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

Filing 175

ORDER granting in part and denying in part 144 Motion to Compel; granting in part and denying in part 147 Motion to Compel; granting in part and denying in part 150 Motion to Compel; granting in part and denying in part 152 Motion to Compel. The motions are resolved as follows: Plaintiff shall produce a damages calculation for emotional distress and reputational injury only insofar as she seeks "special" damages such as reimbursement for therapy or compensation fo r specific lost job opportunities. To the extent she seeks garden variety emotional distress damages or compensation for general reputational injury, no "calculation" would be meaningful; and as further set forth herein. Each party shall fully comply with the terms of this Order within 30 days. SO ORDERED. (Signed by Magistrate Judge James C. Francis on 10/25/2017) Copies Transmitted this Date By Chambers. (anc)

would be meaningful.

Since plaintiff has disclaimed any intention

of suggesting a specific dollar amount or range for non-economic
damages to the jury (Declaration of Anne C. Vladeck dated Oct. 6,
2017 (“Vladeck Decl.”), ¶ 13), no estimate of such damages is
required.

See Ritchie v. Sempra Energy, No. 10 cv 1513, 2014 WL

12637955, at *7 (S.D. Cal. Aug. 4, 2014); E.E.O.C. v. Wal-Mart
Stores, Inc., 276 F.R.D. 637, 639 (E.D. Wash. 2011).
2. Plaintiff has not waived the attorney-client privilege for
communications with her counsel by failing to log them.

Direct

communications between attorney and client are generally treated
categorically, and creation of a log would be make-work; indeed,
defendants have not logged such communications.

(Vladeck Decl.,

¶ 30).
3.

Plaintiff

unsolicited

shall

inquiries

produce

regarding

any
job

documents

relating

opportunities

that

to
she

received after the filing of this action, as that information is
relevant to her claim of reputational injury.
4. Plaintiff shall produce any substantive communications
between her and the press about this litigation, the merits of the
lawsuit, or any efforts she made to publicize the lawsuit.
5. Plaintiff shall appear for a continuation of her deposition
for a total of no more than 10 additional hours.
6. Defendant Martinez shall produce the requested information
concerning his compensation on an attorneys’-eyes-only basis.
2

Disclosure of this information would be premature if it were sought
only in relation to a claim for punitive damages.

See Copantitla

v. Fiskardo Estiatorio, Inc., No. 09 Civ. 1608, 2010 WL 1327921,
at *16 (S.D.N.Y. April 5, 2010).

However, it is also relevant

here in connection with plaintiff’s claim of retaliation by the
Corporate Defendants based on how they treated defendant Martinez
in relation to how they treated her.
7.

Defendant

Martinez

shall

appear

in

New

York

for

a

continuation of his deposition for no more than one day (7 hours).
8. My August 9, 2017 Memorandum and Order (the “8/9/17 Order)
and my September 15, 2017 Order (the “9/15/17 Order”) are clarified
as follows: (a) the 9/15/17 Order applies to materials submitted
by the Corporate Defendants in August 2017, and privilege was not
waived as to those materials; (b) reference in the 8/9/17 Order to
communications

regarding

Proskauer’s

conclusions

being

discoverable includes oral as well as written communications; and
(c) the non-substantive materials referred to in the 9/15/17 Order
are irrelevant and need not be produced.
9. The Proskauer Report shall remain under seal until such
time as the Corporate Defendants affirmatively indicate that they
will use it in connection with the litigation.
10.

Martin

Sorrell

shall

not

be

recalled

for

further

deposition testimony.
11. With respect to the Corporate Defendants’ email search:
3

a. The Corporate Defendants shall expand their email
searches to cover the time period from February 1, 2014 through
September 15, 2017.

For example, derogatory comments toward or

about women may be evidence of a hostile environment even if they
occurred prior to plaintiff’s employment, see Schwapp v. Town of
Avon, 118 F.3d 106, 111-12 (2d Cir. 1997), and they are also
relevant

to

defendant

Martinez’s

credibility.

