O'Rear v. Diaz
- Paul Engelmayer
- 1:24-cv-01669
- U.S. District Court · Southern District of New York
- 2
In O’Rear v. Diaz, Judge Engelmayer denied O’Rear’s request for privileged documents, finding no basis to override corporate defendants’ privilege during discovery.
Plaintiff S. O’Rear and corporate defendants Merkley+Partners and Omnicom Group Inc.; the order governed whether the corporate defendants had to produce disputed documents during discovery.
What happened
In O’Rear v. Diaz, O’Rear’s lawyer asked the court to require Merkley+Partners and Omnicom Group Inc. to produce documents they had withheld as privileged. The documents arose during discovery in O’Rear’s sexual-harassment claims under federal and New York City law.
O’Rear argued that the documents could be relevant to the companies’ defense and that relying on that defense waived their privilege. The companies said the documents concerned an investigation into a separate alleged sexual assault, O’Rear’s possible disability and workers’ compensation benefits, and communications about her claims and threatened litigation.
The court denied O’Rear’s request because the privilege log made the documents appear privileged and O’Rear had no non-speculative basis to show they concerned the defense at issue. O’Rear may still question Merkley about its investigation during the remaining fact discovery period. Judge Paul A. Engelmayer issued the order.
The detailed version
- O'Rear v. Diaz · No. 1:24-cv-01669
- Paul Engelmayer
- Feb. 26, 2025
Background
The court considered a letter from counsel for plaintiff S. O’Rear challenging defendants Merkley+Partners and Omnicom Group Inc.’s withholding of documents as privileged. The dispute arose during discovery in O’Rear’s claims of sexual harassment under Title VII and the New York City Human Rights Law.
The opinion states that the documents were facially privileged based on the descriptions in the companies’ privilege log. The companies represented that the documents concerned three subjects: Merkley’s investigation into an alleged sexual assault upon O’Rear, which the court described as distinct from the sexual-harassment claims and for which it had dismissed O’Rear’s corporate-liability claim; O’Rear’s application or eligibility for short-term-disability and workers’ compensation benefits; and general communications about O’Rear’s claims and threatened litigation after the companies received her demand letter.
Arguments
O’Rear did not argue that the documents were not privileged on their face. Instead, she argued that the documents might be relevant to the companies’ Faragher/Ellerth defense to her sexual-harassment claims and that stating that defense waived the privilege. A Faragher/Ellerth defense generally concerns an employer’s response to workplace harassment and the circumstances affecting potential employer liability; the opinion refers to the defense but does not further explain its elements.
The court found that argument factually unsupported. It accepted the companies’ representations about the subjects of the documents and stated that it had no reason to discredit them. The dates of the withheld documents also did not suggest that they concerned the defense. The court noted that O’Rear remained free to question Merkley about its investigation during the remaining period for fact discovery.
Ruling
The court denied O’Rear’s demand for production of the documents. It held that, without a non-speculative basis to show that the documents bore on the companies’ Faragher/Ellerth defense, there was no basis to override the claimed privilege. The order did not require production of the documents and did not state that the discovery dispute was dismissed with or without prejudice. Judge Paul A. Engelmayer signed the order on February 26, 2025.
Read the full 2-page opinion on CourtListener, the free public archive maintained by the Free Law Project.