Preview
BER-L-001458-23 12/05/2023 4:40:30 PM Pg 1 of 2 Trans ID: LCV20233542928
COSTELLO & MAINS, LLC
By: Samantha J. Leeds
Attorney I.D. No. 332202021
18000 Horizon Way, Suite 800
Mount Laurel, NJ 08054
(856) 727-9700
sleeds@costellomains.com
Attorneys for Plaintiff
:
JASMINE GUERRA, : SUPERIOR COURT OF NEW JERSEY
:
: BERGEN COUNTY - LAW DIVISION
Plaintiff, :
: CIVIL ACTION
vs. :
: DOCKET NO: BER-L-1458-23
ACHIEVING NEW HEIGHTS LLC; and :
JOHN DOES 1-5 AND 6-10, :
: NOTICE OF MOTION TO COMPEL
: DISCOVERY
Defendants. :
:
PLEASE TAKE NOTICE that on the 15th day of December, 2023, at 9:00 in the
forenoon, or as soon thereafter as counsel may be heard, the undersigned counsel for Plaintiff
will move before the Superior Court of New Jersey, Bergen County, 10 Main Street,
Hackensack, New Jersey, 07601, for an Order to Compel Discovery pursuant to Rule 4:23-5(c);
PLEASE TAKE FURTHER NOTICE that oral argument is waived unless timely
opposition to the Motion is received;
PLEASE TAKE FURTHER NOTICE that Plaintiffs will rely upon the attached
Certification of Counsel and Letter Brief in support of the Motion;
PLEASE TAKE FURTHER NOTICE that there is no trial date, ADR date or other
calendar date set in this matter; and
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PLEASE TAKE FURTHER NOTICE that a proposed form of Order is attached
hereto.
COSTELLO & MAINS, LLC
By: ___ /s/ Samantha J. Leeds________
Samantha J. Leeds
Dated: December 5, 2023
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COSTELLO & MAINS, LLC
By: Samantha J. Leeds
Attorney I.D. No. 332202021
18000 Horizon Way, Suite 800
Mount Laurel, NJ 08054
(856) 727-9700
sleeds@costellomains.com
Attorneys for Plaintiff
:
JASMINE GUERRA, : SUPERIOR COURT OF NEW JERSEY
:
: BERGEN COUNTY - LAW DIVISION
Plaintiff, :
: CIVIL ACTION
vs. :
: DOCKET NO: BER-L-1458-23
ACHIEVING NEW HEIGHTS LLC; and :
JOHN DOES 1-5 AND 6-10, :
: ORDER COMPELLING DISCOVERY
:
Defendants. :
:
THIS MATTER having been opened to the Court by Samantha J. Leeds of Costello &
Mains, LLC, attorneys for Plaintiff in the above captioned matter, requesting that the Court issue
an Order Compelling Discovery for good cause shown, and the Court having considered the
moving papers submitted in support thereto, any opposition thereto, as well as heard arguments
of counsel, if any, and for other good cause shown;
IT IS on this day of 2023, hereby ORDERED as follows:
1. Plaintiffs’ Motion to Compel Discovery is hereby GRANTED.
2. Defendants shall within five (5) days of receipt of this Order provide the
following:
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3. Plaintiff’s counsel shall serve copy of this Order upon counsel for all Defendants
within seven (7) days of receipt.
______________________________________________
J.S.C.
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COSTELLO & MAINS, LLC
By: Samantha J. Leeds
Attorney I.D. No. 332202021
18000 Horizon Way, Suite 800
Mount Laurel, NJ 08054
(856) 727-9700
sleeds@costellomains.com
Attorneys for Plaintiff
:
JASMINE GUERRA, : SUPERIOR COURT OF NEW JERSEY
:
Plaintiff, : BERGEN COUNTY - LAW DIVISION
:
vs. : CIVIL ACTION
:
ACHIEVING NEW HEIGHTS LLC; and : DOCKET NO: BER-L-1458-23
JOHN DOES 1-5 AND 6-10, :
:
Defendants. : CERTIFICATION OF SAMANTHA J.
: LEEDS
:
I, Samantha J. Leeds, being of due age, do hereby certify and affirm as follows:
1. I am an attorney at law licensed to practice in the State of New Jersey and I am an
associate counsel with the law firm of Costello & Mains, LLC, attorneys for the Plaintiff in this
action. As such, I am fully familiar with the facts stated herein.
2. On or about March 24, 2023, Plaintiff’s served upon Defendants First Set of
Interrogatories to Defendants and First Request for Production of Documents to Defendants.
3. True and correct copies of Plaintiff’s First Set of Interrogatories to Defendants
and First Request for Production of Documents to Defendants are attached hereto as Exhibit
“A” and “B” respectively.
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4. On or about April 22, 2023, Defendants answered Plaintiff’s First Request for
Production of Documents. A true and correct copy of Defendants’ Answers to Plaintiff’s First
Request for Production of Documents is attached hereto as Exhibit “C.”
5. On or about May 18, 2023, Defendants answered Plaintiff’s First Set of
Interrogatories to Defendants. A true and correct copy of Defendant’s Answers to Plaintiff’s First
Set of Interrogatories to Defendants is attached hereto as Exhibit “D.”
6. On or about June 26, 2023, Plaintiff served upon Defendants Second Set of
Interrogatories to Defendants and Second Request for Production of Documents to Defendants.
True and correct copies of Plaintiff’s Second Set of Interrogatories to Defendants and Second
Request for Production of Documents to Defendants are attached hereto as Exhibit “E.”
7. By correspondence dated August 11, 2023, Plaintiffs advised Defendants of
various deficiencies within their discovery responses and requested a reply within 7 days to
avoid the necessity of motion practice. A copy of the August 11, 2023 correspondence is
attached hereto as Exhibit “F.”
8. On or about August 16, 2023, Defendants submitted Amended Responses to
Plaintiff’s First Request for Production of Documents. A true and correct copy of Defendants’
Amended Responses to Plaintiff’s First Request for Production of Documents is attached hereto
as Exhibit “G.”
9. On or about August 16, 2023, Defendants submitted Amended Responses to
Plaintiff’s First Set of Interrogatories to Defendants. A true and correct copy of Defendants’
Amended Responses to Plaintiff’s First Request for Production of Documents is attached hereto
as Exhibit “H.”
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10. On or about August 18, 2023, Defendants answered Plaintiff’s Second Set of
Interrogatories to Defendants. A true and correct copy of Defendant’s Answers to Plaintiff’s
Second Set of Interrogatories to Defendants is attached hereto as Exhibit “I.”
11. On or about August 18, 2023, Defendants answered Plaintiffs Second Request for
Production of Documents. A true and correct copy of Defendants’ Answers to Plaintiff’s Second
Request for Production of Documents is attached hereto as Exhibit “J.”
12. By correspondence dated September 19, 2023, Plaintiffs advised Defendants via
email of various deficiencies within their discovery responses and requested a reply to avoid the
necessity of motion practice. A copy of the September 19, 2023 correspondence is attached
hereto as Exhibit “K.”
13. In a further effort to work with the Defendant and facilitate compliance with
discovery requests, Defendant and I corresponded on October 18, 2023, but to no avail. A true
and correct copy of this correspondence is attached hereto as Exhibit “L.”
14. The discovery end date in this matter is June 23, 2024.
15. Accordingly, Plaintiffs respectfully request that the Court enter an Order to
compel Defendants to fully respond to Plaintiff’s previously served discovery.
I hereby certify that the foregoing statements are true and correct to the best of my
knowledge, information and belief. I am aware that if any of the foregoing statements are
willfully false, I am subject to punishment.
COSTELLO & MAINS, LLC
By: __/s/ Samantha J. Leeds________
Samantha J. Leeds
Dated: December 5, 2023
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COSTELLO & MAINS, LLC
By: Samantha J. Leeds
Attorney I.D. No. 332202021
18000 Horizon Way, Suite 800
Mount Laurel, NJ 08054
(856) 727-9700
sleeds@costellomains.com
Attorneys for Plaintiff
:
JASMINE GUERRA, : SUPERIOR COURT OF NEW JERSEY
Plaintiff, :
: BERGEN COUNTY - LAW DIVISION
:
vs. : CIVIL ACTION
:
: DOCKET NO: BER-L-1458-23
ACHIEVING NEW HEIGHTS LLC; and :
JOHN DOES 1-5 AND 6-10, :
:
Defendants. :
:
:
PLAINTIFF'S BRIEF IN OPPOSITION TO DEFENDANTS' MOTION TO ENTER A
PROTECTIVE ORDER AND PLAINTIFF’S CROSS-MOTION TO COMPEL DISCOVERY
By: Samantha J. Leeds, Esquire
Date: December 5, 2023
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I. INTRODUCTION
Plaintiff, Jasmine Guerra, through counsel, submits this Brief in opposition to Defendants
Motion to Enter a Protective Order and Cross-Motion to Compel Discovery. This is the second
time the Defendant has filed a motion for a protective order without citing a legal basis for its
motion and without having proposed a confidentiality agreement to which the parties could
stipulate. While Plaintiff would agree to a confidentiality agreement, if one were proposed, the
Defendant seeks to avoid providing necessary comparator information all together. For those
reasons, the Court should deny Defendant’s motion.
