“Generally, ‘public relations advice, even if it bears on anticipated litigation, falls outside the ambit’ of the work product doctrine.”
How later courts described this case
- “Generally, ‘public relations advice, even if it bears on anticipated litigation, falls outside the ambit’ of the work product doctrine.”
- holding that communication “concern[ing] media and business matters … must be disclosed”
Written by the judges who cited it.
The opinion
ee NEW YORK, NY 10001
i. EMPLOYMENT LAW FIRM TEL 646.664.1412
WWW.RISSMILLER.COM
Alex Rissmiller Plaintiff's application is DENIED for failure to meet and
arissmiller@rissmiller.com confer in good faith. The parties should meet and confer in
earnest, pursuant to the Court's Individual Practices. If an
impasse is reached, Plaintiff may resubmit his letter motion,
February 9, 2024 hopefully on a substantially narrowed set of documents.
BY ECF The Clerk of Court is directed to terminate the motion at
ECF No. 65.
The Honorable Arun Subramanian, U.S.D.J.
United States District Court SO ORDERED.
Southern District of New York
500 Pearl Street /
New York, New York 10007
Arun Subramanian, U.S.D.J.
Date: February 14, 2024
Re: OQOlohan v. Google LLC et ano.; No. 22-cv-10163-AS
Dear Judge Subramanian:
I represent Plaintiff Ryan Olohan and write to request a conference with the Court
seeking an order compelling Defendant Tiffany Miller to produce portions of communications
with her media consultants, husband, and attorneys concerning media coverage of this lawsuit,
which have been redacted on the basis of attorney work product and attorney client privilege.
Before seeking the Court’s intervention, I conferred with defense counsel telephonically on
multiple occasions concerning the redactions and claims of privilege at issue, including for
approximately 30 minutes on December 13, 2023, 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 and Meghan Sullivan. Since those conferences, Defendant has
re-produced the communications. The vast majority of the redactions at issue remain, however,
necessitating this motion. I have informed defense counsel that, due to the impasse reached on
this issue, Plaintiff would be requesting a conference with the Court.
This dispute was also raised on the record during the January 19, 2024 Conference before
the Court, during which the Court ordered that Plaintiff was required to produce portions of
attorney communications with third-party affiants he had asserted attorney work product
privilege over, including draft affidavits. See ECF No. 46.
The communications being withheld involve Evan Siegfried and Andrea Calise, who
Defendant has identified as her media consultants, Defendant’s spouse, and lawyers, Aaron
Zeisler and Meghan Sullivan. See Exhibit 1. They all post-date the November 30, 2022 filing of
the Complaint. Jd. The redactions — which span hundreds of pages of Defendant’s production
— pertain to media coverage of this lawsuit and responses to related media inquiries. See
representative sample attached as Exhibit 2.'
' A compilation of all redactions at issue is also available for the Court’s consideration to the extent relevant to its
determination.
Most of the redacted communications are between Ms. Miller and her media consultants,
merely copying her attorneys. See, e.g., Exhibit 2 at TM-U_00164-167. But “it is well-
established that merely copying a lawyer on a communication does not render it privileged.”
Hayden v. Int'l Bus. Machs. Corp., No. 21-CV-2485, 2023 WL 4622914, at *8 (S.D.N.Y. July
14, 2023) (citing In re Signet Jewelers Ltd. Sec. Litig., 332 F.R.D. 131, 136 (S.D.N.Y. 2019),
aff'd, 2019 WL 5558081 (S.D.N.Y. Oct. 23, 2019)). And because the unredacted portions of the
documents demonstrate that the communications at issue pertain to responding to media
inquiries, they are not privileged as attorney work product. See Gucci Am., Inc. v. Guess?, Inc.,
271 F.R.D. 58, 78 (S.D.N.Y. 2010) (“Generally, ‘public relations advice, even if it bears on
anticipated litigation, falls outside the ambit’ of the work product doctrine.”) (quoting Calvin
Klein Trademark Trust v. Wachner, 198 F.R.D. 53, 55 (S.D.N.Y. 2000)); see also Rivastigmine
Patent Litig., 237 F.R.D. 69, 75 (S.D.N.Y. 2006) (holding that communication “concern[ing]
media and business matters … must be disclosed”) (citing Burroughs Wellcome Co. v. Barr
Laboratories, Inc., 143 F.R.D. 611, 619 (E.D.N.C.1992) (“[H]andling publicity and dealing with
the media are typically business concerns.”).
For the same reason, the withheld communications between Ms. Miller and her attorneys,
which are part of the same discussions about media inquiries, are not protected from disclosure
under the attorney client privilege. See United States v. Klein, No. 16-CR-442, at *6 (E.D.N.Y.
Feb. 28, 2017) (“The Court recognizes this proposition as axiomatic: the attorney-client privilege
extends only to communications that have the purpose of providing or obtaining legal advice and
does not bar disclosure of a document simply because it is a communication involving an
attorney.”). There is no indication that any of the communications relate to seeking or providing
legal advice. Given the disclosure of the materials to the media consultants and, in certain
instances, Ms. Miller’s spouse, attorney client privilege would in any event be waived. See Rekor
Sys. v. Loughlin, No. 19-CV-7767, at *3 (S.D.N.Y. Feb. 10, 2023) (“It is well-established that
voluntary disclosure of confidential material to a third party waives any applicable attorney-
client privilege.”) (quoting Schanfield v. Sojitz Corp. of America, 258 F.R.D. 211, 214 (S.D.N.Y.
2009)).
For these reasons, Plaintiff requests a conference with the Court to seek an order
compelling Ms. Miller to produce unredacted version of the communications at issue and any
further relief that the Court deems appropriate.
Respectfully submitted,
/s/ Alex Rissmiller
Alex Rissmiller
cc: Counsel of record (via ECF)