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IN THE SUMMIT COUNTY COURT OF COMMON PLEAS, OHIO
GENERAL DIVISION
KIMBERLY KLEPS, :
:
Plaintiff, : Case No. CV-2021-09-2905
:
v. : Judge Kathryn Michael
:
ASTRAZENECA PHARMACEUTICALS : Magistrate Judge Voorhees
LP, et al., :
:
Defendants. :
DEFENDANTS’ MEMORANDUM IN OPPOSITION TO PLAINTIFF’S
MOTION TO COMPEL DISCOVERY
Defendants AstraZeneca Pharmaceuticals, LP (“AstraZeneca”) and Michael Ross
(collectively, “Defendants”), by and through counsel, respectfully oppose Plaintiff’s Motion to
Compel Discovery (“Plaintiff’s Motion”). Contrary to Plaintiff’s claims in her Motion, Defendants
have complied, and will continue to comply, in good faith with their discovery obligations and
with the parties’ agreement and timeline for proceeding with discovery as established during the
in-person conference on August 18, 2022. Moreover, Plaintiff’s Motion was filed 18 days before
the September 20, 2022 deadline for production of supplemental records that the parties had agreed
upon during the August 18, 2022 conference, and Defendants have continued to produce thousands
of additional documents. Plaintiff’s Motion overstates the number and scope of her discovery
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requests that remain in dispute, as Defendants have agreed to supplement—or have already
produced additional responsive documents for—the vast majority of Plaintiff’s discovery requests.
As discussed further below, Defendants have already produced over 13,500 pages of documents
in response to Plaintiff’s written discovery requests in this case that involves one plaintiff who has
made limited employment-related claims. In producing this extensive number of documents, and
as described more fully below, Defendants have made an extraordinary effort, and incurred
significant expense, in their continued good-faith efforts to respond to Plaintiff’s extremely broad
requests.
Defendants are confident that the parties’ disagreements with respect to the few, remaining
discovery requests can still be resolved either prior to or during the upcoming telephonic status
conference with the Court scheduled for September 20, 2022. Accordingly, and for the reasons
detailed below, Plaintiff’s Motion is without merit and should be denied.
I. NATURE OF THE CASE
This employment-related matter is straightforward. The lawsuit involves one former
employee of AstraZeneca who voluntarily resigned from her employment after less than seven
years of employment. Plaintiff worked at AstraZeneca as a pharmaceutical sales representative,
and she primarily worked from her home.1 Plaintiff reported to Defendant Michael Ross for the
majority of her employment.
This is not a case in which the employer terminated an employee. Rather, Plaintiff
voluntarily resigned in December 2019 shortly after she received a Final Written Warning
(“FWW”) in November 2019. AstraZeneca issued the FWW to Plaintiff because she repeatedly
violated AstraZeneca’s work expectations and basic standards of conduct for sales representatives.
1
Plaintiff’s employment ended in December 2019, therefore Plaintiff was already working from home before the
pandemic, and a core job responsibility was for her to make in-person visits or calls to health care providers.
2
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(See Plaintiff’s Final Written Warning, attached hereto as Exhibit A; see also Work Expectations
for AstraZeneca Sales Professionals, attached hereto as Exhibit B; AstraZeneca’s HR USA–
Standards of Conduct Policy, attached hereto as Exhibit C). Specifically, Plaintiff failed to record
her sales calls in real time in AstraZeneca’s call recording software, “Veeva,” routinely backdated
her sales calls in Veeva, or neglected to record her sales calls at all. (Exhibit A). In addition, there
were “significant discrepancies over an extended period of time” regarding the miles Plaintiff
allegedly traveled for her work duties versus the fuel she purchased for her company-issued
vehicle. (Id.). Despite AstraZeneca’s numerous warnings and coachings to Plaintiff about these
performance issues—which began as early as May of 2018—Plaintiff’s performance never
improved before she was issued a FWW in November of 2019. AstraZeneca did not terminate the
Plaintiff for her conduct. AstraZeneca did not remove the Plaintiff from her current position.
Instead, Plaintiff made the decision to voluntarily resign in December of 2019 after she received
the FWW. Following her voluntary resignation, Plaintiff made five claims under state law relating
to retaliation, race and disability discrimination, and hostile work environment/sexual harassment.
Although the case is straightforward, aspects of Plaintiff’s broad discovery requests are
not. While Defendants have already responded to the vast majority of Plaintiff’s 48 document
requests and 25 interrogatories, certain requests are exceedingly broad, and grossly
disproportionate to the nature of the case. As further discussed below, Defendants have worked
diligently and in good faith to provide documents responsive to the vast majority of Plaintiff’s
requests, and the Motion to Compel is not warranted.
II. DEFENDANTS HAVE COMPLIED IN GOOD FAITH WITH THE PARTIES’
AGREEMENT AND TIMELINE FOR PROCEEDING WITH DISCOVERY
The Parties appeared for an in-person discovery conference on August 18, 2022 (the
“Discovery Conference”). Prior to the Discovery Conference, Defendants had already produced
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thousands of responsive documents relating to the majority of Plaintiff’s written discovery
requests. During the Discovery Conference and, as directed by the Court, the parties conferred
with one another to narrow the scope of the remaining discovery issues. Counsel for the parties
spent several hours working out the next steps for discovery. Counsel agreed to two immediate
steps. The first step was for Defendants to send to Plaintiff’s counsel by September 1, 2022, an
index detailing which of Plaintiff’s discovery requests Defendants were still supplementing, and
which requests Defendants would either not supplement or would supplement at a later time
(“Defendants’ Discovery Index”). The parties also agreed on the deadline of September 20, 2022,
for Defendants to produce additional documents as summarized in Defendants’ Discovery Index
because this is the date of the parties’ next telephonic status conference with Court.
Defendants have fully complied in good faith with everything the parties agreed to at the
Discovery Conference. On September 1, 2022, counsel timely sent Plaintiff’s counsel Defendants’
Discovery Index. (See Defendants’ Discovery Index, attached hereto as Exhibit D).2 Rather than
acknowledge receipt of Defendants’ Discovery Index, or ask to discuss any part of the index with
counsel for Defendants, Plaintiff’s counsel filed Plaintiff’s Motion to Compel Discovery the very
next day, September 2, 2022, the Friday before Labor Day weekend. Plaintiff did not attempt to
discuss Defendants’ Discovery Index, and Plaintiff did not wait to see which additional,
supplemental documents were being produced by the agreed-upon schedule of September 20,
2022. Instead, Plaintiff filed the Motion 18 days before the September 20, 2022 deadline that the
parties had established during the Discovery Conference. Moreover, had Plaintiff’s counsel
2
Plaintiff’s Motion states that Defendants sought to delay sending the Discovery Index, and provides no context for
the discussion. (Plaintiff’s Motion, p. 11). Counsel for Defendants asked to send it just one day later because he noticed
that the existing index could be further updated based on more documents that had been reviewed and were being
produced. Counsel for Defendants explained that he was away from the office and out-of-state with family dropping
his youngest off to college, and merely needed one day to update the Discovery Index. Plaintiff’s counsel declined the
request. Defendants’ counsel then sent the index later that same day on September 1.
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discussed the Discovery Index prior to filing the Motion, counsel would have understood that
Defendants were already working diligently to produce thousands of additional documents well
prior to the agreed date of September 20, 2022. Indeed, on September 6, 2022—the day after Labor
Day—Defendants produced over 8,000 pages of additional documents. On September 13, 2022,
Defendants produced approximately 2,500 pages of additional documents. Therefore, as of
September 13, 2022, Defendants have produced over 13,500 pages of documents in this case
involving one plaintiff who worked for AstraZeneca for less than seven years.
Despite Defendants having complied in good faith with all steps that were agreed upon
during the Discovery Conference, Plaintiff’s counsel filed Plaintiff’s Motion to Compel Discovery
without attempting to discuss Defendants’ Discovery Index, and nearly three weeks before
Defendants’ deadline to produce additional documents for certain requests from Defendants’
Discovery Index. As further discussed below, Plaintiff’s Motion should be denied.