Additionally, Plaintiff, files a cross motion to compel discovery, as the Defendant has
failed to respond to several interrogatories and requests for production. Plaintiff has made a good
faith effort to explain the deficiencies to the Defendant and remedy them. Nonetheless,
Defendant refuses to respond, despite having no legal basis for such refusal. Therefore, Plaintiff
asks this court to grant her cross motion to compel discovery.
II. STATEMENT OF FACTS
Defendant seeks a Protective order preventing Plaintiff from obtaining certain
information from Defendant’s personnel files, claiming such information is “confidential.”
However, Plaintiff, Jasmine Guerra, brings a claim against the Defendants alleging disability
discrimination and retaliation. Plaintiff alleges that the Defendant unlawfully failed to
accommodate her, and retaliated against her for requesting an accommodation as was her right
under NJLAD by reducing the Plaintiff’s hours and thereby her income. In the interrogatories
and requests for production Plaintiff has propounded on the Defendant, Plaintiff seeks
information regarding the manner in which the Defendant has treated other similarly situated
employees- comparator information.
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While the defendant has provided redacted portions of the personnel files, it has redacted
comparator information related to disabilities, accommodations, and wages. Plaintiff has made a
good effort to clarify the request, and explain the grounds on which it is discoverable. (see
Certification and Exhibits).
Rather than provide the discovery and the proper responses, the Defendants seeks a
Protective Order so that it may withhold this comparator information. Plaintiff has filed a cross
motion to compel discovery.
III. LEGAL ARGUMENT
While the Plaintiff would readily agree to stipulate to a Confidentiality Agreement, the
Defendant has proposed no such agreement, Instead, the Defendant’s aim is to withhold
comparator information all together, citing “confidentiality”. But, Defendant’s position
contradicts the broad interpretation of discovery laid out in N.J. Ct. R. § 4:10-2.
While privileged information is not discoverable, the Defendant conflates
“confidentiality,” with privilege. While there is an interest in protecting confidentiality,
confidentiality does not outweigh the interest in arriving at truth through the adversarial process.
Payton v. New Jersey TPK Auth., 148 N.J. 524, 543-44 (1997). Defendant’s wish to withhold
the information in question prohibits the Plaintiff from presenting her case and hinders this
Court’s mission to arrive at truth. Id. Therefore, the Court should deny the Defendant’s motion
and grant the Plaintiff’s cross motion to compel discovery.
1. The Court should Deny the Motion to Enter Protective Order
This Court should deny the Defendant’s Motion to Enter a Protective Order preventing
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Discovery of comparator information as it relates to wages and accommodations/ requests for
accommodations made by similarly situated employees. This information is discoverable and is
crucial to the Plaintiff’s ability to present her claim.
The Defendant may have reason to have concern for employee confidentiality. Proper
measures may be taken to protect their confidentiality. Nonetheless, a blanket protective order
essentially creating privilege where there is none, would be in violation of R § 4:10. The courts
have explicitly stated that when weighed against confidentiality, the balance as it relates to
discovery should weigh heavily in favor of disclosure. Payton, 148 N.J. at 143. For these
reasons, the court should deny the Defendant’s motion to enter a protective order.
2. Cross-Motion to Compel Discovery
The Plaintiff has properly served discovery upon the Defendants. The Defendants,
despite the Plaintiff’s repeated requests, have failed to respond to discovery requests. The
Defendant has not made any legitimate objection to the requests for discovery. Therefore, the
Plaintiff requests the Court enter an Order Compelling the Defendant to respond to the discovery
requests as listed below.
a) Plaintiff’s First Set of Interrogatories #2: 'Identify' each person who has
knowledge or relevant information concerning: any fact relating to
plaintiffs/plaintiffs' personal life, personal activities, personal relationships or
work relationships, internet activities, hobbies or interests;
Defendant responded as follows: “Defendant cannot respond to this request, which is
more properly answered by the Plaintiff herself.” The information requested is relevant and
discoverable. The fact that the Plaintiff is in possession of the information requested is not a
valid objection to producing discovery. R. § 4:10. Therefore, the Defendant should be compelled
to respond to this interrogatory.
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b) Plaintiff’s First Set of Interrogatories #9: State whether or not the
answering Defendant has any insurance which may cover any part or all of
the loss attributable to any theory or claim that plaintiff has advanced. If
so, set forth the agency, the policy number and any claims numbers
attendant to any claim the Plaintiff has advanced. Identify and attach any
declarations or other coverage documents, as well as any letters of
reservation of rights or any other correspondence concerning the
invocation of the policy and/or a response to said invocation.
The Defendant has responded to this interrogatory as follows: “Defendant has provided a
copy of its insurance policy, as well as a copy of the insurance company’s denial letter, in
response to Plaintiff’s Notice to Produce.
This information is discoverable and relevant. The Defendant has failed to state whether
this is the only insurance policy which could cover any part of this claim. For this reason, the
Defendant should be compelled to respond to this interrogatory in full.
c) Plaintiff’s First Set of Interrogatories #11: For each individual with
whom any servant, agent, employee or representative of answering
Defendant has had communication regarding the Plaintiff after Plaintiff’s
employment ended, identify the individuals concerned on both ends of the
communication, including names, addresses and telephone numbers,
present relationship to defendant, and set forth in detail the nature and
extent of the communication, why it occurred, when it occurred, how it
occurred and the substance of each communication.
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The Defendant has responded to this interrogatory as follows: “Defendant objects to this
interrogatory as vague, overbroad, and unduly burdensome. Without waiving such objection, the
interrogatory is not relevant in as much as Plaintiff’s employment has not ended.”
The Plaintiff’s employment has ended. In fact, Defendant mentioned this in its amended
responses to Plaintiff’s First Set of Interrogatories. Since the Plaintiff’s employment ended, the
Defendant has deposed the plaintiff. At this Deposition, Defendant questioned Plaintiff about a
communication that would have been responsive to this request, but that it did not produce prior
to the Deposition. For these reasons, defendant should amend its response. The Court should
therefore compel the Defendant to respond to this interrogatory.
d) Plaintiff’s First Set of Interrogatories #57: Please identify any and all
employees who require accommodations for a disability. Please identify
and explain in detail the accommodations acquired. Please identify and
explain in detail, attaching documentation where available, whether or not
such accommodation was provided by the Defendant for any individual
who requested an accommodation based on a disability. Please identify,
attaching documentation where available, whether or not that employee
currently works for the Defendant, and if the employee was separated
from employment, whether the separation was voluntary or involuntary.
For any individual who requested an accommodation, please state what, if
any, changes were made to that individual's job title, including but not
limited to, job responsibilities and job description.
The Defendant has responded to this interrogatory as follows: “Plaintiff does presently
have any employees requiring accommodation for disability.”
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The Defendant has failed to respond to this question. The interrogatory does not ask
about the Plaintiff’s employees, rather it requests information about the Defendant’s employees.
Further, the parties have communicated several times regarding this interrogatory wherein the
Plaintiff has clarified that the Plaintiff seeks records spanning the relevant time period regarding
any employees who have requested accommodations and any documentation which relates to the
same. Plaintiff has made all attempts to clarify the request to the Defendant. Nonetheless, the
Defendant refuses to comply. The information requested is not privileged, and is otherwise
discoverable. This Court should order the Defendant to comply with Discovery requests.
e) Plaintiff’s First Set of Interrogatories #59: Please identify any and
explain in detail, attaching documentation where available, each and every
employee who received a pay decrease between January 2021 and January
2023. For each individual identified, please identify and explain in detail,
attaching documentation where available, each and every reason why a
pay decrease occurred, the decision making process for instituting the pay
decrease, and each and every person who was involved in the pay decrease
decision making process.
The Defendant has responded to this interrogatory as follows: “Defendant objects to this
interrogatory on the basis of the confidentiality of financial information relating to its
employees.”
Once again, the information requested is not privileged and is otherwise discoverable.
Although the Defendant cites confidentiality as a reason for refusing to respond to discovery
requests, confidentiality does not equal privilege. Defendant has not cited any legal basis for
refusing to comply with the discovery request. For that reason, the Court should compel the
Defendant to respond.
