Olohan v. Google LLC

a gS 2 □□□ lUcaecrelUl eee eC es Ree ee” NEW YORK, NY 10001

i. EMPLOYMENT LAW FIRM TEL 646.664.1412

WWW.RISSMILLER.COM

. . As stated at the February 1, 2024 conference, Mr. Olohan’s motion to compel is DENI

Alex Rissmiller cases like McGowan v. JPMorgan Chase Bank, N.A., 2020 WL 1974109 (S.D.N.Y. Apr. 24,

arissmiller@rissmiller com explain, internal investigations done at the direction of counsel in response to a threat of liti

. are privileged. Here, the investigation was in anticipation of litigation: Mr. Olohan was fit

August 5, 2022; his counsel sent a demand letter and draft complaint to Google on Octok

2022; and on November 18, 2022, Google’s counsel directed HR personnel to investigat

January 25, 2024 allegations about Ms. Miller. Mr. Olohan has not identified any other behavior that

waive privilege in this case—Google has not produced any of these documents to Ms.

BY ECF during discovery and Google is not relying the investigation in its defense.

The Court also will not compel additional ES! searches. Even if these searches might pr

: material that is not privileged, Mr. Olohan’s request is untimely. Google produced the Marct

The Honorable Arun Subramanian, US.D.J. written warning in September 2023 and Google identified the individuals involved i

United States District Court investigation as early as October 2023. But Mr. Olohan's counsel is free to take the dep

: : of any of the individuals involved in the investigation.

Southern District of New York

500 Pearl Street In addition, Mr. Olohan should respond to Ms. Miller's motion (Dkt. 58) no later than February

2024.

New York, New York 10007

The Clerk of Court is directed to terminate the motion at Dkt. 50.

Re: Olohan v. Google LLC et ano.; No. 22-cv-10163-AS °°

Dear Judge Subramanian: □

Arun Subramanian, U.S.D.J.

Date: February 1, 2024

I represent Plaintiff Ryan Olohan and write to request a conference with the Court

seeking an order compelling Google to produce documents, conduct ESI searches, and designate

a 30(b)(6) witness regarding its workplace investigation of individual Defendant Tiffany Miller.

efore seeking the Court’s intervention, I conferred with defense counsel telephonically for

Bef king the Court’s int tion, I conferred with def 1 teleph lly f

approximately 45 minutes at 11:30 am on January 11, 2024, and for approximately 30 minutes at

12:00 pm on January 25, 2024, 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 Sara

Tomezsko 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

In this employment discrimination action, Mr. Olohan brings claims for sexual

harassment against Ms. Miller, which include groping and sexually suggestive comments at

Google events. See ECF No. 1 {J 25-30, 44, 49-51. In March 2023, Google concluded its

investigation into Ms. Miller’s conduct, finding that, separate from any interaction with Mr.

Olohan, she had “made inappropriate comments about several junior male team members’

appearances” and “put[] [her] head on the shoulder of a junior team member and invited him to

[her] hotel room,” but only issued her a written warning. See Exhibit 1. Although those incidents

occurred in 2017 and 2021, another former Google employee has come forward confirming that

Ms. Miller’s inappropriate touching of junior team members and sexually suggestive comments

at Google date back over a decade. Ms. Miller remains employed by Google.

Google’s Privilege Claim Over Investigation Documents and ESI

Although Google has produced the concluding document of its investigative process, the

written warning referenced above, it continues to withhold 32 investigation documents and has

redacted numerous additional documents on the basis of attorney client and work product

privilege. See Exhibit 2. Google contends that because the investigation was initiated “at the

request” of its in-house counsel, all resulting documents constitute attorney work product. But a

lawyer’s initiation of an investigation is not sufficient to confer work product protection over all

resulting documents — the documents at issue must have been “prepared in anticipation of

litigation or for trial.” Fed. R. Civ. P. 26(b)(3)(A); see also In re Symbol Techs., Inc. Sec. Litig.,

No. 05-CV-3923, 2017 WL 1233842 (E.D.N.Y. Mar. 31, 2017) (“[T]he doctrine is not satisfied

merely by a showing that the material was prepared at the behest of a lawyer or was provided to

a lawyer. Rather the materials must result from the conduct of ‘investigative or analytical tasks to

aid counsel in preparing for litigation.’”) (quoting Wultz v. Bank of China Ltd., 304 F.R.D. 384,

393-94 (S.D.N.Y. 2015)).

The party asserting the work-product privilege “bears the heavy burden of establishing its

applicability.” In re Grand Jury Subpoena Dated July 6, 2005, 510 F.3d 180, 183 (2d Cir. 2007).

Google has not met this burden because it has not established that its investigation was

conducted for the purpose of obtaining legal advice, as opposed to business purposes such as

making personnel decisions, which is suggested by employee relations’ conducting the

investigation and the resulting warning document. Many of the withheld communications do not

involve any lawyer and were disclosed to Ms. Miller, waiving any purported work product

protection. See Exhibit 2 at 2-9, 11. Ms. Miller has not, however, produced any investigation-

related documents beyond the written warning.

