In a recent case, O’Rear v. Diaz, 24 Civ. 1669 (PAE), 2024 WL 4903722 (S.D.N.Y. Nov. 27, 2024), the court addressed an issue arising in a number of employment discrimination/sexual harassment cases, namely, the production of sexual harassment and sexual assault complaints by employees other than the plaintiff.
From the decision:
Plaintiff S. O’Rear sues her employer, Merkley, Merkley’s parent company, Omnicom, and Merkley’s creative director, Armando Diaz, alleging that Diaz sexually assaulted and raped her after a holiday happy hour. She brings claims of sexual harassment and negligent supervision under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq., and related claims under New York state and city law.
At issue presently are sexual harassment and sexual assault complaints made by Merkley and Omnicom employees, whose production O’Rear moves to compel under Federal Rules of Civil Procedure 26 and 33. Dkt. 97 (“Pl. Letter”). First, Merkley has produced complaints made against its employees during O’Rear’s employment; O’Rear seeks complaints predating her employment, beginning in January 1, 2014. Pl. Letter at 2. Second, O’Rear seeks complaints made by Omnicom employees from January 1, 2014 to the present, Pl. Letter at 3; Omnicom resists producing any such documents, representing that O’Rear’s claims at most establish an “alter ego” theory of liability, and thus complaints made by Omnicom employees, much less for the past ten years, are not relevant to her allegations, Corp. Def. Opp. at 3.
In general, a party “may obtain discovery regarding any nonprivileged matter that is relevant to any party’s claim or defense[.]” Fed. R. Civ. P. 26(b)(1). Courts broadly construe relevant to “encompass any matter that bears on, or that reasonably could lead to other matters that could bear on, any issue that is or may be in the case.” Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 351 (1978). The party seeking discovery bears the burden of demonstrating its relevance. Trilegiant Corp. v. Sitel Corp., 272 F.R.D. 360, 363 (S.D.N.Y. 2010). Upon a showing of relevance, the responding party bears the burden to justify curtailing or limiting the discovery. Id.
Merkley Employees: It is undisputed that sexual harassment and sexual assault complaints made by Merkley employees are relevant to O’Rear’s claims in this litigation. PL Letter at 2. Merkley contends that producing its employees’ complaints made during O’Rear’s employment satisfies Rule 26, and that complaints predating her employment are irrelevant and overly broad. Corp. Def. Opp. at 2–3. Merkley argues that O’Rear has not asserted a “disparate impact” claim or “identified a single female, other than herself, whom was allegedly sexually harassed by Diaz or anyone else,” and thus her “failure to allege particularized facts describing the conditions surrounding other women causes her requests for discovery … to be unreasonable.” Id. at 2.
On this issue, the Court agrees with O’Rear that complaints predating her employment could prove relevant to her claims, but limits the time frame of such documents to the two years before her employment through its end. Courts have often found limiting the production of materials to the two years preceding the start of the plaintiff’s employment, particularly in Title VII cases, to be appropriate. See, e.g., Ri Sau Kuen Chan v. NYU Downtown Hosp., No. 3 Civ. 3003, 2004 WL 1886009, at *6 (S.D.N.Y. Aug. 23, 2004) (limiting Title VII plaintiff’s discovery request to the two years preceding plaintiff’s claims); Bujnicki v. American Paving & Excavating Inc., 2004 WL 1071736 (W.D.N.Y. Feb. 25, 2004) (same). Rule 26 squarely permits production of complaints made by Merkley employees, which are undeniably relevant to O’Rear’s claims. However, O’Rear’s request for documents dating back to January 1, 2014 is not “reasonably calculated to lead to the discovery of admissible evidence,” and is thus overbroad. E.E.O.C. v. Beauty Enterprises, Inc., No. 3:01 Civ. 378, 2008 WL 3359252, at *1 (D. Conn. Aug. 8, 2008) (citing Daval Steel Prods. v. M/V Fakredine, 951 F.2d 1357, 1367 (2d Cir. 1991)).
Based on this, the court ordered production to plaintiff of “documents related to sexual harassment and sexual assault complaints made by Merkley employees, from the two years predating her employment through the end of her employment.”