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f) Plaintiff’s Second Set of Interrogatories #9: Please identify each and
every employee of whom the Defendant requested partake in a medical
exam or provide documentation outside of the annual medical exam
required for regulatory compliance.
The Defendant has responded to this interrogatory as follows: “Defendant objects to this
question on the basis of confidentiality of medical information of other employees.”
The information requested is discoverable and not privileged for the same reasons as
explained above. Because the information is discoverable and relevant, this Court should
compel the Defendant to respond accordingly.
g) Plaintiff’s Second Set of Interrogatories #10: For each employee
identified in the previous question, please explain why these employees
were required to participate in these medical exams or provide additional
medical documentation, to the extent that information is not privileged.
The Defendant has responded to this interrogatory as follows: “Defendant objects to this
question on the basis of confidentiality of medical information of other employees.”
The information requested in this interrogatory is discoverable and not privileged as
explained in the previous paragraph. For the same reasons as previously described, the Court
should compel the Defendant to respond to this interrogatory.
IV. CONCLUSION
The Defendant is not entitled to a Protective Order regarding the comparator information
requested by the Plaintiff in the discovery requests. The information is discoverable and it is not
privileged. While the Plaintiff cites confidentiality as the reason it refuses to comply with
discovery demands, confidentiality in and of itself does not create a privilege. The defendant
seeks to use a protective order to create privilege where there is none. But this hinders the ability
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of the Court to arrive at truth through this adversarial process. Therefore, the Court should deny
the Defendant’s motion.
Similarly, the Defendant has refused to comply with discovery requests, without citing a
legal basis for doing so. This information requested is relevant, discoverable, and is absolutely
vital to the Plaintiff’s ability to prove and present her claim. For all of the reasons stated above,
the Court should deny the Defendant’s Motion to Enter a Protective Order and should grant the
Plaintiff’s Cross-Motion to Compel Discovery.
COSTELLO & MAINS, LLC
By: __ /s/ Samantha J. Leeds __
Samantha J. Leeds
Dated: December 5, 2023
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COSTELLO & MAINS, LLC
By: Samantha J. Leeds
Attorney I.D. No. 332202021
18000 Horizon Way, Suite 800
Mount Laurel, NJ 08054
(856) 727-9700
sleeds@costellomains.com
Attorneys for Plaintiff
:
JASMINE GUERRA, : SUPERIOR COURT OF NEW JERSEY
:
: BERGEN COUNTY - LAW DIVISION
Plaintiff, :
: CIVIL ACTION
vs. :
ACHIEVING NEW HEIGHTS LLC; and : DOCKET NO: BER-L-1458-23
JOHN DOES 1-5 AND 6-10, :
:
: CERTIFICATION OF SERVICE
Defendants. :
:
:
I, Taiwo Bolaji, being of due age, hereby certify and affirm as follows:
1. I am a Legal Assistant employed by the law firm Costello & Mains, LLC.
2. On, December 5, 2023, at Attorney Leeds’s Direction, I served the foregoing
documents via E-Mail and U.S. Mail upon all persons as they appear below:
Jeffrey A. Bronster, Esq.
17 Wendell Place
Fairview, NJ 07022
3. A courtesy copy of the Motion and all attached documents will be mailed to the
Judge assigned to hear this Motion.
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I hereby certify the foregoing is true and correct. I am aware that if any of the foregoing
statements are willfully false, I am subject to punishment.
COSTELLO & MAINS, LLC
/s/ Taiwo Bolaji
Taiwo Bolaji
Dated: December 5, 2023
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EXHIBIT “A”
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COSTELLO & MAINS, LLC
By: Samantha Leeds
Attorney I.D. No. 332202021
18000 Horizon Way, Suite 800
Mount Laurel, NJ 08054
(856) 727-9700
sleeds@costellomains.com
Attorneys for Plaintiff
JASMINE GUERRA, SUPERIOR COURT OF NEW JERSEY
BERGEN COUNTY - LAW DIVISION
Plaintiff, CIVIL ACTION
vs. DOCKET NO: BER-L-1458-23
ACHIEVING NEW HEIGHTS LLC; and PLAINTIFF’S FIRST SET OF
JOHN DOES 1-5 AND 6-10, INTERROGATORIES DIRECTED TO
Defendants. DEFENDANTS
Kindly respond to the attached interrogatories and requests for production of documents
within the time prescribed by Court Rule.
COSTELLO & MAINS, LLC
By: __ /s/ Samantha J. Leeds __
Samantha J. Leeds
DATED: March 22, 2023
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DEFINITIONS
Unless otherwise clearly indicated, the following words, as used herein, shall have the
meaning shown:
1. “Person” or “persons” means all individuals and entities, including without
limitation individuals, representative persons, associations, companies, corporations,
partnerships, estates, public agencies, departments, divisions, bureaus and boards.
2. “Document” includes, without limitation, the original and each copy of each and
any writing, email, entry on a social networking site (including, but not limited to, 'Twitter,'
'Facebook, and 'Myspace,' text message, data file, evidence of indebtedness, memorandum,
letter, correspondence, telegram, note, minutes, contract, agreement, inter-office communication,
bulletin, circular procedure, pamphlet, photograph, study, notice, summary, invoice, diagram,
plan, drawing, diary, record, telephone message, chart, schedule, entry, print, representation,
report and any tangible items or thing of written, readable, graphic, audible, or visual material, of
any kind or character, whether handwritten, typed, Xeroxed, photographed, copied, microfilmed,
microcarded, or transcribed by any means, including, without limitation, each interim as well as
final draft.
3. “Communication” means any and all written and non-written forms of expression
or communication whether face-to-face, by telephone, in email, on or through a website, in text
mail, in 'twitter,' 'Facebook,' 'Myspace' and similar social networking formats, in conference, by
document, or otherwise. “Oral communication” means every communication other than written
communication.
4. “Identify,” when referring to a natural person, means to provide the following
information:
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(a) his/her full name and date of birth;
(b) present or last known address;
(c) the last date when such address was known or believed to be correct;
(d) his/her present or last known business affiliation, title and occupation;
(e) the extent to which, and the foundational information for, the claim that
the person is part of the litigation control group, or is represented by any
attorney or law firm representing any defendant.
5. “Identify,” when referring to a corporation, means to provide the corporation’s
full name, each state in which it is incorporated, and the address of its principal place of
business, and to identify every person who owns or controls more than 10% of the common
stock of such corporation and state the percentage of such stock he/she owns.
6. “Identify,” when referring to an entity other than a natural person or corporation
(e.g., association, partnership, limited partnership, etc.) means to provide an official name or
designation of each such entity and the address of its principal place of business, and to identify
every person who owns more than 10% of the equity interests of such entity and to state the
percentage interest of equity he/she owns.
7. “Identify,” when referring to any document, means to:
(a) state its date;
(b) state its name or title (if any);
(c) state the type of document (e.g., letter, memorandum, telegram, etc.);
(d) describe its general subject matter and contents;
(e) identify its author or originator and its addressee, if any, and all persons to
whom copies of the document were to be or have been sent;
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(f) identify its present location and custodial; and
(g) if the document is no longer in your possession, identify its last known
custodian, describe the circumstances under which it passed from your
control to that person and identify each person having knowledge of such
circumstances and/or the present location of the document.
8. “Identify,” when referring to an oral communication, means to:
(a) state the date and means of each oral communication;
(b) state the place where each oral communication occurred;
(c) identify each person participating in or listening to each oral
communication;
(d) identify each person(s) present at the time of each oral communication;
(e) if the oral communication was by telephone;
(1) identify the place where each person participating in the call was
located at the time of the call;
(2) state the telephone number of every telephone used by every
participant in the call;
(f) summarize the substance of each oral communication; and
(g) identify every document that is a transcript of or otherwise sets forth,
summarizes, relates, or refers to each oral communication.
9. “Identify,” when referring to any written communication, means to:
(a) identify each person making or receiving each written communication;
(b) identify each document that contains, sets forth, or constitutes or relates or
refers to each written communication; and
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(c) summarize the substance of each written communication.
10. The term “identify” as used herein in connection with an “act” means:
(a) state the date and place of the act;
(b) state the person acting, the person for whom the act was performed, the
person against whom the act was directed, and those present when the act
was performed; and
(c) describe in detail the act.
11. “Defendant” means each and any of the defendants in this action, including every
individual defendant, whether acting in his/her individual capacity or as agent for another, and
every predecessor and successor in interest to every corporate defendant, and every director,
officer, employee, and agent and any other representative acting on behalf of any defendant.
