Barney v Zimmer Biomet Holdings Inc

Filing 125

REDACTED OPINION AND ORDER (re 124 Order on Motion to Seal). Signed by Magistrate Judge Michael G Gotsch, Sr on 07/10/2020. (jat)

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UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
SOUTH BEND DIVISION
ROBIN BARNEY,
Plaintiff,
v.

CASE NO. 3:17-CV-616-JD-MGG

ZIMMER BIOMET HOLDINGS, INC.,
Defendant.
OPINION AND ORDER
Pending and ripe before the Court are Plaintiff Robin Barney’s Renewed Motion
to Compel [DE 103] and three related motions to seal [DE 105, DE 111, DE 115] asking
the Court to maintain portions of the briefing of Barney’s motion to compel and certain
related exhibits under seal.
I.

RELEVANT BACKGROUND
After a lengthy pleadings process, Barney’s claims against Defendant, Zimmer

Biomet Holdings, Inc. (“Zimmer Biomet”), were finalized on April 8, 2020, when this
Court granted Zimmer Biomet’s most recent motion to dismiss Barney’s state law
constructive discharge claim. [DE 118]. Barney’s active claims are now limited to her
gender discrimination claims under the Equal Pay Act, 29 U.S.C. § 206(d) [DE 27 at 7–8]
and Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e [DE 27 at 8–9]. Barney’s
gender discrimination claims arise from circumstances that allegedly led her to resign
as Zimmer Biomet’s Senior Vice President of Global Operations and Logistics in
November 2016. As relevant here, Barney’s Equal Pay Act claim alleges that Zimmer

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Biomet paid severance benefits to similarly situated male employees who either
resigned at their own initiative or were terminated by the company, but refused to pay
her severance benefits despite the alleged constructive discharge that led her to resign.
[DE 27 at 7–8]. In her Title VII claim, Barney pleads that Zimmer Biomet treated her
differently because of her gender when it allegedly ordered her to make false
representations of material fact to investors on a 2016 Q3 investor call and to terminate
employees under false pretenses, while also making her and her organization a
scapegoat for corporate problems. Barney contends that she would have been fired had
she not complied with these orders even though she believed she would have been
criminally liable had she complied. Thus, Barney chose to resign to avoid potential
criminal liability.
The parties began discovery related to Barney’s discrimination claims early in
this case before the pleadings were finalized and even before a Rule 16(b) Scheduling
Order was entered. Barney served interrogatories (“ROGs”) and requests for
production of documents (“RFPs”) on Zimmer Biomet on November 16, 2017. On
December 18, 2017, Zimmer Biomet served its initial responses and objections [DE 1041, DE 106-1], but supplemented its production with additional documents in at least ten
batches between January 20, 2018, and January 14, 2019. Despite exchanges between
counsel regarding what Barney perceived to be deficiencies in Zimmer Biomet’s
production, the parties did not resolve their disagreement over Zimmer Biomet’s
Answers to ROG Nos. 7 & 8 and its Responses to RFP Nos. 5, 13, & 15, which all seek
information intended to help Barney identify potential comparators.
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Between February 27, 2018, and April 2, 2018, Barney also noticed five non-party,
current or former Zimmer Biomet executives of depositions to occur between May 8,
2018, and August 22, 2018. [DE 104-2 at 1, 6, 10, 14, 20]. The deposition notices were
accompanied by subpoenas duces tecum seeking copies of each deponent’s
employment-related agreements with Zimmer Biomet or its predecessor companies.
Two of the executives were deposed in the spring of 2018, but both refused to answer
certain questions on advice of counsel citing the “scope” of the questions. Neither
produced all the agreements requested by subpoena. The depositions of the remaining
three non-party executives were never scheduled due to stays of discovery. None of
their employment-related agreements have been produced in response to the subpoenas
either.
After reaching an impasse as to the completeness of Zimmer Biomet’s Answers
to ROGs 7 & 8, its Responses to RFPs 5, 13, & 15, the unanswered deposition questions,
and the deponents’ responses to the subpoenas, Barney filed her original Motion to
Compel [DE 36] on June 19, 2018, seeking the Court’s assistance in resolving these
discovery disputes. That motion was denied without prejudice as the Court stayed all
proceedings in this case pending the lifting of a stay in a parallel securities case. 1
Discovery resumed after the stay was lifted on December 18, 2018, and a Rule 16(b)
Scheduling Order was then entered by this Court on June 10, 2019.