III. THE DISCOVERY REQUESTS THAT ARE STILL IN DISPUTE ARE VERY
LIMITED
A. Defendants Are Supplementing Their Responses To The Vast Majority Of
Plaintiff’s Discovery Requests That Require Supplementation At This Time
Contrary to Plaintiff’s claims in her Motion, Defendants have agreed to supplement—and
have already produced additional responsive documents for—a vast majority of Plaintiff’s
discovery requests. As detailed in Defendants’ Discovery Index, and in a good faith effort to
resolve any remaining discovery issues relating to Plaintiff’s extremely broad discovery requests,
Defendants already agreed to supplement additional documents for 39 of Plaintiff’s 48 Requests
for Production of Documents. (“RFPs”) (Exhibit D). Defendants have also agreed to produce
additional documents/information responsive to 12 of Plaintiff’s 25 Interrogatories (“INTs”). (Id.).
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Plaintiff’s Motion addresses 10 of the 48 RFPs [RFPs 7, 8, 11, 12, 21, 22, 23, 24, 31, 32,
and 35], and 7 of the 25 INTs [INTs 6, 9, 12, 14, 23, 24, and 25]. Defendants address each
discovery request below in the same six groups as raised in the Motion.
1. Defendants Are Supplementing Responses To RFPs 7, 8, 11, And 12
As addressed in Section A.2 of the Motion, Plaintiff seeks in RFPs 7, 8, 11, and 12 a vast
set of records relating to four individuals specifically named in the RFPs—and “any other
Pharmaceutical Sales Specialist who worked at any point” during an approximate three-year
period starting on January 1, 2017 in the District managed by Ross. Defendants had already
produced thousands of documents relating to the individuals specifically named in these RFPs. In
particular, Defendants had already agreed to produce these records relating to other Pharmaceutical
Sales Specialist whom Plaintiff claimed were treated differently. Defendants had objected in good
faith, however, to the scope of these requests—in that they seek all records for every
Pharmaceutical Sales Specialist in Ross’ District over a lengthy period, regardless of whether
Plaintiff had alleged they were treated differently. During the Discovery Conference, counsel
discussed this precise issue, and Defendants’ counsel explained that it would let Plaintiff’s counsel
know by the agreed-upon deadline of September 1 whether it would agree to supplement these
requests. After all, that was the process that counsel had ironed out during the Discovery
Conference.
As confirmed in the September 1 Discovery Index, Defendants agreed in good faith to
produce the vast set of personnel records for additional Pharmaceutical Sales Representatives in
the District. Plaintiff’s Motion now asserts that there are three remaining employees for whom
these records are sought (Danielle Mancini, Brian Bottger, and Genell Zink Ritley) (Plaintiff’s
Motion, p. 14). While Defendants had appropriately raised an objection to the entirely overbroad
request for these records relating to every Pharmaceutical Sales Representative, and while the
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demand for all of these files for every such employee is grossly disproportionate to this case,
Defendants will agree to search for and produce documents that are responsive to RFPs 7, 8, 11,
and 12 for the three additional comparator employees identified by Plaintiff. (See Plaintiff’s
Motion at pp. 13-15). The Motion to Compel as to these RFPs is not warranted. Defendants
previously agreed to produce and supplement the requested records for all of the individuals
specifically identified in the RFPs, as well as for additional Pharmaceutical Sales Specialists, and
Plaintiff had already received thousands of documents for the comparators. The only remaining
issue related to three other employees who were not identified in the RFPs, and in a good faith
effort to resolve this issue and to move on, Defendants have agreed to produce those remaining
records even though the requests amount to an extreme fishing expedition through all Sales
Specialists’ personnel files, records, and communications.
2. INTs 6 And 9―Race And Sex Relating To Various Personnel
Plaintiff’s Motion also addresses INTs 6 and 9. (Section B.1, p. 16). In particular, Plaintiff
seeks information regarding the sex and race of comparators, decisionmakers, and others.
Defendants have not objected to providing this information. Indeed, Defendants already confirmed
in the initial discovery responses, and in the September 1, 2022 Discovery Index, that the personnel
files and/or other records produced can be used to identify an employee’s race and sex. To the
extent the race and sex of an employee is not reflected in the personnel file, or in other personnel
records, Defendants already communicated to Plaintiff that they would supplement their answer
to INT 6 based on available information. (To the extent a personnel record does not confirm, for
example, the race of an individual, it would not be appropriate for Defendants to speculate as to
the individual’s race, and this is type of information that can more appropriately be asked during
a deposition, if necessary). Finally, Defendants have not refused to provide the race and sex for
the broad categories of individuals mentioned in INT 9, but aspects of INT 9 are premature because
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it seeks the race and sex for “each person who has relevant knowledge or information concerning
or relating to the subject matter of Plaintiff’s Complaint and/or Defendants’ Answer... .”
Defendants have not objected to providing the race and sex of individuals identified through INTs
6 and 9, and the Motion to Compel as to these requests is not warranted.
3. INT 14 And RFP 33—Complaints By Anyone In The Entire District For
The Past Five Years
Plaintiff’s Motion also addresses INT 14 and RFP 33. (Section B.3, p. 17). In particular,
Plaintiff seeks an extremely wide variety of information relating to “any person who has made
a wrongful discharge, retaliation, disability discrimination, sex discrimination, or race
discrimination complaint or charge against (i) Ross or (ii) AstraZeneca in the District managed by
Ross during the past five (5) years, including, but not limited to, any formal or informal, written
or verbal, complaints or charges made through internal company procedures, or filed with any
State or Federal agency.” Defendants appropriately objected to aspects of these requests which are
far too broad, particularly because the requests seek information about individuals who may have
raised concerns that have nothing to do with the Plaintiff’s employment or with individuals who
are alleged to have harmed Plaintiff. For example, if an hourly employee somewhere in the District
mentioned in an email five years ago that another hourly employee treated him inappropriately,
and the employees did not even interact with or know the Plaintiff, and if the issue had nothing to
do with Defendant Ross, INT 14 and RFP 33 still seek that information. Such requests are wildly
overbroad and entirely disproportionate to this case—which primarily involves Plaintiff’s
complaints about her supervisor Ross during a distinct period. Therefore, what Defendants have
not objected to is the request for documents that are responsive to INT 14 and RFP 33 which seek
wrongful discharge, retaliation, or discrimination complaints against or relating to Defendant Ross
or other decisionmakers relating to Plaintiff. For example, Defendants already provided Ross’
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complete personnel file, and thousands of pages of communication relating to Ross. And to the
extent any additional records are located, Defendants fully understand their obligation to continue
to supplement the responses. The Motion to Compel as to INT 14 and RFP 33 is not warranted.
4. INTs 23, 24, And 25—Affirmative Defenses
Plaintiff’s Motion also addresses INTs 23, 24, and 25. (Section B.2, p. 16). In particular,
Plaintiff seeks “the facts supporting” various affirmative defenses that Defendants preserved in the
Answer to the Complaint. Defendants have not refused to provide responsive information, and
have appropriately stated that the requests are premature. After all, no depositions have been taken,
Plaintiff still has not responded to Defendants’ discovery requests, experts have not been
identified, and consistent with the steps agreed upon during the Discovery Conference, Defendants
are producing additional information. Defendants have not said they will not respond to INTs 23,
24, and 25, and instead have explained that they will respond later as discovery progresses. The
Motion to Compel is not warranted as to INTs 23, 24, and 25.3
5. INT 12 And RFP 31—Statements, Affidavits, Or Other Related
Documents
Plaintiff’s Motion argues that Defendants are withholding documents responsive to INT
12 and RFP 31. (Section A.1, p. 12). That is not accurate. These requests seek “any and all
statements, affidavits or other related documents containing information relating to any of the
allegations in this litigation which have been obtained by you, your agents, attorneys or
representatives from any of the persons having any knowledge of the facts of this case.” It is
frankly difficult to tell exactly what Plaintiff is seeking in these broad requests, but Defendants
3
Plaintiff’s Motion agrees, as stated in footnote 4, that certain requests such as INTs 15-18 and RFPs 32 and 35 are
premature because certain disclosures are not yet due based on the Court’s case schedule. Consistent with this, at least
seven of Plaintiff’s INTs ask for general information regarding persons with knowledge of Plaintiff’s Complaint,
potential lay witnesses, potential expert witnesses, potential documents that Defendants intend to use at trial, and
records custodians. (Id. at INTs 9, 15, 16, 17, 18, 20, and 21). For all seven of these INTs, Defendants also indicated
in Defendants’ Discovery Index that they will supplement their answers based on the Court’s case schedule. (Id.).