12. “Plaintiff” means any and/or all plaintiffs in this action, and every director,
officer, employee, and agent and any other representative acting on its behalf.
13. “Relevant time period” means the period from one year prior to any event alleged
in the Complaint filed herein to the date these interrogatories are answered.
14. The word “act” as used herein includes acts of every kind and description.
15. The word “complaint” as used herein refers to the complaint filed on behalf of
plaintiff commencing the instant action or any amended complaint(s) filed thereafter.
16. The conjunctions “and” and “or” as used herein shall be interpreted conjunctively
and shall not be interpreted disjunctively to exclude any information otherwise within the scope
of any interrogatory.
17. The word “date” as used herein means the exact day, month and year, if
ascertainable, or, if not, your best approximation thereof.
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18. The word “describe” as used herein means to state the date and identify the
persons involved in the transaction, communication, event or occurrence in question, and to state
the nature and subject matter of the transaction, communication, event or occurrence in question.
19. The term “describe in detail” as used herein means:
(a) describe fully any reference to underlying facts, if possible, rather than
just by ultimate facts or conclusions of fact or law; and
(b) particularize as to:
(1) time;
(2) place; and
(3) manner.
20. As used herein, any reference to any corporate entity shall be deemed to include
that corporate entity or any predecessor, successor or affiliated corporate entity.
21. As used herein, the term “advice” shall mean any demand, suggestion, opinion,
indication or requirement that any person(s), partnership, corporation, or other entity take any
action or refrain from taking any action.
22. The terms “identify” or “describe” as used herein in connection with the term
“advice” means:
(a) state the date and place the advice was given;
(b) state to whom the advice was given, by whom the advice was given and
all persons present when the advice was given;
(c) the substance of the advice, recalling the exact words to the extent
possible;
(d) if the advice was wholly or partly comprised of oral communications, or
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resulted in any oral communications, identify all such communication;
(e) if the advice was wholly or partly written or reduced to writing, or resulted
in the production of any written documents, identify all said documents or
documents where said advice was written or in which said advice was
reduced to writing.
23. The terms “agreement” and “contract” as used herein shall be interchangeable and
shall both be construed to have their broadest meaning. The terms “identify” as used herein in
connection with an “agreement” means:
(a) if the agreement is claimed to have been express and in writing, so state:
and
(1) identify the documents alleged to comprise the agreement;
(2) identify the persons who were parties to the agreement, and in the
case of a person or persons other than an individual, furnish the
name and address of the individual purporting to act for such
person or persons; and
(3) set forth the subject matter of the agreement.
(b) if the agreement is claimed to have been express or oral, so state, and
(1) furnish the date and place of each conversation comprising the
agreement;
(2) furnish the name and address of the individual engaging in each
conversation, the date and place of which is furnished in the
answer to (1) hereof;
(3) identify the person for whom each individual listed in (2) hereof is
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alleged to have acted; and
(4) set forth the substance of the agreement.
(c) if the agreement is claimed to have been express and partly in writing and
partly oral, so state; and
(1) as to the written part, furnish the information requested in 23(a)
hereof; and
(2) as to the oral part, furnish the information requested in 23(b)
hereof;
(d) if the agreement is claimed to be implied from acts, so state; and
(1) identify each act-giving rise to the inference of an implied
agreement.
(e) if the agreement is claimed partly to be implied from acts and partly to
have been in writing, so state; and
(1) as to the implied part, furnish the information requested in 23(d)
hereof; and
(2) as to the written part, furnish the information requested in 23(a)
hereof.
(f) if the agreement is claimed partly to be implied from acts and partly to
have been oral, so state; and
(1) as to the implied part, furnish the information requested in 23(b)
hereof; and
(2) as to the oral part, furnish the information requested in 23(b)
hereof.
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(g) if the agreement is claimed partly to have been implied from acts, partly to
have been in writing, and partly to have been oral, so state; and
(1) as to the implied part, furnish the information requested in 23(d)
hereof;
(2) as to the written part, furnish the information requested in 23(b)
hereof; and
(3) as to the oral part, furnish the information requested in 23(b)
hereof.
24. As used herein, the terms “defendant,” “you,” “your” or “yourself” refer to the
answering defendant or any agent or employee of the answering defendant.
25. As used herein, “state the basis” or “state the manner” means to describe fully all
of the facts which you believe support your position or contention, to identify each factor
considered by you when arriving at such position or contention, and to state why each such
factor was (or was not) relied upon by you in arriving at such position or contention.
26. As used herein, the term “employee” shall include an agent, director, officer, or
any person who performs services for remuneration for any person, partnership or corporation.
27. As used herein, “including” is defined to mean “including but not limited to.”
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INSTRUCTIONS
1. All answers should be based upon all information available to the answering
party, including its agents, within the meaning of R.4:17-4.
2. All answers should be supplemented or amended in accordance with the
requirements of R. 4:17-7.
3. If any information or document is omitted or withheld from an answer by reason
of a claim of privilege, the answer should describe such information or document with sufficient
specificity to establish the basis of the privilege and should state all factual and legal bases for
the allegation that such information or document is privileged.
4. Unless otherwise clearly specified, all interrogatories refer to the relevant time
period as defined above. If an answer varies during the relevant time period, all the various
answers for the relevant time period should be given, with a specification of the portion of the
relevant time period to which each such answer applies.
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INTERROGATORIES
1. Set forth a complete job history of each plaintiff, setting forth dates of hire and/or
separation, promotion, job title change, job description change, benefits change and/or
compensation change. Also include any and all documentation and factual information relating
to bonus items or income during employment.
2. 'Identify' each person who has knowledge or relevant information concerning:
(a) any claim of the plaintiff(s);
(b) any defense offered in the answer;
(c) any fact relating to plaintiff’s/plaintiffs’ personal life, personal activities,
personal relationships or work relationships, internet activities, hobbies or interests;
(d) any fact or information relating to plaintiff’s/plaintiffs’ medical
information. Set forth a summary of the factual information you believe the person possesses;
(e) the reason plaintiff(s) is/are no longer employed by defendant, if that be
the case, as well as the communications, decisions and deliberations concerning the
plaintiffs'/plaintiff's separation from employment.
For purposes of this interrogatory, by “identify” we request that you observe the
Instructions given heretofore, and that you also provide: supply that person’s employment
relationship to you, including date of hire and/or separation, if applicable, job title held, the
person’s addresses (residential and business), cell phone numbers, home numbers, work
numbers, social security numbers and dates of birth, if you know them, and how the person came
to possess the information requested in this interrogatory.
If you contend that any individual identified in response to this interrogatory is a member
of the “litigation control group” of the answering party—as defined by RPC 1.13(a), and as
defined in Michaels v. Woodland, 988 F.Supp. 468, 472 (D.N.J. 1997)—and/or is so closely
associated with the answering party that it, for legal purposes, is the answering party, his/her
contact information need not be supplied. Instead, you may state that the person may be
contacted through counsel for the answering party and state whether or not answering counsel
will supply that person for deposition pursuant to a notice to take deposition.
3. For each individual identified in response to interrogatory number 2 above, set
forth in detail the knowledge or information that you believe he/she possesses.
