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

Filing 128

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
the

Federal

Rules

of

Civil

Procedure

for

a

protective

order

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.
Background 1
JWT is an international advertising agency based in New York,
and Ms. Johnson has been its Chief Communications Officer since
2009.

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.

1

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).
2

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
rape.

Id.

Ms. Johnson further alleges that Mr. Martinez would

frequently rub her shoulders and stroke her face.

Id.

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

[plaintiff’s] outlandish allegations.”
original).

absolutely

no

truth

to

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
14,

2016,

pursuant

JWT
to

and

Ms.

Plevan

executed

which

the

Proskauer

firm

an

engagement

agreed

investigation of Ms. Johnson’s allegations.

to

letter,

conduct

an

(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.”)).

The

following day, an article appeared in the Wall Street Journal
announcing

the

Proskauer

investigation
3

and

reiterating

Mr.

Martinez’s denial of the plaintiff’s allegations.

(“WPP Hires

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
17, 2016.
Europe.” 2

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,
2016.

(JWT

Investigation

Report

(the

“Proskauer

Report”),

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
within WPP.”

(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.
Martinez’s

demeanor

and

understanding

of

the

subject

matter.

(Rubin Decl., ¶ 4; Report of Merrick T. Rossein Concerning Equal

2

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).
4

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
than

the

defendants,

their

counsel,

and,

subject

confidentiality order, the plaintiff and her counsel.

to

a

(Rubin

Decl., ¶ 5).
During the course of discovery in this action, the plaintiff
served deposition and document subpoenas on both Ms. Plevan and
Professor

Rossein.

(Subpoena

addressed

to

Bettina

Plevan,

attached as Exh. A to Rubin Decl.; Subpoena addressed to Merrick
Rossein,

attached

as

Exh.

B

to

Rubin

Decl.).

In

response,

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
doctrine.
handwritten

Proskauer has declined to disclose (1) electronic and
notes

taken

by

Proskauer

attorneys

during

the

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”).
5

(Non-

Party Proskauer Rose Privilege Log, attached as Exh. D to Rubin
Decl.).
and

Professor Rossein is withholding emails between himself

counsel

Defendants

for

Mr.

concerning

Martinez
the

or

lawsuit

counsel
(the

for

the

“Rossein

Corporate

Documents”).

(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.
Discussion
A.

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,
the

touchstone

is

“whether

the

predominant

purpose

communication is to render or solicit legal advice.”

of

the

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).

The privilege

protects both the advice of the attorney to the client and the
6

information communicated by the client that provides a basis for
giving advice.

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
privileged relationship.”

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
536.
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.

(Def.

Memo. at 1); see In re GM, 80 F. Supp. 3d at 529 (finding interview
notes

privileged

investigation).

even

where

party

disclosed

final

report

of

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
7

connection therewith.”
May

9,

2017

(Declaration of Bettina B. Plevan dated

(“Plevan

Decl.”),

¶

2).

Consistent

with

that

retention, Proskauer attorneys conducted the investigation and
“discussed legal issues surrounding the Lawsuit with [Davis &
Gilbert, outside counsel for the Corporate Defendants] and, based
on

the

results

of

the

Investigation,

made

recommendations

regarding defending against the Lawsuit and further steps JWT
should take in the future with respect to its human resources
function.”

(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
confidential.

(Plevan Decl., ¶¶ 3, 7).

Notwithstanding

these

representations,

the

plaintiff

challenges the proposition that the Proskauer Documents reflect
the communication of legal advice.

She argues:

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].
Rather,
. . . those reports were obtained to create the
impression
of
remedial
action
after
Martinez’s
consistent violations of the equal employment laws.
(Plaintiff’s

Memorandum

of

Law

in

Opposition

to

Corporate

Defendants’ Motion for Protective Order (“Pl. Memo.”) at 6).

8

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.
Id.

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
problem.

Yet all of these purposes were suffused with the need

for legal advice triggered by a lawsuit that had already been
filed.