1

Shah v. Zimmer Biomet Holdings, Case No. 3:16-cv-815-PPS

3

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In the meantime, Barney attempted to reassert her state law constructive
discharge claim through a lengthy and complicated procedural journey that ultimately
led Zimmer Biomet, on August 26, 2019, to file another motion to dismiss the state law
constructive discharge claim. While waiting for the motion to dismiss to be resolved,
discovery continued. Counsel reopened discussion in October 2019 regarding the issues
arising from the non-party depositions but could not reach agreement as to how to
proceed. Still at an impasse over the same discovery disputes raised in her original
motion to compel, Barney filed the instant Renewed Motion to Compel on October 11,
2019. Shortly thereafter, discovery was stayed again—this time pending resolution of
Zimmer Biomet’s motion to dismiss.
As part of the stay order, the parties were directed to file a joint status report,
“informing the Court of the status of discovery and the pending motions,” upon lifting
of the stay. [DE 113 at 2–3]. The stay was automatically lifted on April 8, 2020, when the
Court issued its order dismissing Barney’s constructive discharge claim. In their timely
Joint Status Report, the parties revealed that the discovery disputes raised six months
earlier in Barney’s Renewed Motion to Compel—and almost two years ago in Barney’s
original motion to compel—remain unresolved in their totality. Apparently, neither the
passage of time in conjuction with the ongoing discovery process, nor the dismissal of
Barney’s state law constructive discharge claim facilitated any agreement between the
parties regarding these discovery disputes to which the Court shall now turn its
attention.

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II.

ANALYSIS
Of course, a party may “obtain discovery regarding any nonprivileged matter

that is relevant to any party’s claim or defense and proportional to the needs of the
case.” Fed. R. Civ. P. 26(b)(1). When addressing motions to compel filed under Fed. R.
Civ. P. 37(a), the court has broad discretion and may deny discovery to protect a party
from annoyance, embarrassment, oppression, or undue burden or expense. See Fed. R.
Civ. P. 26(c); Sattar v. Motorola, Inc., 138 F.3d 1164, 1171 (7th Cir. 1998); Gile v. United
Airlines, Inc., 95 F.3d 492, 495–96 (7th Cir. 1996). “[A] district court should
independently determine the proper course of discovery based upon the arguments of
the parties.” Gile, 95 F.3d at 496.
In discovery, what is relevant includes more than what is admissible at trial.
Instead, relevant matter includes “anything that appears reasonably calculated to lead
the discovery of admissible evidence.” Barker v. Life Ins. Co. of N.Am., 265 F.R.D. 389, 393
(S.D. Ind. 2009 (internal citation omitted). Given the liberal scope of discovery under
Fed. R. Civ. P. 26(b), “[t]he burden rests upon the objecting party to show why a
particular discovery request is improper.” Gingerich v. City of Elkhart Prob. Dep’t, 273,
F.R.D. 532, 536 (N.D. Ind. 2011) (internal citations omitted). Nevertheless, “the
proponent of a motion to compel discovery still bears the initial burden of proving that
the information sought is relevant.” United States v. Lake County Bd. of Comm’rs, No. 2:04
CV 415, 2006 WL 978882, at *1 (N.D. Ind. Apr. 7, 2006) (internal quotation omitted); see
also United States v. Farley, 11 F.3d 1385, 1390 (7th Cir. 1993) (“Since the documents at
issue are not relevant to the controversy before us, Farley cannot, as a matter of law,
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make a showing of need.”); Greenbank v. Great Am. Assurance Co., 2019 WL 6522885, at *3
(S.D. Ind. Dec. 4. 2019) (“A party moving to compel production carries the initial
burden of establishing, with specificity, that the requested documents are relevant.”
(emphasis in original)).
Here, the parties disagree as to the relevance of all the disputed discovery
requests. Moreover, Zimmer Biomet contends that Barney’s requests amount to an
improper fishing expedition outside the scope of her claims intended to harass the nonparties involved, especially one of the non-party deponents, David Dvorak, who was
Zimmer Biomet’s Chief Executive Officer when Barney resigned. Nevertheless, Barney
contends that the discovery matters at issue seek comparator evidence and other
information related to the alleged constructive discharge, both of which she argues are
central to her discrimination claims. Additionally, Barney contends that the requested
information could reveal evidence of Zimmer Biomet’s or the deponents’ credibility and
biases. Each discovery dispute will be addressed in turn.
A.