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have not refused to respond. First, Defendants have repeatedly confirmed that they have no
responsive “affidavits”—because that is the one specific type of document that Plaintiff asked for
in the requests. As confirmed in Defendants’ Discovery Index, Defendants first confirmed that
they do not have any affidavits in their possession that are responsive to either request. (Exhibit D,
at RFP 31 and INT 12). Defendants did not stop there. As Plaintiff acknowledges in the Motion at
page 12, Plaintiff already has records from AstraZeneca’s Human Resources Dept. which relate to
complaints or issues raised by Plaintiff. Plaintiff then states in the Motion “[i]f such information
(or other related information) is reduced to a statement, Plaintiff should be permitted to see it.”
(Plaintiff’s Motion, p. 12). Defendants have never said otherwise. To the extent there are such
written “statements,” Defendants already agreed to produce them. Consistent with this, Defendants
have already produced thousands of emails or text messages that directly relate to the Plaintiff, the
plaintiff’s work, investigations, and direct communications with her supervisor and others.
Defendants continue to work in good faith to locate, review, and produce actual statements, if any,
that relate to the Plaintiff.
What Defendants have objected to regarding INT 12 and RFP 31 is the grossly overbroad
and entirely undefined component of the requests which seek “any and all statements ... and other
related documents” that may contain “information” that relates to “any of the allegations in this
litigation.” (RFP 31). Such a request is almost entirely unlimited in scope. As written, this would
require AstraZeneca to somehow identify and review any statements, “other related documents,”
in any form, from any person that generally are “relating to” Plaintiff’s allegations. Defendants
certainly objected to this aspect of the overly broad and vague requests. As written, Plaintiff’s
requests would require AstraZeneca to identify, gather, and review every email, text, or other
document in which any person, in any position, may have said something about the Plaintiff,
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Plaintiff’s co-workers, Plaintiff’s supervisors, AstraZeneca, call-logging, mileage reimbursement,
etc. Defendants have not objected to, and have already produced, responsive records that relate to
the Plaintiff and her claims. Plaintiff’s Motion exaggerates the scope of the disputes at issue, and
ignores that several of her requests are undeniably overbroad, unduly burdensome, vague, and
ambiguous—and grossly disproportionate to the nature of this case. There certainly must be
reasonable limits on the scope of Plaintiff’s requests for additional undefined and vague “related
documents.” Plaintiff’s Motion as to INT 12 and RFP 31 is not warranted.
6. RFPs 21, 22, 23, And 24—“Any And All Emails, Text Messages”
And “Other Communications” Relating To An Overly Broad Group
Of Topics
Finally, Plaintiff’s Motion alleges Defendants are withholding communications responsive
to RFPs 21, 22, 23 and 24. (Section B.4, pp. 19-20). Plaintiff’s assertion that she has properly
limited these requests by subject matter is incorrect. These RFPs seek “any and all emails, text
messages, or other communications” over a one and half year period that “discuss Plaintiff” (RFPs
21, 23, and 24) or “that discuss Sumell” (RFP 22) in any manner. In addition, RFP 24 requests
Defendants to produce “any and all emails, text messages, or other communications” over a one
and half year period between Sumell and Ross “that discuss” several, extremely broad and vague
topics including “Veeva call logging, any investigation, AstraZeneca human resources, mileage
logging, expense reimbursement, or anything personal nature and/or unrelated to AstraZeneca
business” (RFP 24). (Exhibit D, at RFPs 21, 22, 23, and 24). The fact that Plaintiff has limited
these requests to or between certain custodians does not make them proper requests because,
similar to INT 12 and RFP 31 discussed above, these requests would require AstraZeneca to
somehow identify, gather, and review thousands upon thousands of emails, texts, or other
documents that simply mention or refer to Plaintiff, Sumell, call logging, expense reimbursement,
or any of the other extremely broad and vague topics listed in RFP 24. Moreover, there are several
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thousands of emails that are potentially responsive to these requests relating to just Plaintiff and
Sumell alone—which Defendants continue to identify, review, and produce. Defendants stand by
their original objections to the overly broad aspects of these requests, and their good faith
confirmation to Plaintiff from Defendants’ Discovery Index that “Defendants are still searching
for additional responsive communications and will supplement accordingly.” (Id.). Therefore,
Plaintiff’s Motion should also be denied to the extent it wrongly accuses Defendants of attempting
to improperly restrict the scope of her discovery requests.
IV. DEFENDANTS’ GOOD FAITH EFFORTS, AND EXTRAORIDINARY
EXPENSES, INCURRED IN RESPONDING TO PLAINTIFF’S DISCOVERY
REQUESTS
In producing over 13,500 pages of documents to date, Defendants have made an
extraordinary effort and incurred significant expenses in their good faith attempt to respond to
Plaintiff’s extremely broad and disproportionate discovery requests. For example, as of early
September 2022, AstraZeneca has already incurred $30,876.29 in fees and expenses for Consilio,
an E-discovery management company, to help identify, gather, and review documents responsive
to Plaintiff’s extremely broad requests. (Exhibit E). Notably, AstraZeneca engaged Consilio to
assist with the discovery process because doing so is the most effective strategy for reducing the
cost of defense, and the $30,876.29 AstraZeneca has already spent on Consilio does not include
any of the attorneys’ fees that AstraZeneca has paid its outside counsel for their assistance with
responding to Plaintiff’s discovery requests.
Further, the document review process for this case has been extremely intense due to the
overwhelmingly broad nature of many of Plaintiff’s discovery requests, as discussed above. For
instance, as of September 2, 2022, Consilio spent over 400 hours reviewing approximately 18,000
documents that were pulled from AstraZeneca’s files because they were potentially responsive to
Plaintiff’s broad requests. If AstraZeneca was required to respond to the grossly overbroad and
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disproportionate requests as written—such as RFPs 21, 22, 23, 24, 31 and INT 12—Consilio
estimates that it would take over 5,000 review hours and cost AstraZeneca over $300,000 for
Consilio to sort through all of the documents that could be potentially responsive to every one of
Plaintiff’s discovery requests as they are written. (Exhibit E). Again, neither of these figures
account for the hours and attorneys’ fees of AstraZeneca’s outside counsel assisting with this
review process. There is no basis for AstraZeneca to be forced to incur such a massive and
unreasonable cost in order to respond to the portions of the discovery requests that are grossly
disproportionate to this case, and which are nothing more than a massive fishing expedition
involving potentially tens of thousands of additional items.
Finally, given the significant effort and expenses that Defendants have already incurred,
coupled with the projected time and costs for continuing the review of documents potentially
responsive to Plaintiff’s discovery requests, Defendants have raised the possibility of fully
resolving this matter through confidential settlement discussions. In June 2021, and prior to the
filing of this lawsuit, the parties had essentially reached an agreement in principle to resolve all
claims, but the potential agreement fell through. However, earlier this week Plaintiff’s counsel
communicated a new settlement demand that was inexplicably more than four times the monetary
payment that the parties previously discussed in June 2021. While Defendants firmly believe that
the claims in this case are without merit under Ohio law, and that they have continued to satisfy
their discovery obligations in good faith, Defendants also respectfully propose that a formal
mediation may assist the parties in amicably resolving this matter before additional, massive, and
disproportionate fees and expenses must be incurred. Defendants will also be prepared to discuss
the potential for an immediate mediation at the upcoming telephone status conference with the
Court.
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V. CONCLUSION
Since the Discovery Conference when the parties reached an agreed upon timeline for
proceeding with discovery, Defendants have complied in good faith with all of their obligations
they agreed to on the record. Plaintiff’s counsel, however, filed Plaintiff’s Motion to Compel
Discovery on September 2, 2022—the day after he timely received Defendants’ Discovery Index,
and 18 days before the agreed-upon deadline of September 20, 2022, for Defendants to produce
additional documents to supplement certain requests from Defendants’ Discovery Index. Further,
and as explained in detail above, Plaintiff’s Motion largely mischaracterizes and exaggerates the
scope of the discovery issues, as Defendants have agreed to supplement—or have already
produced additional responsive documents for—the vast majority of Plaintiff’s discovery requests
that require supplementation at this time. Given that the parties disagree about only a handful of
Plaintiff’s discovery requests, Defendants are also confident that these few, remaining disputes
can be resolved fairly easily at the upcoming telephonic status conference with the Court scheduled
for September 20, 2022.
