As the Erin Johnson lawsuit against J. Walter Thompson, WPP and former CEO Gustavo Martinez inches its way to trial, the legal teams are butting heads over the admissibility of sensitive documents.
In documents filed with the US Southern District Court on Wednesday, lawyers for WPP and JWT requested a protective order to stop Johnson, JWT’s Chief Communications Officer, from subpoenaing documents pertaining to the internal investigation conducted by Bettina Plevan, a partner at law firm Proskauer Rose, in the weeks after Johnson filed her sexual harassment lawsuit. Howard J. Rubin, partner at WPP legal firm Davis & Gilbert, claims that the report, which details the substance of Plevan’s interviews with 32 current and former agency employees, is protected by attorney-client privilege.
The defense is also seeking a protective order to block access to documents related to a report prepared by Merrick Rossein, an employment law professor and human resources consultant who provided equal-employment training to Martinez and counsel to the agency’s legal team after the suit was filed, including advice about the retention of Martinez in an executive position elsewhere at the holding company.
Reports summarizing the findings were shared with Johnson and the legal team from Vladeck, Raskin & Clark "subject to an agreement that Plaintiff would treat the reports as confidential," writes Rubin.
The defense is also arguing that Johnson should be compelled to turn over documents "relating to her efforts to seek alternative employment, including at another advertising agency, TBWA Worldwide."
It was earlier revealed that Johnson had been offered a job at Omnicom’s TBWA\Chiat\Day before filing her suit, but turned it down, telling Martinez in a text that she was "loyal" to him and "felt like we had a good year together." The defense lawyers argue that any documents related to that job offer are relevant "to whether she believed she was experiencing harassment and/or retaliatory treatment," and whether her working environment at JWT was "as hostile or retaliatory as she claims."
Asked whether the agency had been contacted by attorneys regarding the case, a TBWA spokeswoman said, "We haven't received the subpoena yet and can't comment."
The flurry of memos filed Wednesday also included a request from the defense lawyers for a 60-day extention of the discovery deadline, citing Johnson’s "voluminous and burdensome discovery requests." Johnson’s legal team has subpoenaed Plevan and Rossein for all documents related to the case, including communications that concern Martinez’s "ability to use the English language," a defense lawyers for Martinez and WPP have used to explain Johnson’s claims that Martinez regularly made comments about rape and sex, using terms like "talk about the sex" and "sex of angels."
The plaintiffs are also attempting to subpoena all documents about behavior and statements Martinez made "with respect to women or their appearance," "Jews or Westchester County," "people of color," the Miami corporate meeting where Martinez was recorded making a rape joke, and female employees like global president Claire Capeci, who Martinez, claim Johnson’s lawyers, said was "bossy" and should be "hogtied" or "raped."
The legal teams met last month with Magistrate Judge James C. Francis to discuss discovery but were unsuccessful in attempts to reach an agreement.
Also under contention is the subpoena of Johnson’s medical records. Lawyers for the defense have requested authorization to subpoena her mental health records, which Johnson lawyers have declined to provide.
Earlier this week, Martinez’s lawyer Ricki Roer filed a letter to the court requesting to address "a defendant’s entitlement to discovery of plaintiff’s psychological/mental health records, even when only ‘garden variety’ emotional distress damages are claimed."
At the conference on April 26, states Roer in the letter, Johnson "for the first time stipulated" that she would be "claiming ‘only garden variety’ emotional damages." The judge approved the team's request to file a motion.
Calls to representatives for WPP and Johnson for comment were not immediately returned.
The current deadline for discovery is May 26.