O'Rear v. Diaz

Background

The corporate defendants, Merkley+Partners, Inc. and Omnicom Group Inc., asked the court to address discovery involving Shayna Riggins, a former Merkley employee who was not represented by a lawyer. Riggins signed an affidavit on December 7, 2024, and the plaintiff produced it to defendants on January 7, 2025. The affidavit concerned alleged inappropriate comments by Diaz.

The corporate defendants deposed Riggins on February 25, 2025. According to their filing, plaintiff’s counsel, Joshua Bernstein, objected when Riggins was asked to produce emails and draft affidavits exchanged with him and instructed her not to answer questions about their conversations. The filing states that Bernstein invoked attorney work-product protection. The work-product doctrine generally protects certain materials prepared for litigation.

Requested discovery relief

The corporate defendants asked the court to:

- require Bernstein to produce documents in his possession, including communications and draft affidavits exchanged with Riggins; - allow Riggins to produce documents in her possession that Bernstein had instructed her not to produce; - allow questioning of Riggins about the communications, drafts, and telephone conversations with Bernstein; and - assign court-reporting costs and attorney time associated with continuing Riggins’s deposition.

The corporate defendants argued that the communications were not protected because some occurred after Riggins signed the affidavit, concerned logistics, or did not qualify as litigation-preparation materials. They also argued that any protection had been waived because the affidavit was produced, the communications were disclosed late, the plaintiff’s response to a document request did not assert privilege, and no privilege log had been provided earlier. A privilege log is a list identifying withheld materials and the basis for withholding them.

The filing further asserted that Riggins did not share a common legal interest with the plaintiff, Bernstein was not her attorney, and she had no confidentiality agreement with Bernstein. The corporate defendants argued that they had a substantial need to examine the communications because Riggins testified that her conversation with Bernstein and her reflections on her career prompted statements in the affidavit, despite her earlier statement to Merkley’s human-resources director that she could not recall Diaz making inappropriate comments about women.

Court action

The document ends with an order that the plaintiff’s reply was due March 7, 2025. The provided text does not contain an express ruling granting, denying, or otherwise disposing of the corporate defendants’ discovery requests. Judge Paul A. Engelmayer’s final disposition on those requests therefore cannot be determined from this text alone.