Written Discovery Requests

Through Interrogatory Nos. 7 & 8 and Requests for Production 5, 13, & 15,
Barney seeks information to help identify potential comparators. Notably, no party
disputes that information about potential comparators is relevant and discoverable as to
Barney’s discrimination claims. See Assaf v. OSF Healthcare Sys., 11-4108, 2014 WL
321860, at *3 (C.D. Ill. 2014). Indeed, to establish her Equal Pay Act claim, Barney will
have to show that (1) Zimmer Biomet paid different wages to employees of the opposite
sex; (2) those employees performed work requiring equal skill, effort, and
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responsibility; and (3) those employees have similar working conditions. See, e.g., Wolf
v. Nw. Ind. Symphony Society, 250 F.3d 1136, 1144 (7th Cir. 2001). The similarly-situated
analysis is also elemental to Barney’s Title VII disparate treatment claim, which requires
a prima facie showing of discrimination including evidence that (1) she was a member of
a protected class; (2) her job performance met Zimmer Biomet’s legitimate expectations;
(3) she suffered an adverse employment action; and (4) Zimmer Biomet treated
similarly-situated persons not in a protected class more favorably. See Coleman v.
Donahoe, 667 F.3d 835, 845 (7th Cir. 2012) (citing McDonnell Douglas Corp. v. Green, 411
U.S. 792, 802 (1973)). As the parties about what variables define employees similarly
situated to Barney, they now ask the Court to determine the extent to which the
information sought through Barney’s ROGs 7 & 8 and RFPs 5, 13, & 15 is relevant,
proportional, and discoverable related to likely comparators.
Barney has narrowed the scope of her original written requests as reflected in the
final prayer for relief in her reply brief related to the instant Renewed Motion to
Compel. Barney’s current, narrowed requests are more consistent with the parties’
efforts to resolve their discovery disputes before the motions to compel were filed. Any
distinctions will be clarified as necessary in the discussions below. Despite the
narrowing of her requests, Barney still complains that Zimmer Biomet has withheld
responsive information based largely upon its own assessment of who qualifies as
legitimate comparators.
Zimmer Biomet, on the other hand, contends that Barney’s current narrowed
requests are not consistent with the parties’ agreed scope of comparator discovery and
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that she has improperly broadened her requests through the Renewed Motion to
Compel. Regardless, Zimmer Biomet argues that Barney has received “all comparator
discovery to which she is entitled; namely former employees of Zimmer Biomet who
were similarly situated to Barney and who separated from the company between June
24, 2015, and June 24, 2017.” [DE 110 at 28].
Yet the ultimate decision as to whether a comparator is similarly situated for
purposes of discrimination claims is a question for the fact-finder. Reed v. Freedom
Mortgage Corp., 869 F.3d 543, 549 (7th Cir. 2017). Therefore, no employer can unilaterally
decide who qualifies as similarly situated employees. Moreover, plaintiffs like Barney
are entitled to explore information during discovery to prove who her legitimate
comparators are or to discover additional potential comparators. See Vajner v. City of
Lake Station, No. 2:09-cv-245, 2010 WL 4193030, at *1 (N.D. Ind. Oct. 18, 2010) (“In the
context of employment discrimination cases, the scope of discovery is particularly
broad because ‘an employer’s general practices are relevant even when a plaintiff is
asserting an individual claim for disparate treatment.’”).
Here, Zimmer Biomet has defined the scope of “similarly situated employees”
itself and limited its production of responsive information in keeping with that
definition. More specifically, in a letter to Barney’s counsel dated February 7, 2018,
Zimmer Biomet defined “the scope of Plaintiff’s purported comparators” related to her
severance-based claims as
individuals Plaintiff has identified as purported comparators in her Third
Amended Complaint or in her responses to Defendant’s Interrogatory
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Numbers 17 or 23 2, and former executive-level employees, if any, who
received similar Change in Control benefits to Plaintiff, as identified in
Defendant’s SEC filings 3.
[DE 106-4 at 3]. Zimmer Biomet then identified those individuals as Lance Perry,
Former Vice President and General Manager, Knee Construction; Wil Boren, Former
Vice President and General Manager, Connected Health; Stuart Kleopfer, Former Vice
President of Commercial Americas; Adam Johnson, Former Group President of Spine,
Dental, Bone Healing, CMF, and Thoracic; and Jeff Grabow, Former Vice President of
Spine, Dental, Bone Healing, CMF, and Thoracic. [DE 106-4 at 3–4]. Zimmer Biomet
then agreed to search for and produce responsive documents related to these
individuals only without conceding their status as legitimate comparators. [DE 106-4 at
4]. However, by limiting their search and production in this way, Zimmer Biomet has
precluded Barney from discovering additional potential comparators that she could not
identify herself. Such limitation is inconsistent with liberal scope of discovery
authorized by Fed. R. Civ. P. 26(b) and particularly critical in employment
discrimination claims like Barney’s. See Vajner, 2010 WL 4193030, at *1. With that said,
the scope of comparator discovery is not unlimited.