Accordingly, Plaintiff’s Motion to Compel Discovery is completely unnecessary and
should be denied, as should Plaintiff’s counsel’s request to submit a fee petition for his attorneys’
fees and expenses in connection with Plaintiff’s Motion. Defendants, therefore, respectfully
request permission to submit a fee petition for their attorneys’ fees and expenses in connection
with preparing this Brief in Opposition to Plaintiff’s Motion.
For all of the foregoing reasons, Defendants respectfully request that the Court deny
Plaintiff’s Motion to Compel Discovery.
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Respectfully submitted,
/s/ Thomas M. L. Metzger
Thomas M. L. Metzger (#0059694)
Judson S. Millhon (#0099987)
LITTLER MENDELSON, P.C.
41 South High Street, Suite 3250
Columbus, OH 43215
Telephone: 614.463.4216
Facsimile: 614.573.9795
E-mail: tmetzger@littler.com
jmillhon@littler.com
Attorneys for Defendants AstraZeneca
Pharmaceuticals, LP and Michael Ross
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CERTIFICATE OF SERVICE
I hereby certify that, on this 16th day of September, 2022, the foregoing Defendants’
Memorandum in Opposition to Plaintiff’s Motion to Compel Discovery was served on all parties
through this Court’s electronic filing system. Notice of filing will be performed by the Court’s
electronic filing system to the parties, and the parties may access the document through the Court’s
electronic filing system.
/s/ Thomas M. L. Metzger
An Attorney for Defendants
4861-3338-2705.4 / 049785-1084
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EXHIBIT A
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DISCIPLINARY RECORD
Final Written Warning
Employee Kim Kleps Effective November 2019
Name: Date:
Position: Sr. Pharmaceutical Sales Department: Field Sales-
Specialist Diabetes
Specialty
On October 17, 2019, a meeting was held with you, your District Sales Manager, Mike Ross, your
CBD, Fran Bellefeuille, and Sr. Employment Practices Partner, Linda Abbonizio, whereby you were
given an opportunity to respond to concerns regarding your call activity.
During this meeting, we reviewed your call activity as well as your fuel activity for 2019 and the
specific concerns regarding lack of calls being entered, calls being back-dated and several instances
where there is mileage being logged and fuel purchased. After reviewing Kim’s mileage and fuel
receipts, there are significant discrepancies over an extended period of time when reviewing Kim’s
recorded calls in Veeva vs. mileage on her company vehicle during fueling stops between January –
July of 2019. These discrepancies were numerous and egregious in nature, and suggestive of not
being in territory with customers. Dating back to last year, there have been numerous documented
coaching conversations specific to Veeva call activity and execution – including not entering calls,
backdating calls, low call execution metrics, and unaccounted time off in territory in Veeva calendar.
These conversations took place dating back to last year on 5/31 & 6/27 of 2018, and continued into
this year on 1/30, 4/25, 5/22, 5/30, 6/3, 7/8 of 2019. In 2018, Mike was clear with Kim that her
administrative efforts relative to Veeva call activity/entry were not meeting expectations and that
they would “continue to monitor moving forward.” Mike communicated to Kim that it was
important to enter calls as they occurred and during working hours. Mike also discussed the
importance of properly recording time off territory in Workday and Outlook.
In addition, during the meeting on October 17, 2019, we reviewed the Work Expectations for Sales
Professionals and you stated your understanding of these expectations. Despite having several
specific discussions with you as mentioned above regarding call expectations in Veeva, syncing
Veeva daily and general administrative responsibilities including expense reports, you continue to fail
to meet the minimum expectations of your job. Despite this understanding and your transparency
of not focusing on the administrative aspects of this role, you were unable to provide reasonable
explanations regarding the concerns/trends of your call activity based upon the data in Veeva as well
as the fuel report.
As part of the Final Written Warning, you are being provided a copy of AstraZeneca’s Work
Expectations for Sales Professionals and you are expected to adhere to all the expectations for Sales
Professionals.
Revised 1/17
AstraZeneca-000351
Sandra Kurt, Summit County Clerk of Courts
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We must not lose sight of our fundamental commitment of doing business the right way. Every
employee with AstraZeneca is expected to always do the right thing, not just the easy thing – and to
be motivated, empowered and supported with every action. At this time, it has been determined
that your behaviors and actions are not in alignment with AstraZeneca’s minimum Work
Expectations for Sales Professionals. In addition, we expect all employees to conduct
themselves in a professional manner in accordance with AstraZeneca’s Standards of
Conduct policy (a copy of this policy is attached for your reference):
x Professionalism, honesty, respect for others, and adherence to policy are standards of
conduct for all employees
As a result, you are being placed on a Final Written Warning (FWW) with the following
consequences:
x Your performance rating for 2019 will be no higher than a rating of “1”.
x You are not eligible for the FSIP bonus for the quarter in which this FWW was issued
and for the 3 subsequent quarters (or equivalent to one year)
x If applicable, any subjective behavior-based score given by your manager cannot
exceed 100%.
x You may not participate in recognition or rewards programs during 2019.
x You are restricted from posting for promotional, advancement or developmental open
positions for one year from the date of this warning.
This offense raises a concern about your commitment to meeting the performance and behavioral
standards required to maintain your employment. These standards help ensure productivity and
ethical conduct, which are critical to our success. Accordingly, this is a final warning. You are on
notice that any further conduct that violates the Work Expectations for Sales Professionals or any
other company policy or conduct that otherwise indicates a failure to meet the expectations of your
job, will result in the immediate termination of your employment.
Signatures
_________________________________________ ________________
Mike Ross, District Sales Manager Date
_________________________________________ ________________
Linda Abbonizio, Sr. Employment Practices Partner Date
** Any employee comments response can be made on a separate sheet and attached to this DRF.
____________________________________ _______________
Kim Kleps Sr. PSS Date
All Employees of AstraZeneca are employed at will. Nothing in this Disciplinary Record changes
your status as an at-will employee.
Revised 1/17
AstraZeneca-000352
Sandra Kurt, Summit County Clerk of Courts
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EXHIBIT B
Sandra Kurt, Summit County Clerk of Courts
CV-2021-09-2905 MICHAEL, KATHRYN 09/16/2022 10:56:31 AM MOPP Page 21 of 42
Work Expectations for AstraZeneca Sales Professionals
Introduction
The success of our business, and the development of trust and teamwork, depends on our ability to rely on
one another to meet the expectations of the job. To help our sales professionals succeed in their roles, and
to protect the interests of the Company, AstraZeneca has established certain essential work expectations
that all of our sales professionals are expected to know and follow.
Sales Duties
All sales duties must be performed in a professional manner by using AstraZeneca approved sales methods
(including client planning and evaluation assessments) and exercising discretion and judgment in accordance
with Company policy, particularly the Company’s Code of Conduct, Standards of Employee Conduct, Policy
on Reporting Suspected Policy Violations, and other policies that may be established from time to time.