4. For each plaintiff who is no longer employed by your company:
(a) set forth when and how the employment relationship ended;
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(b) identify each person who participated in the decision to end the
relationship, setting forth the nature and extent of his/her involvement in the determination
and/or execution or enforcement of the decision; and
(c) set forth any and all facts or knowledge pertinent to the separa
Preview
BER-L-001458-23 12/05/2023 4:40:30 PM Pg 1 of 2 Trans ID: LCV20233542928 COSTELLO & MAINS, LLC By: Samantha J. Leeds Attorney I.D. No. 332202021 18000 Horizon Way, Suite 800 Mount Laurel, NJ 08054 (856) 727-9700 sleeds@costellomains.com Attorneys for Plaintiff : JASMINE GUERRA, : SUPERIOR COURT OF NEW JERSEY : : BERGEN COUNTY - LAW DIVISION Plaintiff, : : CIVIL ACTION vs. : : DOCKET NO: BER-L-1458-23 ACHIEVING NEW HEIGHTS LLC; and : JOHN DOES 1-5 AND 6-10, : : NOTICE OF MOTION TO COMPEL : DISCOVERY Defendants. : : PLEASE TAKE NOTICE that on the 15th day of December, 2023, at 9:00 in the forenoon, or as soon thereafter as counsel may be heard, the undersigned counsel for Plaintiff will move before the Superior Court of New Jersey, Bergen County, 10 Main Street, Hackensack, New Jersey, 07601, for an Order to Compel Discovery pursuant to Rule 4:23-5(c); PLEASE TAKE FURTHER NOTICE that oral argument is waived unless timely opposition to the Motion is received; PLEASE TAKE FURTHER NOTICE that Plaintiffs will rely upon the attached Certification of Counsel and Letter Brief in support of the Motion; PLEASE TAKE FURTHER NOTICE that there is no trial date, ADR date or other calendar date set in this matter; and BER-L-001458-23 12/05/2023 4:40:30 PM Pg 2 of 2 Trans ID: LCV20233542928 PLEASE TAKE FURTHER NOTICE that a proposed form of Order is attached hereto. COSTELLO & MAINS, LLC By: ___ /s/ Samantha J. Leeds________ Samantha J. Leeds Dated: December 5, 2023 2 BER-L-001458-23 12/05/2023 4:40:30 PM Pg 1 of 2 Trans ID: LCV20233542928 COSTELLO & MAINS, LLC By: Samantha J. Leeds Attorney I.D. No. 332202021 18000 Horizon Way, Suite 800 Mount Laurel, NJ 08054 (856) 727-9700 sleeds@costellomains.com Attorneys for Plaintiff : JASMINE GUERRA, : SUPERIOR COURT OF NEW JERSEY : : BERGEN COUNTY - LAW DIVISION Plaintiff, : : CIVIL ACTION vs. : : DOCKET NO: BER-L-1458-23 ACHIEVING NEW HEIGHTS LLC; and : JOHN DOES 1-5 AND 6-10, : : ORDER COMPELLING DISCOVERY : Defendants. : : THIS MATTER having been opened to the Court by Samantha J. Leeds of Costello & Mains, LLC, attorneys for Plaintiff in the above captioned matter, requesting that the Court issue an Order Compelling Discovery for good cause shown, and the Court having considered the moving papers submitted in support thereto, any opposition thereto, as well as heard arguments of counsel, if any, and for other good cause shown; IT IS on this day of 2023, hereby ORDERED as follows: 1. Plaintiffs’ Motion to Compel Discovery is hereby GRANTED. 2. Defendants shall within five (5) days of receipt of this Order provide the following: BER-L-001458-23 12/05/2023 4:40:30 PM Pg 2 of 2 Trans ID: LCV20233542928 3. Plaintiff’s counsel shall serve copy of this Order upon counsel for all Defendants within seven (7) days of receipt. ______________________________________________ J.S.C. 2 BER-L-001458-23 12/05/2023 4:40:30 PM Pg 1 of 3 Trans ID: LCV20233542928 COSTELLO & MAINS, LLC By: Samantha J. Leeds Attorney I.D. No. 332202021 18000 Horizon Way, Suite 800 Mount Laurel, NJ 08054 (856) 727-9700 sleeds@costellomains.com Attorneys for Plaintiff : JASMINE GUERRA, : SUPERIOR COURT OF NEW JERSEY : Plaintiff, : BERGEN COUNTY - LAW DIVISION : vs. : CIVIL ACTION : ACHIEVING NEW HEIGHTS LLC; and : DOCKET NO: BER-L-1458-23 JOHN DOES 1-5 AND 6-10, : : Defendants. : CERTIFICATION OF SAMANTHA J. : LEEDS : I, Samantha J. Leeds, being of due age, do hereby certify and affirm as follows: 1. I am an attorney at law licensed to practice in the State of New Jersey and I am an associate counsel with the law firm of Costello & Mains, LLC, attorneys for the Plaintiff in this action. As such, I am fully familiar with the facts stated herein. 2. On or about March 24, 2023, Plaintiff’s served upon Defendants First Set of Interrogatories to Defendants and First Request for Production of Documents to Defendants. 3. True and correct copies of Plaintiff’s First Set of Interrogatories to Defendants and First Request for Production of Documents to Defendants are attached hereto as Exhibit “A” and “B” respectively. BER-L-001458-23 12/05/2023 4:40:30 PM Pg 2 of 3 Trans ID: LCV20233542928 4. On or about April 22, 2023, Defendants answered Plaintiff’s First Request for Production of Documents. A true and correct copy of Defendants’ Answers to Plaintiff’s First Request for Production of Documents is attached hereto as Exhibit “C.” 5. On or about May 18, 2023, Defendants answered Plaintiff’s First Set of Interrogatories to Defendants. A true and correct copy of Defendant’s Answers to Plaintiff’s First Set of Interrogatories to Defendants is attached hereto as Exhibit “D.” 6. On or about June 26, 2023, Plaintiff served upon Defendants Second Set of Interrogatories to Defendants and Second Request for Production of Documents to Defendants. True and correct copies of Plaintiff’s Second Set of Interrogatories to Defendants and Second Request for Production of Documents to Defendants are attached hereto as Exhibit “E.” 7. By correspondence dated August 11, 2023, Plaintiffs advised Defendants of various deficiencies within their discovery responses and requested a reply within 7 days to avoid the necessity of motion practice. A copy of the August 11, 2023 correspondence is attached hereto as Exhibit “F.” 8. On or about August 16, 2023, Defendants submitted Amended Responses to Plaintiff’s First Request for Production of Documents. A true and correct copy of Defendants’ Amended Responses to Plaintiff’s First Request for Production of Documents is attached hereto as Exhibit “G.” 9. On or about August 16, 2023, Defendants submitted Amended Responses to Plaintiff’s First Set of Interrogatories to Defendants. A true and correct copy of Defendants’ Amended Responses to Plaintiff’s First Request for Production of Documents is attached hereto as Exhibit “H.” BER-L-001458-23 12/05/2023 4:40:30 PM Pg 3 of 3 Trans ID: LCV20233542928 10. On or about August 18, 2023, Defendants answered Plaintiff’s Second Set of Interrogatories to Defendants. A true and correct copy of Defendant’s Answers to Plaintiff’s Second Set of Interrogatories to Defendants is attached hereto as Exhibit “I.” 11. On or about August 18, 2023, Defendants answered Plaintiffs Second Request for Production of Documents. A true and correct copy of Defendants’ Answers to Plaintiff’s Second Request for Production of Documents is attached hereto as Exhibit “J.” 12. By correspondence dated September 19, 2023, Plaintiffs advised Defendants via email of various deficiencies within their discovery responses and requested a reply to avoid the necessity of motion practice. A copy of the September 19, 2023 correspondence is attached hereto as Exhibit “K.” 13. In a further effort to work with the Defendant and facilitate compliance with discovery requests, Defendant and I corresponded on October 18, 2023, but to no avail. A true and correct copy of this correspondence is attached hereto as Exhibit “L.” 14. The discovery end date in this matter is June 23, 2024. 15. Accordingly, Plaintiffs respectfully request that the Court enter an Order to compel Defendants to fully respond to Plaintiff’s previously served discovery. I hereby certify that the foregoing statements are true and correct to the best of my knowledge, information and belief. I am aware that if any of the foregoing statements are willfully false, I am subject to punishment. COSTELLO & MAINS, LLC By: __/s/ Samantha J. Leeds________ Samantha J. Leeds Dated: December 5, 2023 BER-L-001458-23 12/05/2023 4:40:30 PM Pg 1 of 9 Trans ID: LCV20233542928 COSTELLO & MAINS, LLC By: Samantha J. Leeds Attorney I.D. No. 332202021 18000 Horizon Way, Suite 800 Mount Laurel, NJ 08054 (856) 727-9700 sleeds@costellomains.com Attorneys for Plaintiff : JASMINE GUERRA, : SUPERIOR COURT OF NEW JERSEY Plaintiff, : : BERGEN COUNTY - LAW DIVISION : vs. : CIVIL ACTION : : DOCKET NO: BER-L-1458-23 ACHIEVING NEW HEIGHTS LLC; and : JOHN DOES 1-5 AND 6-10, : : Defendants. : : : PLAINTIFF'S BRIEF IN OPPOSITION TO DEFENDANTS' MOTION TO ENTER A PROTECTIVE ORDER AND PLAINTIFF’S CROSS-MOTION TO COMPEL DISCOVERY By: Samantha J. Leeds, Esquire Date: December 5, 2023 BER-L-001458-23 12/05/2023 4:40:30 PM Pg 2 of 9 Trans ID: LCV20233542928 I. INTRODUCTION Plaintiff, Jasmine Guerra, through counsel, submits this Brief in opposition to Defendants Motion to Enter a Protective Order and Cross-Motion to Compel Discovery. This is the second time the Defendant has filed a motion for a protective order without citing a legal basis for its motion and without having proposed a confidentiality agreement to which the parties could stipulate. While Plaintiff would agree to a confidentiality agreement, if one were proposed, the Defendant seeks to avoid providing necessary comparator information all together. For those reasons, the Court should deny Defendant’s motion. Additionally, Plaintiff, files a cross motion to compel discovery, as the Defendant has failed to respond to several interrogatories and requests for production. Plaintiff has made a good faith effort to explain the deficiencies to the Defendant and remedy them. Nonetheless, Defendant refuses to respond, despite having no legal basis for such refusal. Therefore, Plaintiff asks this court to grant her cross motion to compel discovery. II. STATEMENT OF FACTS Defendant seeks a Protective order preventing Plaintiff from obtaining certain information from Defendant’s personnel files, claiming such information is “confidential.” However, Plaintiff, Jasmine Guerra, brings a claim against the Defendants alleging