In her Third Amended Complaint, Barney explicitly identified Lance Perry, Wil Boren, Stuart Kleopfer,
Adam Johnson, and Jeff Grabow as purported comparators. [DE 27 at 6, ¶ 38]. Barney also alleged that
this was not an exclusive list of purported comparators. [DE 27 at 6, ¶ 38]. Barney’s Interrogatory
Responses are not part of the record; however, in counsel’s February 7, 2018, letter, Zimmer Biomet
reports that Barney identified the same five individuals as purported comparators in her Interrogatory
Responses. [DE 106-4 at 3 n.1].
3 In the February 7, 2018, letter, Zimmer Biomet’s counsel indicates that Wil Boren, Stuart Kleopfer, and
Adam Johnson were identified in the company’s SEC filings as former Zimmer Biomet executive-level
employees with Change in Control benefits similar to Barney’s. [DE 106-4 at 3 n.2]. Counsel also reports
that Dan Florin and Dan Williamson were entitled to Change in Control benefits like Barney’s but have
not received severance benefits because they remain employed by Zimmer Biomet. [DE 106-4 at 3 n.2].
2

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The purpose of the “similarly situated” requirement in both Equal Pay Act and
Title VII cases is to isolate other variables that may account for differing treatment.
Silverman v. Bd. of Educ. of City of Chicago, 637 F.3d 729, 742 (7th Cir. 2011), overruled on
other grounds by Ortiz v. Werner Enters., Inc., 834 F.3d 760 (7th Cir. 2016). “To meet her
burden of demonstrating that another employee is ‘similarly situated,’ a plaintiff must
show that there is someone who is directly comparable to her in all material respects.”
Patterson v. Avery Dennison Corp., 281 F.3d 676, 680 (7th Cir. 2002). “A court must look at
all relevant factors, the number of which depends on the context of the case.” Id.
(internal quotations omitted).
Normally, comparators are similarly situated if they shared a common
supervisor with the plaintiff, were subject to the same standards as the plaintiff, and
“engaged in similar conduct without such differentiating or mitigating circumstances as
would distinguish their conduct or the employer’s treatment of them.” Humphries v.
CBOCS West, Inc., 474 F.3d 387, 404–05 (7th Cir. 2007). Yet courts should apply a
“common-sense” factual inquiry when determining which comparators meet the
similarly situated requirement. Id. at 405. The inquiry “is not an unyielding, inflexible
requirement that requires near one-to-one mapping between employees—distinctions
can always be found . . . .” Id. “[T]he inquiry simply asks whether there are sufficient
commonalities on the key variables between the plaintiff and the would-be comparator
to allow the type of comparison that, taken together with the other prima facie
evidence, would allow a jury to reach an inference of discrimination . . . .” Id. For
instance, material factors to consider in identifying similarly situated employees in a
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severance case “may include the positions held, policies or plans in effect, the
decisionmakers, and the timing of the separations . . . .” Houston v. Easton Area Sch. Dist.,
355 F. App’x 651, 654–55 (3d Cir. 2009).
Barney’s claims here are based, in large part, on the severance terms in her
relevant employment contract. Barney became Senior Vice President of Operations for
Biomet, Inc. on September 2, 2008. When Biomet merged with Zimmer Holdings, Inc.
on June 24, 2015, Barney became Zimmer Biomet’s Senior Vice President of Global
Operations and Logistics. Barney’s employment agreement with Zimmer Biomet
included a change in control (“CIC”) provision that entitled her to severance benefits if
she were terminated for any reason other than cause, or if she terminated her own
employment for good reason, within two years of the merger. [DE 23-1 at 7]. Barney
alleges that she was improperly denied severance benefits after her resignation from
Zimmer Biomet in the fall of 2016 because she is female. Barney alleges that she
resigned to avoid being terminated for refusing to commit an illegal act (i.e., lying on an
investor call). In other words, Barney contends that she was constructively discharged,
which is an actionable adverse employment action under Title VII. See Chapin v. FortRohr Motors, Inc., 621 F.3d 673, 679 (7th Cir. 2010).
Based on these allegations, key factors to consider in identifying potential
comparators similarly situated to Barney would include positions held to assure
sufficient commonality in job expectations and applicable severance provisions to allow
comparison of the terms of those provisions. Another key material factor would be the
timing of the comparators’ severance decision as related to Barney’s departure because
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Barney’s severance benefit was directly tied to the two-year period immediately
following the companies’ merger. Additionally, similar timing of any potential
comparators’ severance benefit decisions would ensure common decisionmakers and
corporate policies were at play in Zimmer Biomet’s allegedly discriminatory decisions.
Zimmer Biomet’s definition of potential comparators as “former executive-level
employees, if any, who received similar Change in Control benefits to Plaintiff, as
identified in Defendant’s SEC filings” properly accounts for some of these key variables.
[See DE 106-4 at 3].For instance, limiting comparator discovery to executive-level
employees like Barney reasonably ensures that the potential comparators are subject to
the similar supervisory structure, performance expectations, and job tasks. However,
evidence of Zimmer Biomet’s approach to granting severance benefits to female
executives versus male executives—at the heart of Barney’s discrimination claims—
could arise from conduct related to a variety of employment agreements, not just those
including a CIC provision like Barney’s agreement did. Therefore, limiting Barney’s
comparator discovery to only individuals with severance benefits provided through a
CIC provision is excessive. Similarly, the circumstances surrounding the departures of
any executive-level employee could reasonably generate comparator information
relevant to the alleged demands from Zimmer Biomet that led Barney to resign before
being terminated even if the other separated employees had no agreement providing
for severance benefits.
Furthermore, defining the relevant time for comparator departures consistent
with the two-year, post-merger limit to Barney’s severance benefits ensures certain
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commonalities of circumstances. However, Barney’s direct supervisor, CEO Dvorak,
separated from Zimmer Biomet effective July 11, 2017, shortly after that two-year
window closed. Given CEO Dvorak’s supervisory role over Barney, expanding the
temporal limit for comparator discovery through his departure is reasonable to mitigate
against differences in supervisors among comparators.
With information in these categories, Barney can assess whether sufficient
commonalities exist between herself and potential comparators to allow the type of
comparison that, taken together with the other prima facie evidence, would allow a jury
to reach an inference of discrimination as to her severance benefits and her alleged
constructive discharge. See Humphries, 474 F.3d at 405. Therefore, for purposes of
discovery as to Barney’s gender discrimination claims, a proper scope of comparator
discovery would include executive-level Zimmer Biomet employees who separated
from the company between June 24, 2015, and July 11, 2017, regardless of formal title or
any severance-related provision.
1.