Work Schedule
Selling activities are to be performed for the purpose of maximizing client interactions and providing
continuity in the delivery of sales services. AstraZeneca’s normal operating work week is Monday through
Friday, from 8:30 a.m. to 4:45
Preview
CV-2021-09-2905 MICHAEL, KATHRYN 09/16/2022 10:56:31 AM MOPP Page 1 of 42 IN THE SUMMIT COUNTY COURT OF COMMON PLEAS, OHIO GENERAL DIVISION KIMBERLY KLEPS, : : Plaintiff, : Case No. CV-2021-09-2905 : v. : Judge Kathryn Michael : ASTRAZENECA PHARMACEUTICALS : Magistrate Judge Voorhees LP, et al., : : Defendants. : DEFENDANTS’ MEMORANDUM IN OPPOSITION TO PLAINTIFF’S MOTION TO COMPEL DISCOVERY Defendants AstraZeneca Pharmaceuticals, LP (“AstraZeneca”) and Michael Ross (collectively, “Defendants”), by and through counsel, respectfully oppose Plaintiff’s Motion to Compel Discovery (“Plaintiff’s Motion”). Contrary to Plaintiff’s claims in her Motion, Defendants have complied, and will continue to comply, in good faith with their discovery obligations and with the parties’ agreement and timeline for proceeding with discovery as established during the in-person conference on August 18, 2022. Moreover, Plaintiff’s Motion was filed 18 days before the September 20, 2022 deadline for production of supplemental records that the parties had agreed upon during the August 18, 2022 conference, and Defendants have continued to produce thousands of additional documents. Plaintiff’s Motion overstates the number and scope of her discovery Sandra Kurt, Summit County Clerk of Courts CV-2021-09-2905 MICHAEL, KATHRYN 09/16/2022 10:56:31 AM MOPP Page 2 of 42 requests that remain in dispute, as Defendants have agreed to supplement—or have already produced additional responsive documents for—the vast majority of Plaintiff’s discovery requests. As discussed further below, Defendants have already produced over 13,500 pages of documents in response to Plaintiff’s written discovery requests in this case that involves one plaintiff who has made limited employment-related claims. In producing this extensive number of documents, and as described more fully below, Defendants have made an extraordinary effort, and incurred significant expense, in their continued good-faith efforts to respond to Plaintiff’s extremely broad requests. Defendants are confident that the parties’ disagreements with respect to the few, remaining discovery requests can still be resolved either prior to or during the upcoming telephonic status conference with the Court scheduled for September 20, 2022. Accordingly, and for the reasons detailed below, Plaintiff’s Motion is without merit and should be denied. I. NATURE OF THE CASE This employment-related matter is straightforward. The lawsuit involves one former employee of AstraZeneca who voluntarily resigned from her employment after less than seven years of employment. Plaintiff worked at AstraZeneca as a pharmaceutical sales representative, and she primarily worked from her home.1 Plaintiff reported to Defendant Michael Ross for the majority of her employment. This is not a case in which the employer terminated an employee. Rather, Plaintiff voluntarily resigned in December 2019 shortly after she received a Final Written Warning (“FWW”) in November 2019. AstraZeneca issued the FWW to Plaintiff because she repeatedly violated AstraZeneca’s work expectations and basic standards of conduct for sales representatives. 1 Plaintiff’s employment ended in December 2019, therefore Plaintiff was already working from home before the pandemic, and a core job responsibility was for her to make in-person visits or calls to health care providers. 2 Sandra Kurt, Summit County Clerk of Courts CV-2021-09-2905 MICHAEL, KATHRYN 09/16/2022 10:56:31 AM MOPP Page 3 of 42 (See Plaintiff’s Final Written Warning, attached hereto as Exhibit A; see also Work Expectations for AstraZeneca Sales Professionals, attached hereto as Exhibit B; AstraZeneca’s HR USA– Standards of Conduct Policy, attached hereto as Exhibit C). Specifically, Plaintiff failed to record her sales calls in real time in AstraZeneca’s call recording software, “Veeva,” routinely backdated her sales calls in Veeva, or neglected to record her sales calls at all. (Exhibit A). In addition, there were “significant discrepancies over an extended period of time” regarding the miles Plaintiff allegedly traveled for her work duties versus the fuel she purchased for her company-issued vehicle. (Id.). Despite AstraZeneca’s numerous warnings and coachings to Plaintiff about these performance issues—which began as early as May of 2018—Plaintiff’s performance never improved before she was issued a FWW in November of 2019. AstraZeneca did not terminate the Plaintiff for her conduct. AstraZeneca did not remove the Plaintiff from her current position. Instead, Plaintiff made the decision to voluntarily resign in December of 2019 after she received the FWW. Following her voluntary resignation, Plaintiff made five claims under state law relating to retaliation, race and disability discrimination, and hostile work environment/sexual harassment. Although the case is straightforward, aspects of Plaintiff’s broad discovery requests are not. While Defendants have already responded to the vast majority of Plaintiff’s 48 document requests and 25 interrogatories, certain requests are exceedingly broad, and grossly disproportionate to the nature of the case. As further discussed below, Defendants have worked diligently and in good faith to provide documents responsive to the vast majority of Plaintiff’s requests, and the Motion to Compel is not warranted. II. DEFENDANTS HAVE COMPLIED IN GOOD FAITH WITH THE PARTIES’ AGREEMENT AND TIMELINE FOR PROCEEDING WITH DISCOVERY The Parties appeared for an in-person discovery conference on August 18, 2022 (the “Discovery Conference”). Prior to the Discovery Conference, Defendants had already produced 3 Sandra Kurt, Summit County Clerk of Courts CV-2021-09-2905 MICHAEL, KATHRYN 09/16/2022 10:56:31 AM MOPP Page 4 of 42 thousands of responsive documents relating to the majority of Plaintiff’s written discovery requests. During the Discovery Conference and, as directed by the Court, the parties conferred with one another to narrow the scope of the remaining discovery issues. Counsel for the parties spent several hours working out the next steps for discovery. Counsel agreed to two immediate steps. The first step was for Defendants to send to Plaintiff’s counsel by September 1, 2022, an index detailing which of Plaintiff’s discovery requests Defendants were still supplementing, and which requests Defendants would either not supplement or would supplement at a later time (“Defendants’ Discovery Index”). The parties also agreed on the deadline of September 20, 2022, for Defendants to produce additional documents as summarized in Defendants’ Discovery Index because this is the date of the parties’ next telephonic status conference with Court. Defendants have fully complied in good faith with everything the parties agreed to at the Discovery Conference. On September 1, 2022, counsel timely sent Plaintiff’s counsel Defendants’ Discovery Index. (See Defendants’ Discovery Index, attached hereto as Exhibit D).2 Rather than acknowledge receipt of Defendants’ Discovery Index, or ask to discuss any part of the index with counsel for Defendants, Plaintiff’s counsel filed Plaintiff’s Motion to Compel Discovery the very next day, September 2, 2022, the Friday before Labor Day weekend. Plaintiff did not attempt to discuss Defendants’ Discovery Index, and Plaintiff did not wait to see which additional, supplemental documents were being produced by the agreed-upon schedule of September 20, 2022. Instead, Plaintiff filed the Motion 18 days before the September 20, 2022 deadline that the parties had established during the Discovery Conference. Moreover, had Plaintiff’s counsel 2 Plaintiff’s Motion states that Defendants sought to delay sending the Discovery Index, and provides no context for the discussion. (Plaintiff’s Motion, p. 11). Counsel for Defendants asked to send it just one day later because he noticed that the existing index could be further updated based on more documents that had been reviewed and were being produced. Counsel for Defendants explained that he was away from the office and out-of-state with family dropping his youngest off to college, and merely needed one day to update the Discovery Index. Plaintiff’s counsel declined the request. Defendants’ counsel then sent the index later that same day on September 1. 4 Sandra Kurt, Summit County Clerk of Courts CV-2021-09-2905 MICHAEL, KATHRYN 09/16/2022 10:56:31 AM MOPP Page 5 of 42 discussed the Discovery Index prior to filing the Motion, counsel would have understood that Defendants were already working diligently to produce thousands of additional documents well prior to the agreed date of September 20, 2022. Indeed, on September 6, 2022—the day after Labor Day—Defendants produced over 8,000 pages of additional documents. On September 13, 2022, Defendants produced approximately 2,500 pages of additional documents. Therefore, as of September 13, 2022, Defendants have produced over 13,500 pages of documents in this case involving one plaintiff who worked for AstraZeneca for less than seven years. Despite Defendants having complied in good faith with all steps that were agreed upon during the Discovery Conference, Plaintiff’s counsel filed Plaintiff’s Motion to Compel Discovery without attempting to discuss Defendants’ Discovery Index, and nearly three weeks before Defendants’ deadline to produce additional documents for certain requests from Defendants’ Discovery Index. As further discussed below, Plaintiff’s Motion should be denied. III. THE DISCOVERY REQUESTS THAT ARE STILL IN DISPUTE ARE VERY LIMITED A. Defendants Are Supplementing Their Responses To The Vast Majority Of Plaintiff’s Discovery Requests That Require Supplementation At This Time Contrary to Plaintiff’s claims in her Motion, Defendants have agreed to supplement—and have already produced additional responsive documents for—a vast majority of Plaintiff’s discovery requests. As detailed in Defendants’ Discovery Index, and in a good faith effort to resolve any remaining discovery issues relating to Plaintiff’s extremely broad discovery requests, Defendants already agreed to supplement additional documents for 39 of Plaintiff’s 48 Requests for Production of Documents. (“RFPs”) (Exhibit D). Defendants have also agreed to produce additional documents/information responsive to 12 of Plaintiff’s 25 Interrogatories (“INTs”). (Id.). 