The opinion
ee NEW YORK, NY 10001
i. EMPLOYMENT LAW FIRM TEL 646.664.1412
WWW.RISSMILLER.COM
Alex Rissmiller The request for a conference is GRANTED. The conference will take
place on September 12, 2023 at 3PM. The conference will be held via
arissmiller@rissmiller.com Microsoft Teams. The parties should dial in by calling (646) 453-4442
and entering the Phone Conference ID: 522 948 85, followed by the
September 6, 2023 pound (#) sign.
BY ECF Defendants may file any response to this motion as a letter, not to □□□□□
three pages, no later than September 11, 2023.
The Honorable Arun Subramanian, U.S.D.J. The Clerk of Court is directed to terminate the motion at ECF No. 33.
United States District Court
Southern District of New York SO ORDERED.
500 Pearl Street bo
New York, New York 10007 Arun Subramanian, U.S.D.J.
Date: September 7, 2023
Re: OQOlohan v. Google LLC et ano.; No. 22-cv-10163-AS
Dear Judge Subramanian:
I represent Plaintiff Ryan Olohan and write to address Defendants’ refusal to search for
and produce documents post-dating Plaintiff’s pre-litigation demand letter. Before seeking the
Court’s intervention, I conferred with Lead Trial Counsel for each Defendant telephonically on
August 25, 2023, at 11:00 am and 1:30 pm, for approximately 30 minutes each, as required by
Your Honor’s Individual Practice 5(B) in a good faith effort to resolve this dispute. The other
participants of those conferences include Aaron Zeisler, Meghan Sullivan, Emily Pidot, and
Matthew Aibel. I have informed those participants that, due to the impasse reached on this issue,
Plaintiff would be requesting a conference with the Court.
Background
Google terminated Mr. Olohan’s employment on August 5, 2022, giving rise to the
majority of claims underlying this employment discrimination action. (ECF 1 {] 65). Mr. Olohan
sent a demand letter to Google on October 20, 2022, and commenced this action on November
30, 2022. Google maintains that the date of the demand letter is the appropriate cut-off date for
their searches for ESI and responsive documents, whereas individual Defendant Tiffany Miller
has agreed to conduct searches through the date the complaint was filed.
Mr. Olohan initially sought responsive documents “through the present” but agreed to
narrow the scope of those requests during the meet-and-confer process, proposing an end date of
April 5, 2023 (eight months following the termination and approximately four months following
the filing of the complaint). Defendants declined that proposal and are unwilling to further
extend the time period for their searches absent the Court’s intervention, necessitating this
request.
Responsive Communications Post-Dating the Complaint Are Discoverable
While Mr. Olohan’s claims are premised on conduct occurring during and prior to the
August 5, 2022 termination of his employment, Defendants’ post-complaint communications
concerning the discrimination, sexual harassment, and retaliation alleged to have occurred pre-
complaint are discoverable. See, e.g., PRCM Advisers LLC v. Two Harbors Inv. Corp., No. 20-
CV-5649, 2022 WL 18027565, at *10 (S.D.N.Y. Dec. 30, 2022) (granting motion to compel in
breach of contract context as “[c]ommon sense suggests that post-termination documents ... may
also include discussions of relevant pre-termination events.”). Insofar as these communications
are responsive to Mr. Olohan’s requests for the production of documents, which the parties have
already extensively negotiated and narrowed based upon relevancy and other objections, they fall
within the broad scope of discovery permitted under Rule 26(b). See Fed. R. Civ. P. 26(b)(1)
(“Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party’s
claim or defense and proportional to the needs of the case …”). It is clear that Defendants’
communications relating to the harassment and termination at issue continued at least through
January 2023. See PRCM Advisers, 2022 WL 18027565, at *10 (crediting “demonstrat[ion] that
at least some post-termination documents are relevant to the parties’ claims and defenses.”). For
example, on January 28, 2023 — two months post-complaint — Defendant Miller issued a
public statement disputing the merits of Mr. Olohan’s claims through a non-attorney
“spokesman.” (Exhibit 1). A Google spokesperson also issued a statement disputing the merits of
Mr. Olohan’s claims around the same time. Id. Non-privileged communications regarding these
statements, and Defendants’ account of the events underlying them, are directly relevant to their
defenses and Mr. Olohan’s claims. As are communications relating to any post-complaint
investigation or disciplinary action concerning Ms. Miller, who defense counsel has represented
remains employed with Google.
Any burden that production of non-privileged, responsive post-complaint
communications would pose for Defendants would be minimal as the parties have already
narrowed and agreed upon categories of responsive documents to be produced and ESI searches
to be run. Further, the parties have agreed that “[c]ommunications involving litigation counsel or
experts retained for the purpose of this litigation that post-date the filing of the first-filed
complaint need not be placed on a privilege log.” See ECF 29 ¶ 6(b)(3)(a)); see also PRCM
Advisers, 2022 WL 18027565, at *10 (“[W]hile some of the otherwise-responsive post-
termination documents may prove to be privileged, any additional burden flowing from that fact
should be limited, because the parties are not required []to include on [] privilege log [pursuant
to] ESI Protocol.”).
Conclusion
For these reasons, Plaintiff respectfully requests a conference with the Court to address
his request for an order compelling Defendants to search for and produce non-privileged,
responsive documents through April 5, 2023, or another post-complaint date the Court deems
appropriate.
Respectfully submitted,
/s/ Alex Rissmiller
Alex Rissmiller
cc: Counsel of record (via ECF)