Interrogatory Nos. 7 & 8

When first propounded, Barney’s ROGs 7 & 8 sought information about “any
and all persons who received [or were denied] severance benefits from Zimmer Biomet
from June 24, 2015, to June 24, 2017 . . . .” [DE 106-1 at 9–10]. Thus, it was overbroad in
that it sought identification of individuals beyond the scope of executive-level
employees. In fact, this overbreadth was addressed by the parties before turning to the
Court for assistance. In an email to Barney’s counsel dated May 29, 2018, Zimmer
Biomet’s counsel confirmed that he had agreed to work with Zimmer Biomet to
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“identify all VP-level or above Zimmer Biomet U.S. employees who left the company
between June 1, 2015, and June 30, 2017” in response to ROGs 7 & 8. [DE 104-5 at 1].
Zimmer Biomet’s counsel stated in the same email that the information would be
available by early June 2018, after which counsel could discuss additional discovery that
might be appropriate as to the newly identified potential comparators. [DE 104-5 at 1].
Barney contends that Zimmer Biomet never followed through on this promise.
Despite the parties’ apparent agreement to narrow the scope of the overbroad
original ROGs 7 & 8, Barney’s instant Renewed Motion asked the Court to compel
Zimmer Biomet to produce answers to the broader request to “identify any individuals
who received severance benefits . . . or who were told that they were ineligible to
receive such benefits . . . .” [DE 104 at 19]. Understandably, Zimmer Biomet’s response
brief focused upon Barney’s apparent reneging on her previous agreement. Without
explanation, however, Barney’s subsequent reply brief only asked for an order
compelling Zimmer Biomet to produce complete, verified Interrogatory responses to
ROGs 7 & 8 consistent with the narrowed scope confirmed in Zimmer Biomet’s May 29,
2018, email. [See DE 114 at 14–15].
Just as Zimmer Biomet wants Barney held to the narrowed scope of ROGs 7 & 8
negotiated by the parties in May 2018, Zimmer Biomet should be held accountable for
producing information responsive to those narrowed requests. Zimmer Biomet
indicates that it produced severance-related information for two additional former
executives, Rex White and Richard Castenada, on June 15, 2018. The parties agree that
severance information has already been produced as to eight individuals: Barney
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herself, Lance Perry, Stuart Kleopfer, Jeff Grabow, Wil Boren, Rex White, Adam
Johnson, and Richard Castenada. While this effectively identifies them as executivelevel employees who left the company in the relevant time period, it does not verify that
this is an exhaustive list of such executive-level departures. Therefore, Zimmer Biomet
must now produce a responsive answer that identifies all such individuals in the
narrowed scope to which it agreed without narrowing that scope further based on its
own definition of what constitutes a comparator in this case.
2.

RFPs 5, 13, & 15

During negotiations between the parties in early 2018, Barney also agreed to
narrow the scope of RFPs 5 & 13, which respectively seek information as to Zimmer
Biomet’s decisions on the severance requests of executive-level employees and the
agreements 4 providing for severance benefits to executive-level employees. [DE 104-4 at
3, 5–6]. Barney contends that Zimmer Biomet has unilaterally withheld responsive
information on these requests based on its own definition of comparators, as discussed
above. Zimmer Biomet shall now supplement its responses to Barney’s RFPs 5 & 13
with responsive documents that fall into the scope of relevant comparator discovery
defined above. If no further responsive information exists, Zimmer Biomet shall
alternatively produce an affidavit or other verified response confirming that fact.

