Tribune Co. v. Purcigliotti, No. 93
Civ. 7222, 1998 WL 175933, at *4 (S.D.N.Y. April 14, 1998).
burden of establishing any right to protection is on the party
asserting it, In re Grand Jury Subpoenas Dated March 19, 2002 &
August 2, 2002, 318 F.3d 379, 384 (2d Cir. 2003), and is “not
‘discharged by mere conclusory or ipse dixit assertions,’” In re
Grand Jury Subpoena, 750 F.2d at 225 (quoting In re Bonanno, 344
F.2d 830, 833 (2d Cir. 1965)).
The protection claimed must be
narrowly construed and its application must be consistent with the
purposes underlying the asserted immunity.
In re Grand Jury
Subpoenas, 318 F.3d at 384.
“Under Rule 26(b)(3) of the Federal Rules of Civil Procedure,
‘[t]hree conditions must be fulfilled in order for work product
protection to apply.
The material must (1) be a document or a
litigation, and (3) was prepared by or for a party, or by his
DeAngelis v. Corzine, Nos. 11 Civ. 7866, 12 MD
2338, 2015 WL 585628, at *4 (S.D.N.Y. Feb. 9, 2015) (alteration in
Litigation, No. 05 MD 1695, 2007 WL 724555, at *4 (S.D.N.Y. March
Work product immunity, however, encompasses more than
the rule indicates, and includes “intangible work product: an
attorney’s analysis made in anticipation of litigation, but which
discovery just as if it had been reduced to writing.”
882 F. Supp. 2d at 539; accord Obeid v. Mack, No. 14 Civ. 6498,
2016 WL 7176653, at *5 (S.D.N.Y. Dec. 9, 2016); see also United
States v. Deloitte LLP, 610 F.3d 129, 136 (D.C. Cir. 2010) (holding
that Hickman v. Taylor, 329 U.S. 495 (1947), “provides work-product
A document is prepared “in anticipation of litigation” if “in
light of the nature of the document and the factual situation in
the particular case, it can fairly be said to have been prepared
or obtained because of the prospect of litigation.”
United States, 806 F.3d 34, 43 (2d Cir. 2015) (quoting Adlman, 134
F.3d at 1202).
“Although a document
not lose protection
. . . merely because it is created in order to assist with a
litigation, the document would have been prepared anyway, in the
ordinary course of business . . . , it is not entitled to work
(alterations in original) (quoting Adlman, 134 F.3d at 1202, and
Clarke v. J.P. Morgan Chase & Co., No. 08 Civ. 2400, 2009 WL
970940, at *7 (S.D.N.Y. April 10, 2009)).
1. Proskauer Documents
Ms. Johnson does not contest that the Proskauer Documents
were created by JWT or its counsel in anticipation of litigation,
indeed, in connection with litigation already filed.
contends that, as a business matter, it was JWT’s policy to
Documents would have been prepared for this independent business
purpose, regardless of the litigation.
(Pl. Memo. at 11-12).
be sure, routine investigations undertaken by a company’s human
resources department in response to a claim of discrimination may
not implicate the work product doctrine.
Nevertheless, even where
a business like JWT has a policy of conducting such investigations,
the circumstances of a particular investigation may indicate that
it had a unique purpose related to impending litigation, triggering
work product protection.
So, for example,
In Adams [v. City of Montgomery, 282 F.R.D. 627 (M.D.
Ala. 2012)], a municipality’s employee filed an
internal-affairs complaint alleging discrimination, and
threatened suit. 282 F.R.D. at 633. The city’s attorney
tasked a non-attorney with conducting an internal
investigation of the complaint. Id. at 630–33. In the
subsequent suit, the city asserted that documents
related to the internal investigation were protected by
the work product doctrine.
The Court agreed, noting
that the attorney that supervised the investigation had
raised the potential for litigation and emphasized the
need for confidentiality, that the employee’s internal
affairs complaint had indicated that the employee had
already begun legal action, and that the city’s internal
correspondence concerning the employee’s complaint
referenced the work product doctrine.
Id. at 633–34.
investigations, which would not always be entitled to
work product protection, this particular investigation
in Adams was instigated as a result of a direct threat
of litigation, and was protected.
United States ex rel. Bibby v. Wells Fargo Bank, N.A., 165 F. Supp.
3d 1319, 1325 (N.D. Ga. 2015).
So it is here.
JWT has a written policy for investigating
(Employee Policy Manual, attached as
Exh. 12 to Vladeck Decl., at 3).
But the investigation that led
to the Proskauer Report was unique in several ways.
contrast to Adams, litigation had not just been threatened; it had
already been commenced.
See Martinez v. Kleinfeld Bridal Corp.,
No. 16 Civ. 348, 2017 WL 2859941, at *3 (S.D.N.Y. June 30, 2017)
discrimination complaint was primarily for business purposes, that
timing of notes taken day after employee termination suggested
anticipation of litigation). Second, JWT did not rely on its human
investigation, but instead engaged outside counsel.
the product of the investigation -- the Proskauer Report -- does
not appear to be in a form consistent with routine investigations
of discrimination complaints.