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).
9

The plaintiff complains

that any claim that the Proskauer investigation had a primarily
legal

purpose

Defendants’

is

undermined

outside

conducted one.

counsel,

by

the

Davis

(Pl. Memo. at 6).

fact
&

that

the

Gilbert,

Corporate

had

already

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.
The

attorney-client

privilege,

then,

applies

to

most

categories of documents relating to the investigation that have
been withheld by the Corporate Defendants.

First, “[i]nterviews

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
Civ.

6441,

2013

WL

3481350

(S.D.N.Y.

July

10,

2013).

That

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
confidential.

In

re

Grand

Jury

Subpoena

Duces

Tecum

Dated

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.
10

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
similarly

privileged.

Moreover,

even

if

the

drafts

are

not

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
invoices

generated

by

Proskauer

in

connection

with

its

investigation are privileged.

Ms. Johnson argues that “[u]nder

Federal

fee

common

law,

attorney

arrangements,

including

the

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
(S.D.N.Y. 1994)).

This is correct, as far as it goes.

But, as

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.
2003)).

Here, the invoices would only conceivably be relevant to
11

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.

See

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
with

Davis

&

Gilbert

are

not

privileged

because

Proskauer’s

involvement was unnecessary in order for Davis & Gilbert to provide
its legal advice to the Corporate Defendants.
11).

(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

the

which

Kovel

doctrine,

holds

that

the

communication

of

confidential information to a third-party does not destroy the
privilege

where

the

third-party
12

provides

the

equivalent

of

“translation” services that are necessary for the provision of
legal advice.

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.”).
But

Proskauer

was

not

engaged

to

“translate”

between

JWT’s

employees and Davis & Gilbert; rather, it was retained to provide
its own legal advice to the Corporate Defendants.
of

the

Kovel

doctrine

are

therefore

The boundaries

irrelevant

here,

and

Proskauer’s communications with other attorneys who were also
advising

its

clients

does

not

undermine

the

privilege.

See

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
While

the

Corporate

protection

for

most

of

Defendants
the

Rossein

assert

only

Documents

work

that

product

they

have

withheld, they also identify three documents as subject to the
13

attorney-client

privilege.

(Rossein

Privilege

Log).

Here,

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.

The

Rossein Report itself provides no indication that its author
performed

any

services

training

and

commenting

Accordingly,

to

permit

other

an

on

than

conducting

the

Mr.

Martinez’s

participation.

assessment,

the

informed

requested

Corporate

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.”

United

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.
2016).

Opinion work product, consisting of “mental impressions,

conclusions, opinions or legal theories . . . concerning the
14

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).

The

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

tangible

that

thing,

(2)

was

prepared

in

anticipation

of

litigation, and (3) was prepared by or for a party, or by his
15

representative.’”

DeAngelis v. Corzine, Nos. 11 Civ. 7866, 12 MD

2338, 2015 WL 585628, at *4 (S.D.N.Y. Feb. 9, 2015) (alteration in
original)

(quoting

In

re

Veeco

Instruments,

Inc.

Securities

Litigation, No. 05 MD 1695, 2007 WL 724555, at *4 (S.D.N.Y. March
9, 2007)).

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
has

not

been

memorialized.

Such

work

product

is

immune

discovery just as if it had been reduced to writing.”

from

Ghavami,

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
protection

for

intangible

work

product

independent

of

Rule

26(b)(3)”).
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.”

Schaeffler v.

United States, 806 F.3d 34, 43 (2d Cir. 2015) (quoting Adlman, 134
F.3d at 1202).

“Although a document

‘does

not lose protection

. . . merely because it is created in order to assist with a
business

decision,’‘[i]f,

regardless

of

the

prospect

of

litigation, the document would have been prepared anyway, in the
16

ordinary course of business . . . , it is not entitled to work
product

protection.’”

Chen-Oster,

293

F.R.D.

at

552-53

(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.

Rather, she

contends that, as a business matter, it was JWT’s policy to
investigate

any

claim

of

discrimination,

so

the

Proskauer

Documents would have been prepared for this independent business
purpose, regardless of the litigation.