Barney clarified her reference to “employment agreement” made in her original RFP 13 in her counsel’s
letter dated January 26, 2018, as “any written agreement between Zimmer and an executive-level
employee which provides for a monetary or other benefit at the end of an employee’s employment.” [DE
104-4 at 6]. The Court incorporates this clarification into its more succinct reference to “employment
agreements providing for severance benefits.”
4

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Through RFP 15, Barney seeks information related to severance pay for 13
enumerated individuals that Barney believes may be legitimate comparators. [DE 104-1
at 12–13]. As already noted, Zimmer Biomet produced such information for seven of
those individuals, including Barney herself. Zimmer Biomet properly withheld the
information as to four individuals who remain employed by Zimmer Biomet, a point
Barney does not challenge. However, Barney still seeks responsive information
regarding the remaining two individuals, Former CEO Dvorak and David Lino.
As to Former CEO Dvorak, Zimmer Biomet has produced some information in
response to Barney’s discovery requests generally. Additionally, Dvorak sat for a fivehour deposition in May of 2018. Zimmer Biomet, however, has withheld any further
information arguing that it is irrelevant here because Dvorak is not and cannot be a
comparator to Barney in this case. Zimmer Biomet also objects to Barney’s requests for
further personal and confidential information from and about Dvorak arguing that they
amount to a fishing expedition intended to harass Dvorak.
Barney, on the other hand, argues that Dvorak could be a legitimate comparator
and that the determination of his status as a comparator is a task reserved for the factfinder, not Zimmer Biomet. Indeed, this same argument is the primary focus of the
parties’ dispute over Dvorak’s deposition testimony and his response to the subpoena
duces tecum served upon him, which will be addressed fully in subsequent sections of
this Opinion and Order. Suffice it to say, as to this matter, Dvorak is not and cannot be a
potential comparator. Therefore, Zimmer Biomet need not supplement its response to
Barney’s RFP 15 as to Dvorak beyond any supplementation ordered below.
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However, Barney still seeks RFP 15 severance pay information regarding David
Lino. 5 Zimmer Biomet contends that there is no basis for David Lino as a potential
comparator but did not develop an argument supporting its position. Undeveloped
arguments are considered waived. See Gross v. Town of Cicero, 619 F.3d 697, 704-05 (7th
Cir. 2010). Accordingly, any argument as to the discoverability of David Lino’s
severance pay information requested in Barney’s RFP 15 is waived. Zimmer Biomet
must now supplement its response to RFP 15 with responsive documents regarding
David Lino.
B.

Additional Deposition Testimony

On May 8, 2018, Barney deposed Zimmer Biomet’s Former CEO Dvorak for five
hours. Dave Kunz, Zimmer Biomet’s Senior Vice President for Global Quality and
Regulatory Affairs was then deposed on June 6, 2018. Both Dvorak and Kunz were
represented at their depositions by Zimmer Biomet’s attorney in this case, Troy Brown,
who advised them not to answer certain questions given their scope.

Zimmer Biomet suggested that Barney abandoned her request for Lino information but without basis as
her Renewed Motion explicitly complains that Zimmer Biomet “has not produced documents related to
. . . David Lino.” [DE 104 at 23]. Barney also reiterates in her reply brief that she seeks the remaining
responsive documents related to David Lino. [DE 114 at 15].
5

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Through her Renewed Motion, Barney asks the Court to require both
depositions to be reconvened to answer these unanswered questions.
As a preliminary matter, Barney suggests that Attorney Brown improperly
instructed Dvorak and Kunz not to answer the questions at issue here citing Fed. R. Civ.
P. 30(c)(2), which only authorizes such an instruction “when necessary to preserve a
privilege, to enforce a limitation ordered by the court, or to present a motion under Rule
30(d)(3).” Rather than respond to Barney’s Rule 30(c)(2) procedural argument, Zimmer
Biomet seeks a protective order prohibiting the reconvening of both depositions arguing
that the unanswered questions seek information that is irrelevant to Barney’s gender
discrimination claims. Further, Zimmer Biomet argues that the unanswered questions
are purely harassing in nature because they seek irrelevant, personal and confidential
information.
Regardless of these arguments, Zimmer Biomet has not demonstrated that any of
the Rule 30(c)(2) circumstances that could justify Attorney Brown’s instruction to Dvorak
and Kunz applied. Zimmer Biomet has not argued that any of the questions at issue
implicated privilege worthy of preservation. This Court has not issued any previous
order as to the subject of the questions at issue. And no formal Rule 30(d)(3) motion was
filed seeking termination of or limitation on the depositions based on bad faith conduct
“that unreasonably annoys, embarrasses, or oppresses the deponent or party.” Without
more, Attorney Brown’s instruction to Dvorak and Kunz was likely improper.
However, this Court disfavors resolution of parties’ disputes on technicalities
rather than the merits. As such, determining the relevance of the unanswered questions
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to Barney’s claims is necessary to ensure a just outcome in this case. See Fed. R. Civ. P. 1.
Important to that consideration will be the allegedly harassing quality of the questions.
1.