disability discrimination and retaliation. Plaintiff alleges that the Defendant unlawfully failed to accommodate her, and retaliated against her for requesting an accommodation as was her right under NJLAD by reducing the Plaintiff’s hours and thereby her income. In the interrogatories and requests for production Plaintiff has propounded on the Defendant, Plaintiff seeks information regarding the manner in which the Defendant has treated other similarly situated employees- comparator information. BER-L-001458-23 12/05/2023 4:40:30 PM Pg 3 of 9 Trans ID: LCV20233542928 While the defendant has provided redacted portions of the personnel files, it has redacted comparator information related to disabilities, accommodations, and wages. Plaintiff has made a good effort to clarify the request, and explain the grounds on which it is discoverable. (see Certification and Exhibits). Rather than provide the discovery and the proper responses, the Defendants seeks a Protective Order so that it may withhold this comparator information. Plaintiff has filed a cross motion to compel discovery. III. LEGAL ARGUMENT While the Plaintiff would readily agree to stipulate to a Confidentiality Agreement, the Defendant has proposed no such agreement, Instead, the Defendant’s aim is to withhold comparator information all together, citing “confidentiality”. But, Defendant’s position contradicts the broad interpretation of discovery laid out in N.J. Ct. R. § 4:10-2. While privileged information is not discoverable, the Defendant conflates “confidentiality,” with privilege. While there is an interest in protecting confidentiality, confidentiality does not outweigh the interest in arriving at truth through the adversarial process. Payton v. New Jersey TPK Auth., 148 N.J. 524, 543-44 (1997). Defendant’s wish to withhold the information in question prohibits the Plaintiff from presenting her case and hinders this Court’s mission to arrive at truth. Id. Therefore, the Court should deny the Defendant’s motion and grant the Plaintiff’s cross motion to compel discovery. 1. The Court should Deny the Motion to Enter Protective Order This Court should deny the Defendant’s Motion to Enter a Protective Order preventing 2 BER-L-001458-23 12/05/2023 4:40:30 PM Pg 4 of 9 Trans ID: LCV20233542928 Discovery of comparator information as it relates to wages and accommodations/ requests for accommodations made by similarly situated employees. This information is discoverable and is crucial to the Plaintiff’s ability to present her claim. The Defendant may have reason to have concern for employee confidentiality. Proper measures may be taken to protect their confidentiality. Nonetheless, a blanket protective order essentially creating privilege where there is none, would be in violation of R § 4:10. The courts have explicitly stated that when weighed against confidentiality, the balance as it relates to discovery should weigh heavily in favor of disclosure. Payton, 148 N.J. at 143. For these reasons, the court should deny the Defendant’s motion to enter a protective order. 2. Cross-Motion to Compel Discovery The Plaintiff has properly served discovery upon the Defendants. The Defendants, despite the Plaintiff’s repeated requests, have failed to respond to discovery requests. The Defendant has not made any legitimate objection to the requests for discovery. Therefore, the Plaintiff requests the Court enter an Order Compelling the Defendant to respond to the discovery requests as listed below. a) Plaintiff’s First Set of Interrogatories #2: 'Identify' each person who has knowledge or relevant information concerning: any fact relating to plaintiffs/plaintiffs' personal life, personal activities, personal relationships or work relationships, internet activities, hobbies or interests; Defendant responded as follows: “Defendant cannot respond to this request, which is more properly answered by the Plaintiff herself.” The information requested is relevant and discoverable. The fact that the Plaintiff is in possession of the information requested is not a valid objection to producing discovery. R. § 4:10. Therefore, the Defendant should be compelled to respond to this interrogatory. 3 BER-L-001458-23 12/05/2023 4:40:30 PM Pg 5 of 9 Trans ID: LCV20233542928 b) Plaintiff’s First Set of Interrogatories #9: State whether or not the answering Defendant has any insurance which may cover any part or all of the loss attributable to any theory or claim that plaintiff has advanced. If so, set forth the agency, the policy number and any claims numbers attendant to any claim the Plaintiff has advanced. Identify and attach any declarations or other coverage documents, as well as any letters of reservation of rights or any other correspondence concerning the invocation of the policy and/or a response to said invocation. The Defendant has responded to this interrogatory as follows: “Defendant has provided a copy of its insurance policy, as well as a copy of the insurance company’s denial letter, in response to Plaintiff’s Notice to Produce. This information is discoverable and relevant. The Defendant has failed to state whether this is the only insurance policy which could cover any part of this claim. For this reason, the Defendant should be compelled to respond to this interrogatory in full. c) Plaintiff’s First Set of Interrogatories #11: For each individual with whom any servant, agent, employee or representative of answering Defendant has had communication regarding the Plaintiff after Plaintiff’s employment ended, identify the individuals concerned on both ends of the communication, including names, addresses and telephone numbers, present relationship to defendant, and set forth in detail the nature and extent of the communication, why it occurred, when it occurred, how it occurred and the substance of each communication. 4 BER-L-001458-23 12/05/2023 4:40:30 PM Pg 6 of 9 Trans ID: LCV20233542928 The Defendant has responded to this interrogatory as follows: “Defendant objects to this interrogatory as vague, overbroad, and unduly burdensome. Without waiving such objection, the interrogatory is not relevant in as much as Plaintiff’s employment has not ended.” The Plaintiff’s employment has ended. In fact, Defendant mentioned this in its amended responses to Plaintiff’s First Set of Interrogatories. Since the Plaintiff’s employment ended, the Defendant has deposed the plaintiff. At this Deposition, Defendant questioned Plaintiff about a communication that would have been responsive to this request, but that it did not produce prior to the Deposition. For these reasons, defendant should amend its response. The Court should therefore compel the Defendant to respond to this interrogatory. d) Plaintiff’s First Set of Interrogatories #57: Please identify any and all employees who require accommodations for a disability. Please identify and explain in detail the accommodations acquired. Please identify and explain in detail, attaching documentation where available, whether or not such accommodation was provided by the Defendant for any individual who requested an accommodation based on a disability. Please identify, attaching documentation where available, whether or not that employee currently works for the Defendant, and if the employee was separated from employment, whether the separation was voluntary or involuntary. For any individual who requested an accommodation, please state what, if any, changes were made to that individual's job title, including but not limited to, job responsibilities and job description. The Defendant has responded to this interrogatory as follows: “Plaintiff does presently have any employees requiring accommodation for disability.” 5 BER-L-001458-23 12/05/2023 4:40:30 PM Pg 7 of 9 Trans ID: LCV20233542928 The Defendant has failed to respond to this question. The interrogatory does not ask about the Plaintiff’s employees, rather it requests information about the Defendant’s employees. Further, the parties have communicated several times regarding this interrogatory wherein the Plaintiff has clarified that the Plaintiff seeks records spanning the relevant time period regarding any employees who have requested accommodations and any documentation which relates to the same. Plaintiff has made all attempts to clarify the request to the Defendant. Nonetheless, the Defendant refuses to comply. The information requested is not privileged, and is otherwise discoverable. This Court should order the Defendant to comply with Discovery requests. e) Plaintiff’s First Set of Interrogatories #59: Please identify any and explain in detail, attaching documentation where available, each and every employee who received a pay decrease between January 2021 and January 2023. For each individual identified, please identify and explain in detail, attaching documentation where available, each and every reason why a pay decrease occurred, the decision making process for instituting the pay decrease, and each and every person who was involved in the pay decrease decision making process. The Defendant has responded to this interrogatory as follows: “Defendant objects to this interrogatory on the basis of the confidentiality of financial information relating to its employees.” Once again, the information requested is not privileged and is otherwise discoverable. Although the Defendant cites confidentiality as a reason for refusing to respond to discovery requests, confidentiality does not equal privilege. Defendant has not cited any legal basis for refusing to comply with the discovery request. For that reason, the Court should compel the Defendant to respond. 