O'Rear v. Diaz

Background

S. O’Rear sued her employer, Merkley + Partners Inc. (referred to as “Merkley”), Merkley’s parent company, Omnicom Group Inc. (referred to as “Omnicom”), and Merkley’s creative director, Armando Diaz. She alleges that Diaz sexually assaulted and raped her after a holiday happy hour. Her claims include sexual harassment and negligent supervision under Title VII of the Civil Rights Act of 1964, along with related claims under New York State and New York City law.

The order resolves discovery disputes about complaints of sexual harassment and sexual assault. O’Rear moved under Federal Rules of Civil Procedure 26 and 33 to compel production of complaints made by employees of Merkley and Omnicom. The dispute over witness contact information was moot because the corporate defendants were gathering additional contact information to provide to O’Rear’s counsel; the court directed them to provide that information promptly.

Merkley Employee Complaints

Merkley had produced complaints made against its employees during O’Rear’s employment. O’Rear also sought complaints dating back to January 1, 2014. The court held that complaints made by Merkley employees before O’Rear’s employment could be relevant to her claims, but found the requested period too broad.

The court limited the required production to documents concerning sexual harassment and sexual assault complaints made by Merkley employees during the two years before O’Rear’s employment through the end of her employment. It explained that discovery may cover nonprivileged information relevant to a claim or defense, but concluded that a request reaching back to January 1, 2014, was overbroad.

Omnicom Employee Complaints

O’Rear argued that complaints made by Omnicom employees were relevant because Omnicom controlled Merkley, which she described as a wholly owned subsidiary, and provided legal counsel to Merkley. Omnicom argued that O’Rear’s theory concerned only Omnicom’s supervision of Diaz, a Merkley employee, and that complaints from employees of other Omnicom companies were not relevant.

The court agreed with Omnicom. It stated that O’Rear’s claims concerned Omnicom’s supervision of a Merkley employee and that the amended complaint did not make specific allegations about Omnicom companies other than Merkley. The court also found that requiring production of all complaints made by Omnicom employees, particularly over a ten-year period, would be unduly burdensome and overbroad. It therefore denied O’Rear’s motion to compel production concerning Omnicom employees.

Disposition

The court granted in part and denied in part O’Rear’s letter motion to compel production of complaints made to the corporate defendants. It encouraged the parties to meet and confer in good faith about additional discovery issues and directed the clerk to terminate the motion pending at Docket 97.