Dvorak

The primary issue raised by the parties in their dispute over the relevance of the
actual circumstances of Dvorak’s separation from Zimmer Biomet and his postemployment compensation and obligations is whether Dvorak, as the former CEO,
could be a legitimate comparator for Barney in relation to her discrimination claims. If
Dvorak could be a comparator, then the circumstances of his separation and his postemployment compensation and obligations would undeniably be relevant to Barney’s
claims. After all, key points of comparison between Barney and Dvorak in the similarly
situated analysis would be the circumstances of their separations from the Company
and the severance decisions for each of them as departed executive-level employees.
But Barney has overestimated Dvorak’s potential as a legitimate comparator.
As CEO, Dvorak was one of a kind, different from all other Zimmer Biomet
employees. The differences between the duties and responsibilities of any corporate
CEO compared to any Senior VP are considerable. And here, Barney and Dvorak were
not even supervised by the same person. Instead, Dvorak was Barney’s supervisor
while Dvorak was only accountable to the Board of Directors. See Kuttner v. Zaruba, 819
F.3d 970, 974 (7th Cir. 2016) (stating that valid comparators typically “dealt with the
same supervisor, were subject to the same standards, and had engaged in similar
conduct without such differentiating or mitigating circumstances as would distinguish
their conduct or the employer’s treatment of them.”); see also Humphries, 474 F.3d at 404–
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05. Thus, any commonality between the severance provisions in Barney’s and Dvorak’s
relevant employment agreements 6 is mitigated because of the substantial differences in
duties, responsibilities, and supervisors. See Humphries, 474 F.3d at 404–05.
Nevertheless, there are other reasons why some of the information Barney seeks
through the unanswered deposition questions could be relevant to her claims.
a.

Actual Circumstances of Dvorak’s Departure

Barney bases her Title VII disparate treatment claims on her alleged constructive
discharge, which she asserts constitutes the adverse employment action central to her
Title VII claim. See Coleman, 667 F.3d at 845; Chapin, 621 F.3d at 679. In employment
discrimination cases, constructive discharge occurs “[w]hen an employer acts in a
manner so as to have communicated to a reasonable employee that she will be
terminated.” Chapin, 621 F.3d at 679. The dismissal of Barney’s state law constructive
discharge claim does not resolve the factual question of whether Barney resigned
because of a reasonable belief that she would be terminated because of her refusal to
comply with the direct orders of both Dvorak and other senior executives like herself.
As such, the actual circumstances of Dvorak’s separation from Zimmer Biomet could
offer useful insight as to the culture and priorities of Zimmer Biomet that would have
affected the orders given to Barney during his tenure as CEO.
Zimmer Biomet, on the other hand, contends that Dvorak need not answer
further deposition questions regarding the circumstances of his departure because
6

[DE 116 at 7–8].

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a Zimmer Biomet press release, which was publicly filed with the
SEC, reported that he “stepped down.” [See DE 106-2 at 9]. However, the press release
does not address all the relevant issues surrounding Dvorak’s departure. A key to
resolving Barney’s disparate treatment claims will be a determination of whether she
was voluntarily or involuntarily terminated because the CIC provision in her
employment agreement limits her severance benefits if she voluntarily resigns without
good reason. [DE 23-1 at 7]. Discovery into the circumstances that led Dvorak to “step
down”—whether voluntarily or involuntarily—is relevant to understanding the
corporate expectations that would have affected both his and Barney’s departure.
Additionally, the voluntariness of Dvorak’s separation goes to the credibility of
Zimmer Biomet in its SEC filings—an issue relevant to Barney’s claim that she was
ordered to “concoct a story” for investors as to poor returns in the third quarter of 2016.
For instance, the vague phrase “stepping down” in Zimmer Biomet’s SEC filing gives
no clear indication of the voluntariness of Dvorak’s departure.

[See DE 116 at 10 (citing DE 106-7 at 2]. Such
conflicting language brings into question Zimmer Biomet’s accuracy in using vague
language about Dvorak’s departure in its SEC filing and could show a propensity to
support other misrepresentations like those allegedly demanded of Barney. As such,
Barney’s eleven unanswered questions as to the actual circumstances of Dvorak’s
separation address issues relevant to Barney’s claims and should be answered. [See DE
104 at 7–8].
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b.