6 BER-L-001458-23 12/05/2023 4:40:30 PM Pg 8 of 9 Trans ID: LCV20233542928 f) Plaintiff’s Second Set of Interrogatories #9: Please identify each and every employee of whom the Defendant requested partake in a medical exam or provide documentation outside of the annual medical exam required for regulatory compliance. The Defendant has responded to this interrogatory as follows: “Defendant objects to this question on the basis of confidentiality of medical information of other employees.” The information requested is discoverable and not privileged for the same reasons as explained above. Because the information is discoverable and relevant, this Court should compel the Defendant to respond accordingly. g) Plaintiff’s Second Set of Interrogatories #10: For each employee identified in the previous question, please explain why these employees were required to participate in these medical exams or provide additional medical documentation, to the extent that information is not privileged. The Defendant has responded to this interrogatory as follows: “Defendant objects to this question on the basis of confidentiality of medical information of other employees.” The information requested in this interrogatory is discoverable and not privileged as explained in the previous paragraph. For the same reasons as previously described, the Court should compel the Defendant to respond to this interrogatory. IV. CONCLUSION The Defendant is not entitled to a Protective Order regarding the comparator information requested by the Plaintiff in the discovery requests. The information is discoverable and it is not privileged. While the Plaintiff cites confidentiality as the reason it refuses to comply with discovery demands, confidentiality in and of itself does not create a privilege. The defendant seeks to use a protective order to create privilege where there is none. But this hinders the ability 7 BER-L-001458-23 12/05/2023 4:40:30 PM Pg 9 of 9 Trans ID: LCV20233542928 of the Court to arrive at truth through this adversarial process. Therefore, the Court should deny the Defendant’s motion. Similarly, the Defendant has refused to comply with discovery requests, without citing a legal basis for doing so. This information requested is relevant, discoverable, and is absolutely vital to the Plaintiff’s ability to prove and present her claim. For all of the reasons stated above, the Court should deny the Defendant’s Motion to Enter a Protective Order and should grant the Plaintiff’s Cross-Motion to Compel Discovery. COSTELLO & MAINS, LLC By: __ /s/ Samantha J. Leeds __ Samantha J. Leeds Dated: December 5, 2023 8 BER-L-001458-23 12/05/2023 4:40:30 PM Pg 1 of 2 Trans ID: LCV20233542928 COSTELLO & MAINS, LLC By: Samantha J. Leeds Attorney I.D. No. 332202021 18000 Horizon Way, Suite 800 Mount Laurel, NJ 08054 (856) 727-9700 sleeds@costellomains.com Attorneys for Plaintiff : JASMINE GUERRA, : SUPERIOR COURT OF NEW JERSEY : : BERGEN COUNTY - LAW DIVISION Plaintiff, : : CIVIL ACTION vs. : ACHIEVING NEW HEIGHTS LLC; and : DOCKET NO: BER-L-1458-23 JOHN DOES 1-5 AND 6-10, : : : CERTIFICATION OF SERVICE Defendants. : : : I, Taiwo Bolaji, being of due age, hereby certify and affirm as follows: 1. I am a Legal Assistant employed by the law firm Costello & Mains, LLC. 2. On, December 5, 2023, at Attorney Leeds’s Direction, I served the foregoing documents via E-Mail and U.S. Mail upon all persons as they appear below: Jeffrey A. Bronster, Esq. 17 Wendell Place Fairview, NJ 07022 3. A courtesy copy of the Motion and all attached documents will be mailed to the Judge assigned to hear this Motion. BER-L-001458-23 12/05/2023 4:40:30 PM Pg 2 of 2 Trans ID: LCV20233542928 I hereby certify the foregoing is true and correct. I am aware that if any of the foregoing statements are willfully false, I am subject to punishment. COSTELLO & MAINS, LLC /s/ Taiwo Bolaji Taiwo Bolaji Dated: December 5, 2023 2 BER-L-001458-23 12/05/2023 4:40:30 PM Pg 1 of 24 Trans ID: LCV20233542928 EXHIBIT “A” BER-L-001458-23 12/05/2023 4:40:30 PM Pg 2 of 24 Trans ID: LCV20233542928 COSTELLO & MAINS, LLC By: Samantha Leeds Attorney I.D. No. 332202021 18000 Horizon Way, Suite 800 Mount Laurel, NJ 08054 (856) 727-9700 sleeds@costellomains.com Attorneys for Plaintiff JASMINE GUERRA, SUPERIOR COURT OF NEW JERSEY BERGEN COUNTY - LAW DIVISION Plaintiff, CIVIL ACTION vs. DOCKET NO: BER-L-1458-23 ACHIEVING NEW HEIGHTS LLC; and PLAINTIFF’S FIRST SET OF JOHN DOES 1-5 AND 6-10, INTERROGATORIES DIRECTED TO Defendants. DEFENDANTS Kindly respond to the attached interrogatories and requests for production of documents within the time prescribed by Court Rule. COSTELLO & MAINS, LLC By: __ /s/ Samantha J. Leeds __ Samantha J. Leeds DATED: March 22, 2023 1 BER-L-001458-23 12/05/2023 4:40:30 PM Pg 3 of 24 Trans ID: LCV20233542928 DEFINITIONS Unless otherwise clearly indicated, the following words, as used herein, shall have the meaning shown: 1. “Person” or “persons” means all individuals and entities, including without limitation individuals, representative persons, associations, companies, corporations, partnerships, estates, public agencies, departments, divisions, bureaus and boards. 2. “Document” includes, without limitation, the original and each copy of each and any writing, email, entry on a social networking site (including, but not limited to, 'Twitter,' 'Facebook, and 'Myspace,' text message, data file, evidence of indebtedness, memorandum, letter, correspondence, telegram, note, minutes, contract, agreement, inter-office communication, bulletin, circular procedure, pamphlet, photograph, study, notice, summary, invoice, diagram, plan, drawing, diary, record, telephone message, chart, schedule, entry, print, representation, report and any tangible items or thing of written, readable, graphic, audible, or visual material, of any kind or character, whether handwritten, typed, Xeroxed, photographed, copied, microfilmed, microcarded, or transcribed by any means, including, without limitation, each interim as well as final draft. 3. “Communication” means any and all written and non-written forms of expression or communication whether face-to-face, by telephone, in email, on or through a website, in text mail, in 'twitter,' 'Facebook,' 'Myspace' and similar social networking formats, in conference, by document, or otherwise. “Oral communication” means every communication other than written communication. 4. “Identify,” when referring to a natural person, means to provide the following information: 2 BER-L-001458-23 12/05/2023 4:40:30 PM Pg 4 of 24 Trans ID: LCV20233542928 (a) his/her full name and date of birth; (b) present or last known address; (c) the last date when such address was known or believed to be correct; (d) his/her present or last known business affiliation, title and occupation; (e) the extent to which, and the foundational information for, the claim that the person is part of the litigation control group, or is represented by any attorney or law firm representing any defendant. 5. “Identify,” when referring to a corporation, means to provide the corporation’s full name, each state in which it is incorporated, and the address of its principal place of business, and to identify every person who owns or controls more than 10% of the common stock of such corporation and state the percentage of such stock he/she owns. 6. “Identify,” when referring to an entity other than a natural person or corporation (e.g., association, partnership, limited partnership, etc.) means to provide an official name or designation of each such entity and the address of its principal place of business, and to identify every person who owns more than 10% of the equity interests of such entity and to state the percentage interest of equity he/she owns. 7. “Identify,” when referring to any document, means to: (a) state its date; (b) state its name or title (if any); (c) state the type of document (e.g., letter, memorandum, telegram, etc.); (d) describe its general subject matter and contents; (e) identify its author or originator and its addressee, if any, and all persons to whom copies of the document were to be or have been sent; 3 BER-L-001458-23 12/05/2023 4:40:30 PM Pg 5 of 24 Trans ID: LCV20233542928 (f) identify its present location and custodial; and (g) if the document is no longer in your possession, identify its last known custodian, describe the circumstances under which it passed from your control to that person and identify each person having knowledge of such circumstances and/or the present location of the document. 8. “Identify,” when referring to an oral communication, means to: (a) state the date and means of each oral communication; (b) state the place where each oral communication occurred; (c) identify each person participating in or listening to each oral communication; (d) identify each person(s) present at the time of each oral communication; (e) if the oral communication was by telephone; (1) identify the place where each person participating in the call was located at the time of the call; (2) state the telephone number of every telephone used by every participant in the call; (f) summarize the substance of each oral communication; and (g) identify every document that is a transcript of or otherwise sets forth, summarizes, relates, or refers to each oral communication. 9. “Identify,” when referring to any written communication, means to: (a) identify each person making or receiving each written communication; (b) identify each document that contains, sets forth, or constitutes or relates or refers to each written communication; and 4 BER-L-001458-23 12/05/2023 4:40:30 PM Pg 6 of 24 Trans ID: LCV20233542928 (c) summarize the substance of each written communication. 10. The term “identify” as used herein in connection with an “act” means: (a) state the date and place of the act; (b) state the person acting, the person for whom the act was performed, the person against whom the act was directed, and those present when the act was performed; and (c) describe in detail the act. 11. “Defendant” means each and any of the defendants in this action, including every individual defendant, whether acting in his/her individual capacity or as agent for another, and every predecessor and successor in interest to every corporate defendant, and every director, officer, employee, and agent and any other representative acting on behalf of any defendant. 