5 Sandra Kurt, Summit County Clerk of Courts CV-2021-09-2905 MICHAEL, KATHRYN 09/16/2022 10:56:31 AM MOPP Page 6 of 42 Plaintiff’s Motion addresses 10 of the 48 RFPs [RFPs 7, 8, 11, 12, 21, 22, 23, 24, 31, 32, and 35], and 7 of the 25 INTs [INTs 6, 9, 12, 14, 23, 24, and 25]. Defendants address each discovery request below in the same six groups as raised in the Motion. 1. Defendants Are Supplementing Responses To RFPs 7, 8, 11, And 12 As addressed in Section A.2 of the Motion, Plaintiff seeks in RFPs 7, 8, 11, and 12 a vast set of records relating to four individuals specifically named in the RFPs—and “any other Pharmaceutical Sales Specialist who worked at any point” during an approximate three-year period starting on January 1, 2017 in the District managed by Ross. Defendants had already produced thousands of documents relating to the individuals specifically named in these RFPs. In particular, Defendants had already agreed to produce these records relating to other Pharmaceutical Sales Specialist whom Plaintiff claimed were treated differently. Defendants had objected in good faith, however, to the scope of these requests—in that they seek all records for every Pharmaceutical Sales Specialist in Ross’ District over a lengthy period, regardless of whether Plaintiff had alleged they were treated differently. During the Discovery Conference, counsel discussed this precise issue, and Defendants’ counsel explained that it would let Plaintiff’s counsel know by the agreed-upon deadline of September 1 whether it would agree to supplement these requests. After all, that was the process that counsel had ironed out during the Discovery Conference. As confirmed in the September 1 Discovery Index, Defendants agreed in good faith to produce the vast set of personnel records for additional Pharmaceutical Sales Representatives in the District. Plaintiff’s Motion now asserts that there are three remaining employees for whom these records are sought (Danielle Mancini, Brian Bottger, and Genell Zink Ritley) (Plaintiff’s Motion, p. 14). While Defendants had appropriately raised an objection to the entirely overbroad request for these records relating to every Pharmaceutical Sales Representative, and while the 6 Sandra Kurt, Summit County Clerk of Courts CV-2021-09-2905 MICHAEL, KATHRYN 09/16/2022 10:56:31 AM MOPP Page 7 of 42 demand for all of these files for every such employee is grossly disproportionate to this case, Defendants will agree to search for and produce documents that are responsive to RFPs 7, 8, 11, and 12 for the three additional comparator employees identified by Plaintiff. (See Plaintiff’s Motion at pp. 13-15). The Motion to Compel as to these RFPs is not warranted. Defendants previously agreed to produce and supplement the requested records for all of the individuals specifically identified in the RFPs, as well as for additional Pharmaceutical Sales Specialists, and Plaintiff had already received thousands of documents for the comparators. The only remaining issue related to three other employees who were not identified in the RFPs, and in a good faith effort to resolve this issue and to move on, Defendants have agreed to produce those remaining records even though the requests amount to an extreme fishing expedition through all Sales Specialists’ personnel files, records, and communications. 2. INTs 6 And 9―Race And Sex Relating To Various Personnel Plaintiff’s Motion also addresses INTs 6 and 9. (Section B.1, p. 16). In particular, Plaintiff seeks information regarding the sex and race of comparators, decisionmakers, and others. Defendants have not objected to providing this information. Indeed, Defendants already confirmed in the initial discovery responses, and in the September 1, 2022 Discovery Index, that the personnel files and/or other records produced can be used to identify an employee’s race and sex. To the extent the race and sex of an employee is not reflected in the personnel file, or in other personnel records, Defendants already communicated to Plaintiff that they would supplement their answer to INT 6 based on available information. (To the extent a personnel record does not confirm, for example, the race of an individual, it would not be appropriate for Defendants to speculate as to the individual’s race, and this is type of information that can more appropriately be asked during a deposition, if necessary). Finally, Defendants have not refused to provide the race and sex for the broad categories of individuals mentioned in INT 9, but aspects of INT 9 are premature because 7 Sandra Kurt, Summit County Clerk of Courts CV-2021-09-2905 MICHAEL, KATHRYN 09/16/2022 10:56:31 AM MOPP Page 8 of 42 it seeks the race and sex for “each person who has relevant knowledge or information concerning or relating to the subject matter of Plaintiff’s Complaint and/or Defendants’ Answer... .” Defendants have not objected to providing the race and sex of individuals identified through INTs 6 and 9, and the Motion to Compel as to these requests is not warranted. 3. INT 14 And RFP 33—Complaints By Anyone In The Entire District For The Past Five Years Plaintiff’s Motion also addresses INT 14 and RFP 33. (Section B.3, p. 17). In particular, Plaintiff seeks an extremely wide variety of information relating to “any person who has made a wrongful discharge, retaliation, disability discrimination, sex discrimination, or race discrimination complaint or charge against (i) Ross or (ii) AstraZeneca in the District managed by Ross during the past five (5) years, including, but not limited to, any formal or informal, written or verbal, complaints or charges made through internal company procedures, or filed with any State or Federal agency.” Defendants appropriately objected to aspects of these requests which are far too broad, particularly because the requests seek information about individuals who may have raised concerns that have nothing to do with the Plaintiff’s employment or with individuals who are alleged to have harmed Plaintiff. For example, if an hourly employee somewhere in the District mentioned in an email five years ago that another hourly employee treated him inappropriately, and the employees did not even interact with or know the Plaintiff, and if the issue had nothing to do with Defendant Ross, INT 14 and RFP 33 still seek that information. Such requests are wildly overbroad and entirely disproportionate to this case—which primarily involves Plaintiff’s complaints about her supervisor Ross during a distinct period. Therefore, what Defendants have not objected to is the request for documents that are responsive to INT 14 and RFP 33 which seek wrongful discharge, retaliation, or discrimination complaints against or relating to Defendant Ross or other decisionmakers relating to Plaintiff. For example, Defendants already provided Ross’ 8 Sandra Kurt, Summit County Clerk of Courts CV-2021-09-2905 MICHAEL, KATHRYN 09/16/2022 10:56:31 AM MOPP Page 9 of 42 complete personnel file, and thousands of pages of communication relating to Ross. And to the extent any additional records are located, Defendants fully understand their obligation to continue to supplement the responses. The Motion to Compel as to INT 14 and RFP 33 is not warranted. 4. INTs 23, 24, And 25—Affirmative Defenses Plaintiff’s Motion also addresses INTs 23, 24, and 25. (Section B.2, p. 16). In particular, Plaintiff seeks “the facts supporting” various affirmative defenses that Defendants preserved in the Answer to the Complaint. Defendants have not refused to provide responsive information, and have appropriately stated that the requests are premature. After all, no depositions have been taken, Plaintiff still has not responded to Defendants’ discovery requests, experts have not been identified, and consistent with the steps agreed upon during the Discovery Conference, Defendants are producing additional information. Defendants have not said they will not respond to INTs 23, 24, and 25, and instead have explained that they will respond later as discovery progresses. The Motion to Compel is not warranted as to INTs 23, 24, and 25.3 5. INT 12 And RFP 31—Statements, Affidavits, Or Other Related Documents Plaintiff’s Motion argues that Defendants are withholding documents responsive to INT 12 and RFP 31. (Section A.1, p. 12). That is not accurate. These requests seek “any and all statements, affidavits or other related documents containing information relating to any of the allegations in this litigation which have been obtained by you, your agents, attorneys or representatives from any of the persons having any knowledge of the facts of this case.” It is frankly difficult to tell exactly what Plaintiff is seeking in these broad requests, but Defendants 3 Plaintiff’s Motion agrees, as stated in footnote 4, that certain requests such as INTs 15-18 and RFPs 32 and 35 are premature because certain disclosures are not yet due based on the Court’s case schedule. Consistent with this, at least seven of Plaintiff’s INTs ask for general information regarding persons with knowledge of Plaintiff’s Complaint, potential lay witnesses, potential expert witnesses, potential documents that Defendants intend to use at trial, and records custodians. (Id. at INTs 9, 15, 16, 17, 18, 20, and 21). For all seven of these INTs, Defendants also indicated in Defendants’ Discovery Index that they will supplement their answers based on the Court’s case schedule. (Id.). 