Ex-Zara GC Says Subpoenas Too Broad in $40M Bias Suit

Posted January 21st, 2016.

As It Appeared On
law360

By Aaron Vehling

Law360, New York (January 21, 2016, 6:01 PM ET) — A former general counsel for clothing giant Zara, in his $40 million New York state court bias suit against the company, has accused the retailer of continuing its harassment of him by requesting overly expansive email communications between him and his long-term partner.

Ian Jack Miller, who sued Zara USA Inc. in June, alleging he faced widespread bias and harassment for being gay and Jewish, on Tuesday asked the court to kill a subpoena requesting all emails on any subject between him and his long-term partner from 2008 to present from the server of his partner’s employer, Continental Grain Co.

“Defendants are using this overbroad, intrusive, and harassing subpoena to continue the very same campaign of harassment to which they subjected plaintiff when he was their employee,” Miller says, requesting a protective order on more than 9,000 requested emails.

Many of the emails that Zara requests are personal and intimate and beyond the scope of an employment suit, Miller says. Some emails could also be considered protected by attorney-client privilege or the work-product doctrine, he adds.

“Disclosure would serve to harass and embarrass plaintiff, including by targeting his life partner of more than 21 years at his place of work,” the filing says.

All in all, there were three filings, two from Miller and one from Continental Grain, that variously asked for a protective order and to kill the subpoena.

The case dates back to June, when Miller sued Zara and claimed that he endured widespread discrimination. Executives at the company sent Miller emails containing images of penises and used Yiddish words such as “oy” and “schlep” after learning that he was gay and Jewish, Miller said in his complaint.

Miller complained to top executives several times about the treatment, who told him on March 2 that his job was in jeopardy. After Miller’s attorneys sent a letter to the company on March 4 notifying them of their alleged violations of human rights and labor laws for New York City and for New York state, Zara terminated him the following day.

The parties have since fought over whether one of Miller’s claims of retaliation stemming from that labor-law violation should be nixed because Miller was bound by attorney-client privilege as general counsel to Zara.

The parties have since fought over whether one of Miller’s claims of retaliation stemming from that labor-law violation should be nixed because Miller was bound by attorney-client privilege as general counsel to Zara.

On Tuesday, Judge Michael Katz granted Zara’s request to nix the claim.

Miller attorney Alexandra Harwin of Sanford Heisler Kimpel LLP told Law360 Thursday that her client is looking forward to moving ahead with the case on all of the remaining counts, such as the discrimination, harassment and other retaliation claims.

“Right now we’re in the process of discovery and are looking forward to preparing this case for trial,” Harwin said.

A Zara spokesman said Thursday that the company is pleased the court dismissed a claim that couldn’t be pursued without violating his ethical obligations and the attorney-client privilege.

“As we have repeatedly said, Zara USA vehemently denies Mr. Miller’s allegations, and we will continue to defend ourselves against the remaining meritless claims in due course,” the spokesman said. “Zara USA is a diverse and multicultural company that has employees and customers of many different nationalities, orientations, cultures, languages and beliefs — we do not tolerate any form of discrimination.”

Meanwhile, Zara has eyed Miller’s partner’s emails as part of discovery, and after some discussions between the parties the company did trim its request a bit, according to Miller’s motion Tuesday.

However, Zara attorneys indicated that the company seeks information to shed light on such matters as Miller’s “true thoughts about religion, national origin, sexual orientation and sexual matters,” Miller’s filing says.

Allowing such discovery would have a negative impact on the broader employment discrimination litigation landscape, creating a chilling effect, Miller says.

A Zara spokesman declined to comment on the discovery issue.

Miller is represented by David Sanford, Jeremy Heisler, Alexandra Harwin and David Tracey of Sanford Heisler Kimpel LLP.

Zara is represented by David S. Warner, Nancy E. Pritikin and Joseph E. Field of Littler Mendelson PC.

The case is Miller v. Zara USA Inc. et al., case number 155512-2015, in the Supreme Court of the State of New York.

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