12. “Plaintiff” means any and/or all plaintiffs in this action, and every director, officer, employee, and agent and any other representative acting on its behalf. 13. “Relevant time period” means the period from one year prior to any event alleged in the Complaint filed herein to the date these interrogatories are answered. 14. The word “act” as used herein includes acts of every kind and description. 15. The word “complaint” as used herein refers to the complaint filed on behalf of plaintiff commencing the instant action or any amended complaint(s) filed thereafter. 16. The conjunctions “and” and “or” as used herein shall be interpreted conjunctively and shall not be interpreted disjunctively to exclude any information otherwise within the scope of any interrogatory. 17. The word “date” as used herein means the exact day, month and year, if ascertainable, or, if not, your best approximation thereof. 5 BER-L-001458-23 12/05/2023 4:40:30 PM Pg 7 of 24 Trans ID: LCV20233542928 18. The word “describe” as used herein means to state the date and identify the persons involved in the transaction, communication, event or occurrence in question, and to state the nature and subject matter of the transaction, communication, event or occurrence in question. 19. The term “describe in detail” as used herein means: (a) describe fully any reference to underlying facts, if possible, rather than just by ultimate facts or conclusions of fact or law; and (b) particularize as to: (1) time; (2) place; and (3) manner. 20. As used herein, any reference to any corporate entity shall be deemed to include that corporate entity or any predecessor, successor or affiliated corporate entity. 21. As used herein, the term “advice” shall mean any demand, suggestion, opinion, indication or requirement that any person(s), partnership, corporation, or other entity take any action or refrain from taking any action. 22. The terms “identify” or “describe” as used herein in connection with the term “advice” means: (a) state the date and place the advice was given; (b) state to whom the advice was given, by whom the advice was given and all persons present when the advice was given; (c) the substance of the advice, recalling the exact words to the extent possible; (d) if the advice was wholly or partly comprised of oral communications, or 6 BER-L-001458-23 12/05/2023 4:40:30 PM Pg 8 of 24 Trans ID: LCV20233542928 resulted in any oral communications, identify all such communication; (e) if the advice was wholly or partly written or reduced to writing, or resulted in the production of any written documents, identify all said documents or documents where said advice was written or in which said advice was reduced to writing. 23. The terms “agreement” and “contract” as used herein shall be interchangeable and shall both be construed to have their broadest meaning. The terms “identify” as used herein in connection with an “agreement” means: (a) if the agreement is claimed to have been express and in writing, so state: and (1) identify the documents alleged to comprise the agreement; (2) identify the persons who were parties to the agreement, and in the case of a person or persons other than an individual, furnish the name and address of the individual purporting to act for such person or persons; and (3) set forth the subject matter of the agreement. (b) if the agreement is claimed to have been express or oral, so state, and (1) furnish the date and place of each conversation comprising the agreement; (2) furnish the name and address of the individual engaging in each conversation, the date and place of which is furnished in the answer to (1) hereof; (3) identify the person for whom each individual listed in (2) hereof is 7 BER-L-001458-23 12/05/2023 4:40:30 PM Pg 9 of 24 Trans ID: LCV20233542928 alleged to have acted; and (4) set forth the substance of the agreement. (c) if the agreement is claimed to have been express and partly in writing and partly oral, so state; and (1) as to the written part, furnish the information requested in 23(a) hereof; and (2) as to the oral part, furnish the information requested in 23(b) hereof; (d) if the agreement is claimed to be implied from acts, so state; and (1) identify each act-giving rise to the inference of an implied agreement. (e) if the agreement is claimed partly to be implied from acts and partly to have been in writing, so state; and (1) as to the implied part, furnish the information requested in 23(d) hereof; and (2) as to the written part, furnish the information requested in 23(a) hereof. (f) if the agreement is claimed partly to be implied from acts and partly to have been oral, so state; and (1) as to the implied part, furnish the information requested in 23(b) hereof; and (2) as to the oral part, furnish the information requested in 23(b) hereof. 8 BER-L-001458-23 12/05/2023 4:40:30 PM Pg 10 of 24 Trans ID: LCV20233542928 (g) if the agreement is claimed partly to have been implied from acts, partly to have been in writing, and partly to have been oral, so state; and (1) as to the implied part, furnish the information requested in 23(d) hereof; (2) as to the written part, furnish the information requested in 23(b) hereof; and (3) as to the oral part, furnish the information requested in 23(b) hereof. 24. As used herein, the terms “defendant,” “you,” “your” or “yourself” refer to the answering defendant or any agent or employee of the answering defendant. 25. As used herein, “state the basis” or “state the manner” means to describe fully all of the facts which you believe support your position or contention, to identify each factor considered by you when arriving at such position or contention, and to state why each such factor was (or was not) relied upon by you in arriving at such position or contention. 26. As used herein, the term “employee” shall include an agent, director, officer, or any person who performs services for remuneration for any person, partnership or corporation. 27. As used herein, “including” is defined to mean “including but not limited to.” 9 BER-L-001458-23 12/05/2023 4:40:30 PM Pg 11 of 24 Trans ID: LCV20233542928 INSTRUCTIONS 1. All answers should be based upon all information available to the answering party, including its agents, within the meaning of R.4:17-4. 2. All answers should be supplemented or amended in accordance with the requirements of R. 4:17-7. 3. If any information or document is omitted or withheld from an answer by reason of a claim of privilege, the answer should describe such information or document with sufficient specificity to establish the basis of the privilege and should state all factual and legal bases for the allegation that such information or document is privileged. 4. Unless otherwise clearly specified, all interrogatories refer to the relevant time period as defined above. If an answer varies during the relevant time period, all the various answers for the relevant time period should be given, with a specification of the portion of the relevant time period to which each such answer applies. 10 BER-L-001458-23 12/05/2023 4:40:30 PM Pg 12 of 24 Trans ID: LCV20233542928 INTERROGATORIES 1. Set forth a complete job history of each plaintiff, setting forth dates of hire and/or separation, promotion, job title change, job description change, benefits change and/or compensation change. Also include any and all documentation and factual information relating to bonus items or income during employment. 2. 'Identify' each person who has knowledge or relevant information concerning: (a) any claim of the plaintiff(s); (b) any defense offered in the answer; (c) any fact relating to plaintiff’s/plaintiffs’ personal life, personal activities, personal relationships or work relationships, internet activities, hobbies or interests; (d) any fact or information relating to plaintiff’s/plaintiffs’ medical information. Set forth a summary of the factual information you believe the person possesses; (e) the reason plaintiff(s) is/are no longer employed by defendant, if that be the case, as well as the communications, decisions and deliberations concerning the plaintiffs'/plaintiff's separation from employment. For purposes of this interrogatory, by “identify” we request that you observe the Instructions given heretofore, and that you also provide: supply that person’s employment relationship to you, including date of hire and/or separation, if applicable, job title held, the person’s addresses (residential and business), cell phone numbers, home numbers, work numbers, social security numbers and dates of birth, if you know them, and how the person came to possess the information requested in this interrogatory. If you contend that any individual identified in response to this interrogatory is a member of the “litigation control group” of the answering party—as defined by RPC 1.13(a), and as defined in Michaels v. Woodland, 988 F.Supp. 468, 472 (D.N.J. 1997)—and/or is so closely associated with the answering party that it, for legal purposes, is the answering party, his/her contact information need not be supplied. Instead, you may state that the person may be contacted through counsel for the answering party and state whether or not answering counsel will supply that person for deposition pursuant to a notice to take deposition. 3. For each individual identified in response to interrogatory number 2 above, set forth in detail the knowledge or information that you believe he/she possesses. 4. For each plaintiff who is no longer employed by your company: (a) set forth when and how the employment relationship ended; 11 BER-L-001458-23 12/05/2023 4:40:30 PM Pg 13 of 24 Trans ID: LCV20233542928 (b) identify each person who participated in the decision to end the relationship, setting forth the nature and extent of his/her involvement in the determination and/or execution or enforcement of the decision; and (c) set forth any and all facts or knowledge pertinent to the separa