9 Sandra Kurt, Summit County Clerk of Courts CV-2021-09-2905 MICHAEL, KATHRYN 09/16/2022 10:56:31 AM MOPP Page 10 of 42 have not refused to respond. First, Defendants have repeatedly confirmed that they have no responsive “affidavits”—because that is the one specific type of document that Plaintiff asked for in the requests. As confirmed in Defendants’ Discovery Index, Defendants first confirmed that they do not have any affidavits in their possession that are responsive to either request. (Exhibit D, at RFP 31 and INT 12). Defendants did not stop there. As Plaintiff acknowledges in the Motion at page 12, Plaintiff already has records from AstraZeneca’s Human Resources Dept. which relate to complaints or issues raised by Plaintiff. Plaintiff then states in the Motion “[i]f such information (or other related information) is reduced to a statement, Plaintiff should be permitted to see it.” (Plaintiff’s Motion, p. 12). Defendants have never said otherwise. To the extent there are such written “statements,” Defendants already agreed to produce them. Consistent with this, Defendants have already produced thousands of emails or text messages that directly relate to the Plaintiff, the plaintiff’s work, investigations, and direct communications with her supervisor and others. Defendants continue to work in good faith to locate, review, and produce actual statements, if any, that relate to the Plaintiff. What Defendants have objected to regarding INT 12 and RFP 31 is the grossly overbroad and entirely undefined component of the requests which seek “any and all statements ... and other related documents” that may contain “information” that relates to “any of the allegations in this litigation.” (RFP 31). Such a request is almost entirely unlimited in scope. As written, this would require AstraZeneca to somehow identify and review any statements, “other related documents,” in any form, from any person that generally are “relating to” Plaintiff’s allegations. Defendants certainly objected to this aspect of the overly broad and vague requests. As written, Plaintiff’s requests would require AstraZeneca to identify, gather, and review every email, text, or other document in which any person, in any position, may have said something about the Plaintiff, 10 Sandra Kurt, Summit County Clerk of Courts CV-2021-09-2905 MICHAEL, KATHRYN 09/16/2022 10:56:31 AM MOPP Page 11 of 42 Plaintiff’s co-workers, Plaintiff’s supervisors, AstraZeneca, call-logging, mileage reimbursement, etc. Defendants have not objected to, and have already produced, responsive records that relate to the Plaintiff and her claims. Plaintiff’s Motion exaggerates the scope of the disputes at issue, and ignores that several of her requests are undeniably overbroad, unduly burdensome, vague, and ambiguous—and grossly disproportionate to the nature of this case. There certainly must be reasonable limits on the scope of Plaintiff’s requests for additional undefined and vague “related documents.” Plaintiff’s Motion as to INT 12 and RFP 31 is not warranted. 6. RFPs 21, 22, 23, And 24—“Any And All Emails, Text Messages” And “Other Communications” Relating To An Overly Broad Group Of Topics Finally, Plaintiff’s Motion alleges Defendants are withholding communications responsive to RFPs 21, 22, 23 and 24. (Section B.4, pp. 19-20). Plaintiff’s assertion that she has properly limited these requests by subject matter is incorrect. These RFPs seek “any and all emails, text messages, or other communications” over a one and half year period that “discuss Plaintiff” (RFPs 21, 23, and 24) or “that discuss Sumell” (RFP 22) in any manner. In addition, RFP 24 requests Defendants to produce “any and all emails, text messages, or other communications” over a one and half year period between Sumell and Ross “that discuss” several, extremely broad and vague topics including “Veeva call logging, any investigation, AstraZeneca human resources, mileage logging, expense reimbursement, or anything personal nature and/or unrelated to AstraZeneca business” (RFP 24). (Exhibit D, at RFPs 21, 22, 23, and 24). The fact that Plaintiff has limited these requests to or between certain custodians does not make them proper requests because, similar to INT 12 and RFP 31 discussed above, these requests would require AstraZeneca to somehow identify, gather, and review thousands upon thousands of emails, texts, or other documents that simply mention or refer to Plaintiff, Sumell, call logging, expense reimbursement, or any of the other extremely broad and vague topics listed in RFP 24. Moreover, there are several 11 Sandra Kurt, Summit County Clerk of Courts CV-2021-09-2905 MICHAEL, KATHRYN 09/16/2022 10:56:31 AM MOPP Page 12 of 42 thousands of emails that are potentially responsive to these requests relating to just Plaintiff and Sumell alone—which Defendants continue to identify, review, and produce. Defendants stand by their original objections to the overly broad aspects of these requests, and their good faith confirmation to Plaintiff from Defendants’ Discovery Index that “Defendants are still searching for additional responsive communications and will supplement accordingly.” (Id.). Therefore, Plaintiff’s Motion should also be denied to the extent it wrongly accuses Defendants of attempting to improperly restrict the scope of her discovery requests. IV. DEFENDANTS’ GOOD FAITH EFFORTS, AND EXTRAORIDINARY EXPENSES, INCURRED IN RESPONDING TO PLAINTIFF’S DISCOVERY REQUESTS In producing over 13,500 pages of documents to date, Defendants have made an extraordinary effort and incurred significant expenses in their good faith attempt to respond to Plaintiff’s extremely broad and disproportionate discovery requests. For example, as of early September 2022, AstraZeneca has already incurred $30,876.29 in fees and expenses for Consilio, an E-discovery management company, to help identify, gather, and review documents responsive to Plaintiff’s extremely broad requests. (Exhibit E). Notably, AstraZeneca engaged Consilio to assist with the discovery process because doing so is the most effective strategy for reducing the cost of defense, and the $30,876.29 AstraZeneca has already spent on Consilio does not include any of the attorneys’ fees that AstraZeneca has paid its outside counsel for their assistance with responding to Plaintiff’s discovery requests. Further, the document review process for this case has been extremely intense due to the overwhelmingly broad nature of many of Plaintiff’s discovery requests, as discussed above. For instance, as of September 2, 2022, Consilio spent over 400 hours reviewing approximately 18,000 documents that were pulled from AstraZeneca’s files because they were potentially responsive to Plaintiff’s broad requests. If AstraZeneca was required to respond to the grossly overbroad and 12 Sandra Kurt, Summit County Clerk of Courts CV-2021-09-2905 MICHAEL, KATHRYN 09/16/2022 10:56:31 AM MOPP Page 13 of 42 disproportionate requests as written—such as RFPs 21, 22, 23, 24, 31 and INT 12—Consilio estimates that it would take over 5,000 review hours and cost AstraZeneca over $300,000 for Consilio to sort through all of the documents that could be potentially responsive to every one of Plaintiff’s discovery requests as they are written. (Exhibit E). Again, neither of these figures account for the hours and attorneys’ fees of AstraZeneca’s outside counsel assisting with this review process. There is no basis for AstraZeneca to be forced to incur such a massive and unreasonable cost in order to respond to the portions of the discovery requests that are grossly disproportionate to this case, and which are nothing more than a massive fishing expedition involving potentially tens of thousands of additional items. Finally, given the significant effort and expenses that Defendants have already incurred, coupled with the projected time and costs for continuing the review of documents potentially responsive to Plaintiff’s discovery requests, Defendants have raised the possibility of fully resolving this matter through confidential settlement discussions. In June 2021, and prior to the filing of this lawsuit, the parties had essentially reached an agreement in principle to resolve all claims, but the potential agreement fell through. However, earlier this week Plaintiff’s counsel communicated a new settlement demand that was inexplicably more than four times the monetary payment that the parties previously discussed in June 2021. While Defendants firmly believe that the claims in this case are without merit under Ohio law, and that they have continued to satisfy their discovery obligations in good faith, Defendants also respectfully propose that a formal mediation may assist the parties in amicably resolving this matter before additional, massive, and disproportionate fees and expenses must be incurred. Defendants will also be prepared to discuss the potential for an immediate mediation at the upcoming telephone status conference with the Court. 