Similarly,

communications after plaintiff’s return to work are relevant to
her claim of ongoing retaliation.
b. The Corporate Defendants need not search the email of
the additional custodians proposed by plaintiff.

Plaintiff has

offered no reason to believe that the information possessed by
these custodians would be materially different from that already
produced by other witnesses with the exception of Jeff Benjamin,
and as to Mr. Benjamin, the Corporate Defendants have executed a
targeted search.

(Declaration of Howard J. Rubin dated Oct. 6,

2016 [sic] (“Rubin Decl.”), ¶ 25).
c. The Corporate Defendants shall search the electronic
files of Jinal Shah, Anaka Kobzev, and Jocelyn Weiss-Malas for
comments and incidents potentially reflecting bias by defendant
Martinez beyond simply those relating to the words “rape” or
“hogtie.”
d. The Corporate Defendants shall search the electronic
files of Jinal Shah, Keni Thacker, and Perry Fair for documents
4

relating to the allegations of the Complaint, including but not
limited to the Miami meeting.
e. The Corporate Defendants shall search the electronic
files of Mark Linaugh for the period identified in paragraph 11(a)
above but need not expand the substantive scope of their search.
f. The Corporate Defendants need not search defendant
Martinez’s electronic files for individual names standing alone.
g. The Corporate Defendants shall search the electronic
files of Lew Trencher, Laura Agostini, and plaintiff for the period
identified in paragraph 11(a) above but need not repeat the search
already conducted.

(Rubin Decl., ¶ 29).

h. The Corporate Defendants shall search the electronic
files

of

defendant

Martinez

in

Spanish

and

Italian

using

translations of the relevant key words already applied.
12. With respect to the Corporate Defendants’ production:
a. The Corporate Defendants have adequately explained
the absence of documents regarding the recruitment and hiring of
defendant Martinez.

(Corporate Defendants’ Memorandum of Law in

Opposition to Plaintiff’s Motion Seeking Clarification of Certain
Court Orders; Her Motion to Lift a Protective Order; and Her Motion
to Compel Discovery From Corporate Defendants (“Corp. Def. Opp.
Memo.”) at 17).
b. The Corporate Defendants have adequately explained
the absence of documents regarding defendant Martinez’s language
5

proficiencies.

(Corp. Def. Opp. Memo. at 17-18).

c. The Corporate Defendants shall produce documents
sufficient to show how plaintiff’s bonuses were calculated for the
period 2011 through the present, as these are relevant to her
retaliation claim.
d.
adequately

The

Corporate

explained

the

Defendants

absence

of

have

produced

documents

and/or

regarding

the

cancellation of the 2015 London meeting, the decision not to send
plaintiff’s team to London to receive an award, and the removal of
her “thought leadership” duties.

(Rubin Decl., ¶¶ 31-32).

e. The Corporate Defendants have adequately searched for
documents concerning defendant Martinez’s negative opinion of
other female employees.

(Corp. Def. Opp. Memo. at 18).

f. The Corporate Defendants have adequately searched for
documents

concerning

affidavits.

the

knowledge

of

persons

who

submitted

(Corp. Def. Opp. Memo. at 18).

g. The Corporate Defendants shall produce the requested
insurance policies.

See Fed. R. Civ. P. 26(a)(1)(A)(iv).

h. The Corporate Defendants shall produce documents
sufficient to show the terms of each engagement of defendant
Martinez by WPP following his separation from JWT.
i.

The

Corporate

Defendants

need

not

produce

“all

documents reflecting the personal and professional relationship of
Martinez with the individuals that defendants have identified in
6

their disclosures” (Plaintiff’s Memorandum of Law in Support of
Her Motion Seeking Clarification of Certain Court Orders; Her
Motion to Lift a Protective Order; and Her Motion to Compel
Discovery from Corporate Defendants at 18), as this request is
overbroad.
j. The Corporate Defendants need not produce documents
reflecting the bonuses awarded to “comparators,” as plaintiff has
not adequately defined the set of persons reasonably considered
comparators.
k. The Corporate Defendants need not produce documents
reflecting

defendant

Martinez’s

opinions

about

living

in

Westchester and the Jewish residents there, as this request is
overbroad.
l.

