O'Rear v. Diaz
- Paul Engelmayer
- 1:24-cv-01669
- U.S. District Court · Southern District of New York
- 4
In S. O’Rear v. Armando Diaz, Judge Engelmayer ordered the corporate defendants to respond by February 20 to a discovery request concerning privilege waiver.
S. O’Rear and the corporate defendants involved in the discovery dispute, including Omnicom and Merkley as identified in the letter.
What happened
In S. O’Rear v. Armando Diaz, the plaintiff asked the court to require the corporate defendants to produce documents about their investigation of her internal complaint and their actions involving Diaz. She argued that the defendants had given up attorney-client privilege over those materials by asserting that they reasonably prevented and corrected harassment.
The plaintiff also argued that documents involving human-resources personnel, in-house counsel, outside counsel, and her leave or disability benefits were not protected or should be reviewed privately by the court. The corporate defendants’ response to the request was due February 20, 2025.
Judge Paul Engelmayer ordered the corporate defendants to respond by that date. The order does not decide whether any privilege was waived or whether the requested documents must be produced.
The detailed version
- O'Rear v. Diaz · No. 1:24-cv-01669
- Paul Engelmayer
- Feb. 18, 2025
Nature of the Order
This document is a discovery-dispute letter concerning an alleged waiver of the attorney-client privilege. The court did not decide the privilege issue in this order. It ordered that the corporate defendants’ reply was due February 20, 2025.
Background
Plaintiff S. O’Rear’s counsel told the court that the corporate defendants had asserted a defense under the Faragher-Ellerth doctrine. That defense concerns whether an employer used reasonable care to prevent and promptly correct alleged harassment. Counsel argued that asserting the defense placed the adequacy of the defendants’ internal investigation and remedial actions at issue and waived any privilege covering related documents.
According to the plaintiff’s letter, O’Rear reported an alleged sexual assault by Creative Director Armando Diaz in 2023. The corporate defendants investigated the report and told O’Rear that Diaz was resigning. The letter states that discovery showed Diaz submitted his resignation, which the corporate defendants accepted, and that the defendants later entered into a contract extending his employment for a stated period.
Discovery Request
The plaintiff asked the court to compel production of 37 documents concerning her internal complaint, the investigation, and Diaz’s departure. She also asked for an unredacted version of a July 26, 2023 memorandum to file or, alternatively, for the court to review the disputed documents privately, known as an in-camera review.
The plaintiff argued that communications involving Rebecca Green Lax, the head of human resources, and Cara Milligan, general counsel of an affiliated entity, concerned the factual investigation rather than legal advice. She made similar arguments about communications involving outside counsel Maureen McLoughlin, asserting that McLoughlin participated in overseeing the investigation. The plaintiff also sought documents concerning her leave and short-term disability claims, arguing that the defendants’ handling of those claims was relevant to whether they took remedial action or retaliated against her.
Ruling and Disposition
Judge Paul A. Engelmayer ordered the corporate defendants to submit their reply by February 20, 2025. The order contains no ruling granting or denying the request to compel, no ruling requiring in-camera review, and no determination about attorney-client privilege or the Faragher-Ellerth defense.
Read the full 4-page opinion on CourtListener, the free public archive maintained by the Free Law Project.