Olohan v. Google LLC

NM” EmeLovmenT LAW FIRM TEL 646.664.1412

WWW.RISSMILLER.COM

Alex Rissmiller

arissmiller@rissmiller.com

February 26, 2024

BY ECF

The Honorable Arun Subramanian, U.S.D.J.

United States District Court

Southern District of New York

500 Pearl Street

New York, New York 10007

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

Dear Judge Subramanian:

I represent Plaintiff Ryan Olohan and write pursuant to the Court’s Order (ECF No. 70)

to resubmit his request for a conference 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. The parties met and conferred telephonically on

February 16, 2024, at 11:00 am for approximately 45 minutes as required by the Court’s Order

and Your Honor’s Individual Practice 5(B) in a good faith effort to resolve this dispute. The

participants of that conference include the undersigned, Aaron Zeisler, and Meghan Sullivan.

While the parties substantially narrowed the communications at issue, an impasse has been

reached regarding the remaining communications, 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.

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 (privilege log); Exhibit 2 (redactions). They all

pertain to media coverage of this lawsuit and responses to related media inquiries, and post-date

the November 30, 2022 filing of the Complaint. /d.

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 y. 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.”).

The sole authority Defendant previously cited in her opposition (ECF No. 69 at 2),

Haugh v. Schroder Inv. Mgmt. N. Am. Inc., No. 02-CV-7955, 2003 WL 21998674 (S.D.N.Y.

Aug. 25, 2003), is inapposite because the media consultant at issue in Haugh was also a lawyer,

whose retention agreement with the plaintiff included “provid[ing] us advice to assist us in

providing legal services to Ms. Haugh … our communications with you are confidential and

privileged.” Haugh, 2003 WL 21998674, at *3. In her dual role as media consultant and lawyer,

she attended “meetings [] to discuss [Plaintiff]’s claims and to develop a litigation and media

strategy … [and] reviewed materials received from [Plaintiff] not only from the standpoint of

public relations but, most importantly, for impact on litigation strategy.” Id. Moreover, the

communications at issue in Haugh pre-dated the filing of the complaint and were accordingly

found to have been created “in anticipation of litigation,” in contrast to the post-complaint

communications at issue here.

The withheld communications between Ms. Miller and her attorneys (Exhibit 2 at TM-

U_00067, 164, 165), which are part of the same discussions about media inquiries, are similarly

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)).

The attorney-client privilege asserted over defense counsel’s communication with Ms.

Miller’s spouse (Exhibit 2 at TM-U_00021) should also be rejected because he has not been

identified as a client or prospective client, but only as a “spouse” for purposes of the martial

communication privilege. See Exhibit 1. Nor is the communication at issue included in any

description included in the log. Id.; see Universal Standard Inc. v. Target Corp., 331 F.R.D. 80

(S.D.N.Y. 2019) (finding waiver based upon deficient privilege log) (collecting cases).

For these reasons, Plaintiff requests a conference with the Court to seek an order

compelling Ms. Miller to produce unredacted versions 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)

Defendant Tiffany Miller should provide any response to Plaintiffs motion no later than

February 29, 2024 at SPM. In addition, by the same deadline, Miller should email to the 5agdf

unredacted versions of any documents that she is withholding or redaUT Y for in camera review.

SO ORDERED.

Arun Subramanian, U.S.D.J.

Date: February 27, 2024