(Pl. Memo. at 11-12).

To

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
17

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.
Although
the
city
routinely
conducted
internal
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

discrimination complaints.

(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.

First, in

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)
(finding,

in

response

to

contention

that

investigation

of

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
resources

personnel

or

even

in-house

counsel

to

investigation, but instead engaged outside counsel.

conduct

the

And, third,

the product of the investigation -- the Proskauer Report -- does

18

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.
documents

were

litigation.

not

themselves

created

in

These

anticipation

of

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.
and

compilation

accorded

to

of

documents

attorney

work

may

fall

product,

“[T]he selection

within
despite

the

protection

the

general

availability of documents from both parties and non-parties during
discovery.”

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.
1985).
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
general
rule
that
third-party
documents
in
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
anticipated
litigation”
will
be
exposed
through
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
19

F.R.D. at 408.
processes

of

Here, there is little danger that the thought

Proskauer

attorneys

will

be

revealed.

As

the

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
strategy.

Since these documents are protected by neither the

attorney-client

privilege

nor

the

work

product

doctrine,

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
(S.D.N.Y. 2013).

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.
20

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
with

any

human

resources

anti-discrimination

training.

The

Corporate Defendants shall therefore submit for in camera review
the

Rossein

Documents

as

to

which

they

assert

work

product

protection.
C. Waiver
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.”

United States

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

21

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.
465,

488

(S.D.N.Y.

1993)).

But

the

fact

that

a

privileged

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).
paramount

consideration

is

“[w]hether

fairness

The

requires

disclosure,” which must be determined “on a case-by-case basis,
and

depends

primarily

on

the

specific

3

context

in

which

the

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).
The rule
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.
502(a).
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).
22

privilege is asserted.”

In re Grand Jury Proceedings, 219 F.3d at

183.
In
arises

discrimination
when

a

cases,

defendant

Faragher/Ellerth defense.

the

issue

raises

of

what

waiver

is

frequently

known

as

the

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
correct

any-harassing

unreasonably

failed

to

behavior
take

and

(2)

advantage

of

that
the

the

plaintiff

preventive

corrective opportunities that the employer provided.”

or

Vance v.

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
(1998)).

“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).
In

this

case,

the

Corporate
23

Defendants

raised

a

Faragher/Ellerth defense in their Answer.

(Defendants J. Walter

Thompson U.S.A., LLC, J. Walter Thompson Company, LLC and WPP PLC’s
Answer

to

Fourth

Second

Amended

Affirmative

Complaint

Defense

at

and

23

Affirmative

(“Defendants

Defenses,
exercised

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
Defendants.”)).

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
they

state

“Defendants

unequivocally
will

not

be

in

their

using

the

reply

legal

memorandum

conclusions

that

in

the

Proskauer Report . . . to support their position that there has
been no violation of the law . . . .”
Further

Support

of

Defendants’

(Reply Memorandum of Law in

Motion

for

Protective

Order

(“Reply”) at 8).
This does not, however, end the inquiry.

The Corporate

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.”
at 8).

(Reply

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
24

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).

This is

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
attorney-client privilege.”

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
25

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
not

the

reliability

of

the

investigation

conclusions, are discoverable.
introduce

the

Proskauer

leading

to

those

Accordingly, if they intend to

Report

in

evidence,

the

Corporate

Defendants shall produce for my in camera review any documents
withheld

on

grounds

of

privilege

that

reflect

communications

between themselves and Proskauer or between Proskauer and Davis &
Gilbert concerning the subject matter of the Proskauer Report.
that

way,

I

can

determine

whether

fairness

necessitates

In
the

disclosure of these documents to the plaintiff. 4
Conclusion
Within one week of the date of this order, the Corporate
Defendants

shall

(1)

produce

to

4

the

plaintiff

all

documents

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
this analysis.
It may indicate, however, that the Corporate
Defendants should consider whether the limited evidentiary value
of the report warrants the risk of waiving privilege.
26