Generally, then, the Proskauer
Documents are subject to work product protection.
That is not necessarily the case, however, for the documents
simply provided to Proskauer by JWT and the interviewees.
If they are entitled to work product protection at
all, it is because their disclosure would reveal the thought
processes of the attorneys who solicited them.
availability of documents from both parties and non-parties during
S.E.C. v. Collins & Aikman Corp., 256 F.R.D. 403, 408
(S.D.N.Y. 2009); see Sporck v. Peil, 759 F.2d 312, 316 (3d Cir.
However, as the Second Circuit has held:
Not every selection and compilation of third-party
documents by counsel transforms that material into
attorney work product.
To fit within what we have
repeatedly characterized as a “narrow exception” to the
possession of an attorney do not merit work product
protection, the party asserting the privilege must show
“a real, rather than speculative, concern” that
counsel’s thought processes “in relation to pending or
disclosure of the compiled documents.
In re Grand Jury Subpoenas, 318 F.3d at 386 (citations omitted)
(quoting Gould, 825 F.2d at 680); accord Collins & Aikman, 256
F.R.D. at 408.
Here, there is little danger that the thought
Corporate Defendants point out, most of the documents at issue
have already been produced in response to other discovery demands.
(Def. Memo. at 19).
Therefore, the disclosure of a small subset
of the documents solicited by counsel will not expose their overall
Since these documents are protected by neither the
Corporate Defendants shall produce them.
With respect to the remaining documents, the work product
doctrine is not absolute, and can be overcome by a showing of
substantial need for production of the subject materials and the
inability to obtain equivalent information from other sources.
See Adlman, 134 F.3d at 1197, 1204; In re Methyl Tertiary Butyl
Ether (MTBE) Products Liability Litigation, 293 F.R.D. 568, 574
The plaintiff has not met that burden here.
Plaintiff’s counsel will be provided with the same documents
Proskauer reviewed, and they have access to the same witnesses.
See United States v. Zhu, 77 F. Supp. 3d 327, 330 (S.D.N.Y. 2014)
(finding no undue hardship from denying disclosure of interview
notes where interviewee could be questioned).
To the extent it is
necessary for counsel to take the depositions of these witnesses
rather than interview them informally, they are free to seek an
order relaxing the limits on numbers of depositions.
2. Rossein Documents
As with the claim of attorney-client privilege, the record
remains undeveloped with respect to the assertion of work product
protection as to the Rossein Documents. There is little that would
assist me, for example, in ascertaining whether any of the Rossein
Documents were created “because of” the litigation or, on the other
hand, are of the type that would have been created in connection
Corporate Defendants shall therefore submit for in camera review
Although, as discussed above, many of the Proskauer documents
are subject to either the attorney-client privilege or workproduct immunity, both of these protections “may implicitly be
waived when [the] defendant asserts a claim that in fairness
requires examination of protected communications.”
v. Bilzerian, 926 F.2d 1285, 1292 (2d Cir. 1991); see also John
Doe Co. v. United States, 350 F.3d 299, 302 (2d Cir. 2003) (noting
that party waives both attorney-client and work product protection
by placing substance of protected documents at issue); DeAngelis,
2015 WL 585628, at *6 (“The ‘fairness doctrine’ analysis applies
to waiver of work-product protection just as it does to waiver of
attorney-client privilege.”). 3 A person may waive protection where
he “asserts a factual claim the truth of which can only be assessed
by examination of a privileged communication,” even if he does not
explicitly rely on that communication.
Chevron Corp. v. Donziger,
No. 11 Civ. 691, 2013 WL 6182744, at *3 (S.D.N.Y. Nov. 21, 2013)
(quoting Bowne of New York City, Inc. v. AmBase Corp., 150 F.R.D.
communication may merely be relevant to a claim or defense is
insufficient to forfeit protection.
In re County of Erie, 546
F.3d at 229; accord Aiossa v. Bank of America, N.A., No. 10 CV
1275, 2011 WL 4026902, at *5 (E.D.N.Y. Sept. 12, 2011).
disclosure,” which must be determined “on a case-by-case basis,
As the plaintiff points out, “Federal Rule of Evidence 502
codifies the doctrine of subject matter waiver where disclosure is
made in a federal proceeding.” (Pl. Memo. at 17).
provides that disclosure of attorney-client communications or work
product waives protection for undisclosed materials only if “(1)
the waiver is intentional; (2) the disclosed and undisclosed
communications or information concern the same subject matter; and
(3) they ought in fairness be considered together.” Fed. R. Evid.
Here, the Corporate Defendants disclosed the Proskauer
Report intentionally, and that report concerns the same subject
matter as the underlying investigation, so the first two
requirements for waiver are met. The dispute concerns the third
prong, which is effectively a codification of the common law “at
issue” doctrine. See S.E.C. v. Wyly, No. 10 Civ. 5760, 2011 WL
3366491, at *2 (S.D.N.Y. July 27, 2011).
privilege is asserted.”
