Opinion
19 Civ. 5503 (VB) (PED)
12-23-2020
VICTORIA MALONE, Plaintiff, v. TOWN OF CLARKSTOWN, ET AL., Defendants.
MEMORANDUM AND ORDER PAUL E. DAVISON, U.S.M.J.:
By letter-motion dated November 25, 2020, defendant Town of Clarkstown seeks a protective Order with regard to two documents, which appear as ## 55 and 61 on the Town's privilege log. [Dkts. 137-39.] Plaintiff opposes. [Dkt. 141.] The Town has provided copies of the two contested documents to the Court for in camera review. Familiarity with the record is assumed. Having reviewed the documents and considered the arguments of counsel, the Town' motion is DENIED.
The Town's Twelfth, Thirteenth, and Fourteenth Affirmative Defenses as set forth in the Town's answer to the amended complaint unmistakably invoke the Farragher/Ellerth defense. [Dkt. 85, p. 10.] That defense allows an employer to escape liability if it can show (1) the employer exercised reasonable care to prevent and correct any-harassing behavior and (2) that the plaintiff unreasonably failed to take advantage of the preventative or corrective opportunities that the employer provided. Vance v. Ball State University, 570 U.S. 421, 423, 133 S. Ct. 2434, 186 L. Ed. 2d 565 (2013). Because the Farragher/Ellerth defense puts the reasonableness of the employer's investigation at issue, the employer invoking the defense "waives any privilege that might otherwise apply to documents concerning that investigation." Barbini v. First Niagara Bank, N.A., 331 F.R.D. 454, 460 (S.D.N.Y. 2019)(citation omitted).
Both Document # 55 (draft report) and Document # 61 (attorney notes) plainly relate to the Town's investigation of plaintiff's complaints of discrimination. Notably, Document # 55 is a draft of a document the final version of which the Town has voluntarily disclosed to plaintiff in discovery. Although both documents are privileged in the first instance, I find that the Town has waived its privilege for the reasons set forth above.
Motion DENIED. The Clerk shall terminate Dkt. 137. Dated: December 23, 2020
White Plains, New York
SO ORDERED
/s/_________
Paul E. Davison, U.S.M.J.