The

Corporate

Defendants

need

not

produce

EEO

complaints made by other employees concerning sex discrimination,
sexual harassment, hostile work environment, or retaliation, as
this request is overbroad.
m.
documents

The

Corporate

concerning

Defendants

plaintiff’s

need

not

relationship

produce

with

all

defendant

Martinez as this request is overbroad.
n.

The

communications
privileged.

Corporate

with

Defendants

Finsbury

In contrast to

need

Communications

not

produce

the

identified

as

Calvin Klein Trademark Trust v.

Wachner, 198 F.R.D. 53, 54 (S.D.N.Y. 2000), this is the unusual
7

case in which the public relations firm effectively fills the role
of a corporate employee in communicating with outside counsel, see
In re Copper Market Antitrust Litigation, 200 F.R.D. 213, 220
(S.D.N.Y. 2001).
o. The Corporate Defendants have represented that all
video recordings of defendant Martinez have been produced, and
they need not respond further to this request.

(Rubin Decl., ¶¶

3, 18).
p. The Corporate Defendants have adequately responded to
plaintiff’s requests for documents relating to the reassignment of
her job responsibilities.

(Rubin Decl., ¶¶ 18, 24, 33; Corp. Def.

Opp. Memo. at 24-25).
13. With respect to defendant Martinez’s discovery responses:
a.
skepticism.

Courts

view

the

self-collection

of

data

with

See Markey v. Lapolla Industries, Inc., No. 12 CV

4622, 2015 WL 5027522, at *21 (E.D.N.Y. Aug. 25, 2015) (criticizing
process and imposing sanctions where “the attorneys had little to
no direct contact with Plaintiffs during the process of gathering
the responsive documents”); Northington v. H & M International,
No. 08-CV-6297, 2011 WL 663055, at *17 (N.D. Ill. Jan. 12, 2011)
(finding defendant at fault where it “never tasked anyone other
than the custodians themselves to search their computer hard
drives, hard copy documents, or other sources for potentially
relevant

evidence”);

Pension

Committee
8

of

the

University

of

Montreal Pension Plan v. Banc of America Securities, LLC, 685 F.
Supp. 2d 456, 473 (S.D.N.Y. 2010) (finding process ineffective
where counsel’s “directive places total reliance on the employee
to search and select what that employee believed to be responsive
records without any supervision from Counsel”), abrogated on other
grounds by Chin v. Port Authority of New York & New Jersey, 685
F.3d 185 (2d Cir. 2012).

That is particularly so where, as here,

the individual asked to collect responsive information is an
alleged wrongdoer.

As one court has reasoned:

[D]efendant directed just three employees (one of whom
was at the center of plaintiff’s complaints) to search
their own email without help from counsel and to cull
from that email what would be relevant documents. It is
unreasonable to allow a party’s interested employees to
make the decision about the relevance of such documents,
especially when those same employees have the ability to
permanently delete unfavorable email from a party's
system. . . . Most non-lawyer employees . . . do not
have enough knowledge of the applicable law to correctly
recognize which documents are relevant to a lawsuit and
which are not. Furthermore, employees are often
reluctant to reveal their mistakes or misdeeds.
Jones v. Bremen High School District 228, No. 08 C 3548, 2010 WL
2106640, at *7 (N.D. Ill. May 25, 2010).

Counsel shall therefore

review defendant Martinez’s personal email account and electronic
devices and produce any information responsive to plaintiff’s
discovery requests that has not yet been disclosed.
b.

Defendant

Martinez

need

not

produce

information

regarding the Revlon lawsuit as it is irrelevant.
c.

Defendant

Martinez
9

need

not

produce

documents