In re Grand Jury Proceedings, 219 F.3d at
When the harasser is a “supervisor” and
“no tangible employment action is taken,” the corporate “employer
may escape liability by establishing, as an affirmative defense,
that (1) the employer exercised reasonable care to prevent and
corrective opportunities that the employer provided.”
Ball State University, __ U.S. __, __, 133 S. Ct. 2434, 2439 (2013)
(citing Faragher v. City of Boca Raton, 524 U.S. 775, 807 (1998),
and Burlington Industries, Inc. v. Ellerth, 524 U.S. 742, 765
“When an employer puts the reasonableness of an internal
investigation at issue by asserting the Faragher/Ellerth defense,
the employer waives any privilege that might otherwise apply to
documents concerning that investigation.”
Robinson v. Vinyard
Vines, LLC, No. 15 Civ. 4972, 2016 WL 845283, at *4 (S.D.N.Y. March
4, 2016) (quoting Koumoulis v. Independent Financial Marketing
Group, Inc., 295 F.R.D. 28, 41 (E.D.N.Y. 2013), aff’d, 29 F. Supp.
3d 142 (E.D.N.Y. 2014)); see also Angelone v. Xerox Corp., No. 09CV-6019, 2012 WL 537492, at *3 (W.D.N.Y. Feb. 17, 2012).
Faragher/Ellerth defense in their Answer.
(Defendants J. Walter
Thompson U.S.A., LLC, J. Walter Thompson Company, LLC and WPP PLC’s
reasonable care to prevent and correct any alleged discriminatory
or retaliatory conduct and Plaintiff unreasonably failed to take
advantage of preventive or corrective opportunities provided by
However, they have since disavowed use of the
Proskauer Report in connection with any Farragher/Ellerth defense.
They first made this clear at a court conference (Transcript dated
April 26, 2017, attached as Exh. 6 to Vladeck Decl., at 5-8), and
Proskauer Report . . . to support their position that there has
been no violation of the law . . . .”
(Reply Memorandum of Law in
(“Reply”) at 8).
This does not, however, end the inquiry.
Defendants have indicated that they do intend to rely on the
Proskauer Report “to provide context for the actions they took as
a result of the business recommendations in the Report.”
They contend that “[t]he fact is that Proskauer conducted
an investigation and Defendants took certain actions based on same
in good faith.”
(Reply at 9).
From this, the Corporate Defendants
argue that “the sufficiency of Proskauer’s investigation and/or
the accuracy of its conclusions and recommendations have no bearing
on the ultimate issue of liability.”
correct as far as it goes.
(Reply at 9).
Reliance by the Corporate Defendants
on the conclusions of the report does not open up to discovery the
details of the investigation that led to the report.
See House v.
Wackenhut Services, Inc., No. 10 Civ. 9476, 2012 WL 4017334, at
*17 (S.D.N.Y. Aug. 20, 2012) (finding that challenge to truth of
report relied upon by employer was “a red herring,” since relevant
issue was employer’s good faith reliance, not accuracy of report).
Therefore, there is no waiver with respect to the categories of
the Proskauer Documents that could be relevant, if at all, only to
the accuracy of the findings in the report, specifically, notes of
interviews of JWT employees, drafts of the report, and invoices.
However, when a party asserts a good faith defense, as the
Corporate Defendants appear to do here, it may not selectively
proffer the information upon which it relied.
“[T]he assertion of
a good-faith defense involves an inquiry into state of mind, which
typically calls forth the possibility of implied waiver of the
In re County of Erie, 546 F.3d at
228-29; see also In re Omnicom Group, Inc. Securities Litigation,
233 F.R.D. 400, 413-14 (S.D.N.Y. 2006) (“[I]f the substance of the
opinion -- whether privileged or not -- must be produced, so too
must any otherwise privileged communications that would be needed
to judge its provenance and reliability.”); In re Lehman Brothers
Holdings, Inc., No 10 Civ. 6200, 2011 WL 2651812, at *2 (S.D.N.Y.
June 22, 2011); American Steamship Owners Mutual Protection and
Indemnity Association, Inc. v. Alcoa Steamship Co., 232 F.R.D.
191, 198 (S.D.N.Y. 2005).
Here, the extent to which the Corporate
Defendants acted in good faith on the basis of the Proskauer Report
is dependent upon the totality of the legal advice they received.
Thus, the communications related to Proskauer’s conclusions, but
conclusions, are discoverable.
Accordingly, if they intend to
Defendants shall produce for my in camera review any documents
between themselves and Proskauer or between Proskauer and Davis &
Gilbert concerning the subject matter of the Proskauer Report.
disclosure of these documents to the plaintiff. 4
Within one week of the date of this order, the Corporate
The fact that the Corporate Defendants downplay the
importance of the Proskauer Report to the litigation -characterizing it as merely “providing context” -- does not alter
It may indicate, however, that the Corporate
Defendants should consider whether the limited evidentiary value
of the report warrants the risk of waiving privilege.
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