13 Sandra Kurt, Summit County Clerk of Courts CV-2021-09-2905 MICHAEL, KATHRYN 09/16/2022 10:56:31 AM MOPP Page 14 of 42 V. CONCLUSION Since the Discovery Conference when the parties reached an agreed upon timeline for proceeding with discovery, Defendants have complied in good faith with all of their obligations they agreed to on the record. Plaintiff’s counsel, however, filed Plaintiff’s Motion to Compel Discovery on September 2, 2022—the day after he timely received Defendants’ Discovery Index, and 18 days before the agreed-upon deadline of September 20, 2022, for Defendants to produce additional documents to supplement certain requests from Defendants’ Discovery Index. Further, and as explained in detail above, Plaintiff’s Motion largely mischaracterizes and exaggerates the scope of the discovery issues, as Defendants have agreed to supplement—or have already produced additional responsive documents for—the vast majority of Plaintiff’s discovery requests that require supplementation at this time. Given that the parties disagree about only a handful of Plaintiff’s discovery requests, Defendants are also confident that these few, remaining disputes can be resolved fairly easily at the upcoming telephonic status conference with the Court scheduled for September 20, 2022. Accordingly, Plaintiff’s Motion to Compel Discovery is completely unnecessary and should be denied, as should Plaintiff’s counsel’s request to submit a fee petition for his attorneys’ fees and expenses in connection with Plaintiff’s Motion. Defendants, therefore, respectfully request permission to submit a fee petition for their attorneys’ fees and expenses in connection with preparing this Brief in Opposition to Plaintiff’s Motion. For all of the foregoing reasons, Defendants respectfully request that the Court deny Plaintiff’s Motion to Compel Discovery. 14 Sandra Kurt, Summit County Clerk of Courts CV-2021-09-2905 MICHAEL, KATHRYN 09/16/2022 10:56:31 AM MOPP Page 15 of 42 Respectfully submitted, /s/ Thomas M. L. Metzger Thomas M. L. Metzger (#0059694) Judson S. Millhon (#0099987) LITTLER MENDELSON, P.C. 41 South High Street, Suite 3250 Columbus, OH 43215 Telephone: 614.463.4216 Facsimile: 614.573.9795 E-mail: tmetzger@littler.com jmillhon@littler.com Attorneys for Defendants AstraZeneca Pharmaceuticals, LP and Michael Ross 15 Sandra Kurt, Summit County Clerk of Courts CV-2021-09-2905 MICHAEL, KATHRYN 09/16/2022 10:56:31 AM MOPP Page 16 of 42 CERTIFICATE OF SERVICE I hereby certify that, on this 16th day of September, 2022, the foregoing Defendants’ Memorandum in Opposition to Plaintiff’s Motion to Compel Discovery was served on all parties through this Court’s electronic filing system. Notice of filing will be performed by the Court’s electronic filing system to the parties, and the parties may access the document through the Court’s electronic filing system. /s/ Thomas M. L. Metzger An Attorney for Defendants 4861-3338-2705.4 / 049785-1084 16 Sandra Kurt, Summit County Clerk of Courts CV-2021-09-2905 MICHAEL, KATHRYN 09/16/2022 10:56:31 AM MOPP Page 17 of 42 EXHIBIT A Sandra Kurt, Summit County Clerk of Courts CV-2021-09-2905 MICHAEL, KATHRYN 09/16/2022 10:56:31 AM MOPP Page 18 of 42 DISCIPLINARY RECORD Final Written Warning Employee Kim Kleps Effective November 2019 Name: Date: Position: Sr. Pharmaceutical Sales Department: Field Sales- Specialist Diabetes Specialty On October 17, 2019, a meeting was held with you, your District Sales Manager, Mike Ross, your CBD, Fran Bellefeuille, and Sr. Employment Practices Partner, Linda Abbonizio, whereby you were given an opportunity to respond to concerns regarding your call activity. During this meeting, we reviewed your call activity as well as your fuel activity for 2019 and the specific concerns regarding lack of calls being entered, calls being back-dated and several instances where there is mileage being logged and fuel purchased. After reviewing Kim’s mileage and fuel receipts, there are significant discrepancies over an extended period of time when reviewing Kim’s recorded calls in Veeva vs. mileage on her company vehicle during fueling stops between January – July of 2019. These discrepancies were numerous and egregious in nature, and suggestive of not being in territory with customers. Dating back to last year, there have been numerous documented coaching conversations specific to Veeva call activity and execution – including not entering calls, backdating calls, low call execution metrics, and unaccounted time off in territory in Veeva calendar. These conversations took place dating back to last year on 5/31 & 6/27 of 2018, and continued into this year on 1/30, 4/25, 5/22, 5/30, 6/3, 7/8 of 2019. In 2018, Mike was clear with Kim that her administrative efforts relative to Veeva call activity/entry were not meeting expectations and that they would “continue to monitor moving forward.” Mike communicated to Kim that it was important to enter calls as they occurred and during working hours. Mike also discussed the importance of properly recording time off territory in Workday and Outlook. In addition, during the meeting on October 17, 2019, we reviewed the Work Expectations for Sales Professionals and you stated your understanding of these expectations. Despite having several specific discussions with you as mentioned above regarding call expectations in Veeva, syncing Veeva daily and general administrative responsibilities including expense reports, you continue to fail to meet the minimum expectations of your job. Despite this understanding and your transparency of not focusing on the administrative aspects of this role, you were unable to provide reasonable explanations regarding the concerns/trends of your call activity based upon the data in Veeva as well as the fuel report. As part of the Final Written Warning, you are being provided a copy of AstraZeneca’s Work Expectations for Sales Professionals and you are expected to adhere to all the expectations for Sales Professionals. Revised 1/17 AstraZeneca-000351 Sandra Kurt, Summit County Clerk of Courts CV-2021-09-2905 MICHAEL, KATHRYN 09/16/2022 10:56:31 AM MOPP Page 19 of 42 We must not lose sight of our fundamental commitment of doing business the right way. Every employee with AstraZeneca is expected to always do the right thing, not just the easy thing – and to be motivated, empowered and supported with every action. At this time, it has been determined that your behaviors and actions are not in alignment with AstraZeneca’s minimum Work Expectations for Sales Professionals. In addition, we expect all employees to conduct themselves in a professional manner in accordance with AstraZeneca’s Standards of Conduct policy (a copy of this policy is attached for your reference): x Professionalism, honesty, respect for others, and adherence to policy are standards of conduct for all employees As a result, you are being placed on a Final Written Warning (FWW) with the following consequences: x Your performance rating for 2019 will be no higher than a rating of “1”. x You are not eligible for the FSIP bonus for the quarter in which this FWW was issued and for the 3 subsequent quarters (or equivalent to one year) x If applicable, any subjective behavior-based score given by your manager cannot exceed 100%. x You may not participate in recognition or rewards programs during 2019. x You are restricted from posting for promotional, advancement or developmental open positions for one year from the date of this warning. This offense raises a concern about your commitment to meeting the performance and behavioral standards required to maintain your employment. These standards help ensure productivity and ethical conduct, which are critical to our success. Accordingly, this is a final warning. You are on notice that any further conduct that violates the Work Expectations for Sales Professionals or any other company policy or conduct that otherwise indicates a failure to meet the expectations of your job, will result in the immediate termination of your employment. Signatures _________________________________________ ________________ Mike Ross, District Sales Manager Date _________________________________________ ________________ Linda Abbonizio, Sr. Employment Practices Partner Date ** Any employee comments response can be made on a separate sheet and attached to this DRF. ____________________________________ _______________ Kim Kleps Sr. PSS Date All Employees of AstraZeneca are employed at will. Nothing in this Disciplinary Record changes your status as an at-will employee. Revised 1/17 AstraZeneca-000352 Sandra Kurt, Summit County Clerk of Courts CV-2021-09-2905 MICHAEL, KATHRYN 09/16/2022 10:56:31 AM MOPP Page 20 of 42 EXHIBIT B Sandra Kurt, Summit County Clerk of Courts CV-2021-09-2905 MICHAEL, KATHRYN 09/16/2022 10:56:31 AM MOPP Page 21 of 42 Work Expectations for AstraZeneca Sales Professionals Introduction The success of our business, and the development of trust and teamwork, depends on our ability to rely on one another to meet the expectations of the job. To help our sales professionals succeed in their roles, and to protect the interests of the Company, AstraZeneca has established certain essential work expectations that all of our sales professionals are expected to know and follow. Sales Duties All sales duties must be performed in a professional manner by using AstraZeneca approved sales methods (including client planning and evaluation assessments) and exercising discretion and judgment in accordance with Company policy, particularly the Company’s Code of Conduct, Standards of Employee Conduct, Policy on Reporting Suspected Policy Violations, and other policies that may be established from time to time. Work Schedule Selling activities are to be performed for the purpose of maximizing client interactions and providing continuity in the delivery of sales services. AstraZeneca’s normal operating work week is Monday through Friday, from 8:30 a.m. to 4:45