Barring privilege, investigation documents pertaining to other sexual harassment

allegations against Ms. Miller are discoverable. See Leibovitz v. New York City Transit

Authority, 252 F.3d 179, 190 (2d Cir. 2001) (“[W]e recognize that evidence of harassment

directed at other co-workers can be relevant to an employee’s own claim of hostile work

environment discrimination.”). Withholding those documents — including the names of the

victims and the harassment alleged — prevents Mr. Olohan from obtaining related evidence

corroborating of his own sexual harassment claims. See Babbitt v. Koeppel Nissan, Inc., No. 18-

CV-5242, 2019 WL 3296984, at *7 (E.D.N.Y. July 23, 2019) (ordering that “defendants disclose

the names of the individuals interviewed for the investigation, ‘[t]o ensure that Plaintiff will have

full access to the facts underlying this action.’”) (quoting Robinson v. Time Warner, Inc., 187

F.R.D. 144, 148 (S.D.N.Y. 1999)). Mr. Olohan thus has a “substantial need for the materials”

and, as contemplated by Fed. R. Civ. P. 26(b)(3)(A), “cannot, without undue hardship, obtain

their substantial equivalent by other means.” As the investigation documents are likely to reflect

when Google learned of the harassment and any remedial steps it took, they are “crucial to the

determination of whether the defendant could be held liable for the acts alleged, or carr[y] great

probative value on contested issues.” Gucci Am., Inc. v. Guess?, Inc., 271 F.R.D. 58, 74-

75 (S.D.N.Y. 2010). Because the other claims of harassment mirror Mr. Olohan’s, the

investigation documents also hold substantial probative value as to his own harassment claims

and are therefore discoverable.

Were the investigation documents privileged as attorney work product, Google

nevertheless waived that privilege by asserting a Faragher/Ellerth defense in its Answer. See

Gorzynski v. JetBlue Airways Corp., 596 F.3d 93, 103 (2d Cir. 2010) ([The Faragher/Ellerth]

“defense consists of two elements: that (1) the employer exercised reasonable care to prevent and

correct promptly any discriminatory harassing behavior, and (2) the plaintiff employee

unreasonably failed to take advantage of any preventative or corrective opportunities provided by

the employer or to avoid harm otherwise.”); see also ECF No. 13 at 11 (asserting in tenth

affirmative defense that “Google exercised reasonable care to prevent and correct promptly

harassing behavior, if any, and Plaintiff unreasonably failed to take advantage of the preventative

or corrective opportunities …”). By asserting this defense, Google has “placed the

reasonableness of their investigation directly in issue, and [is] therefore obligated to turn over

‘any document or communication considered, prepared, reviewed, or relied on by in creating or

issuing the [investigatory report].’” Williams v. Fire Sprinkler Assocs. Inc., No. 15-CV-3147,

2017 WL 1155771, at *11 (E.D.N.Y. Mar. 27, 2017) (quoting Angelone v. Xerox Corp., No. 09-

CV-6019, 2011 WL 4473534, at *2 (W.D.N.Y. Sept. 26, 2011)). Given the waiver of work

product privilege, the Court should order that the investigation documents be produced. See

Malone v. Town of Clarkstown, No. 19-CV-5503, (S.D.N.Y. Dec. 23, 2020) (holding that

investigation documents be produced following in camera review because employer’s

Farragher/Ellerth defense placed reasonableness of the employer’s investigation at issue).

In response to Mr. Olohan’s document requests pertaining to the investigation, Google

agreed only to produce “responsive ESI pursuant to the parties agreed upon search terms.”

Exhibit 3. Because those search terms were agreed upon before Defendants disclosed the

existence of the investigation into Ms. Miller, however, they did not include relevant custodians.

Plaintiff has therefore requested that Google conduct additional ESI searches with the custodians

Google has since identified through interrogatory responses as having knowledge concerning the

investigation, using name search terms (Tiff*, Miller, TM) to be further narrowed as appropriate

after seeing an initial “hit” report and confined to the limited investigation time frame. Google

has declined at this time to conduct additional ESI searches and will not designate a 30(b)(6)

witness to testify regarding the investigation or conduct investigation-related ESI searches on the

same privilege grounds.

Conclusion

For these reasons, Plaintiff requests a conference with the Court to address his request for

an order compelling Google to (i) produce the investigation documents and previously redacted

portions of documents pertaining to the investigation, (ii) submit the investigation documents for

the Court’s in camera review of the purported attorney work product to the extent it finds that

privilege has not been waived, (iii) conduct ESI searches pertaining to the investigation, (iv)

designate a 30(b)(6) witness to testify on its behalf regarding the investigation, and (v) any

further relief that the Court deems appropriate.

Respectfully submitted,

/s/ Alex Rissmiller

Alex Rissmiller

cc: Counsel of record (via ECF)