The opinion
USDC SDNY
DOCUMENT
UNITED STATES DISTRICT COURT ELECTRONICALLY FILED
SOUTHERN DISTRICT OF NEW YORK I a at
DATE FILED:_ 9/29/2023
ULKU ROWE,
Plaintiff, 19 Civ. 08655 (JHR)
ver ORDER
GOOGLE LLC,
Defendant.
JENNIFER H. REARDEN, District Judge:
WHEREAS, on September 18, 2023, the parties filed a Second Amended Joint Pretrial
Order, identifying, inter alia, the witnesses whom they respectively anticipate calling at trial,
ECF No. 310 (““SAJPTO”);
WHEREAS, Plaintiff anticipates calling Thomas Kurian as a witness regarding “[h]is
knowledge of the lawsuit as indicated in Exhibit P83,” SAJPTO at 5;
WHEREAS, Exhibit P83 consists of internal Google emails dated September 18 and 19,
2019, the content of which, Plaintiff argues, “demonstrates corporate knowledge at the highest
level .... as to Ms. Rowe’s [September 17, 2019] complaint,” Sept. 21, 2023 Tr. 29:6-9, 11-12;
WHEREAS, Defendant objects to the identification of Mr. Kurian as a witness, and seeks
to exclude his testimony under Federal Rules of Evidence 401 and 403, SAJPTO at 6;
It is hereby ORDERED that Defendant’s application is denied. Plaintiffs case 1s
premised in part on claims that Defendant retaliated against her for filing the instant action. See,
e.g., ECF No. 108 §/ 48-61. To prove retaliation, Plaintiff must establish, inter alia, that
Defendant “was aware” that she engaged in a protected activity. McHenry v. Fox News Network,
LLC, 510 F. Supp. 3d 51, 67 (S.D.N.Y. 2020). Accordingly, testimony regarding Defendant’s
knowledge of the filing of this lawsuit is relevant. See Fed. R. Evid. 401. Absent a stipulation
establishing that knowledge as of September 2019, Mr. Kurian’s testimony will be permitted.
Any examination of Mr. Kurian shall be limited. Specifically, he may only be questioned
regarding “his knowledge of the lawsuit as indicated in Exhibit P83.” SAJPTO at 5. Within
those parameters, the probative value of Mr. Kurian’s testimony 1s not “substantially outweighed
by a danger of unfair prejudice, confusing the issues, undue delay, wasting time, or needlessly
presenting cumulative evidence.” Fed. R. Evid. 403.
SO ORDERED.
Dated: September 29, 2023
New York, New York
\
Rh Fearon
JE ER H. REARDEN
United States District Judge