Dvorak’s Post-Employment Compensation from and
Obligations to Zimmer Biomet

The relevance of Dvorak’s post-employment compensation from and obligations
to Zimmer Biomet to Barney’s claims is less obvious. First, Barney contends that this
information is relevant to determining whether Dvorak is a legitimate comparator—a
less than persuasive argument as discussed above. Second, Barney argues that the terms
of Dvorak’s post-employment relationship with Zimmer Biomet are relevant to his bias.
Barney suggests that any compensation, especially any compensation related to
Dvorak’s preparation for participation in this litigation, could establish loyalties to
Zimmer Biomet that taint his testimony. Regardless of whether post-employment
compensation can or cannot establish such bias, Barney is entitled to test the reliability
of any witness. Cf. Digan v. Euro-American Brands, LLC, No. 10 C 799, 2012 WL 668993, at
*5 (N.D. Ill. Feb. 29, 2012) (“[Plaintiff] is entitled to the information to prepare for
possible cross-examination.”).
With that said, Zimmer Biomet has already produced certain information about
Dvorak’s post-employment compensation and obligations.

7

Moreover, Zimmer
Biomet contends that the fact that Dvorak, a departing CEO of a publicly traded

7

[DE 112 at 25 n.19].

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company, was compensated following his departure is publicly available as required
for publicly traded companies. Barney offers nothing to suggest that the information
already available to her is insufficient to test Dvorak’s biases on cross-examination.
Without more, the Court is persuaded that requiring Dvorak to answer further
questions about his post-employment compensation from and obligations to Zimmer
Biomet would be unnecessarily cumulative and harassing.
c.

Information about the Q3 2016 Earnings Call

Barney seeks responses to questions attempting to ascertain why Dvorak did not
mention the FDA audit and complete production halt on the Q3 2016 earnings call.
Barney alleges that during preparations for the call, she had been asked by the CFO to
“concoct a ‘story’ to mislead investors about the root cause of [sales] shortfalls” that
quarter. [DE 104 at 13]. Barney believes that the FDA audit and product holds were to
blame and refused to lie, which lead, in part, to her resignation due to her concern that
she could be held criminally liable for securities misrepresentations. As such, she
contends that the earnings call is relevant to her case, which is premised on her fear of
criminal liability if she had made the misrepresentations the CFO ordered.
There is no doubt that the content of the earnings call is relevant to Barney’s
claims. In fact, Barney already has a transcript from the call from which she can see
exactly what Dvorak said on the call, including the fact that he did not mention the FDA
audit or product holds. [See DE 104-11]. Barney also gleaned additional information
about the call through Dvorak’s deposition testimony.

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. Despite her arguments, Barney has not shown that she is
entitled to Dvorak’s underlying rationale for his statements or omissions on the call.
Moreover, Zimmer Biomet reasonably points out that Barney’s questions about
Dvorak’s rationale go to his state of mind, which is relevant to the claims raised in the
parallel securities fraud case Shah v. Zimmer Biomet Holdings but not to Barney’s
discrimination claims in this case. Therefore, Dvorak need not answer Barney’s two
remaining questions about the Q3 2016 earnings call.
Thus, as to Dvorak, the only question remaining is whether his deposition
should be reconvened to secure answers to the eleven questions regarding the actual
circumstances of his departure from Zimmer Biomet. As Zimmer Biomet correctly
notes, reconvening the deposition will incur costs and pose an additional burden on
Dvorak, a non-party. Yet, Zimmer Biomet’s attorney improperly instructed Dvorak not
to answer these relevant questions without even an attempt to fall within the
requirements of Rule 30(c)(2). Moreover, Dvorak was only deposed for five hours even
though the Court allowed for depositions up to seven hours in its Rule 16(b) Scheduling
Order. [DE 94 at 1]. Thus, unless the parties identify and agree to an alternative method
for securing Dvorak’s answers to these questions, the parties shall reconvene Dvorak’s
deposition for a maximum of two additional hours and for the limited purpose of
answering the eleven unanswered questions about the actual circumstances of his
departure.8

This order now provides the basis for an objection under Rule 30(c)(2) should Barney’s counsel stray
from the scope of the deposition allowed herein.
8

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2.

Kunz

Barney also wants to reconvene Dave Kunz’s deposition so that he can answer
the one question Attorney Brown instructed him not to answer during his June 2018
deposition as well as any follow-up questions that may arise. At issue is Barney’s
question asking Kunz to identify the terms of his severance agreement. Barney argues
that Attorney Brown’s instruction to Kunz not to answer the question based on “scope”
did not comply with Fed. R. Civ. P. 30(c)(2). Barney also directs the Court to his
argument made in support of the non-party subpoenas that “information about Mr.
Kunz’s compensation is relevant to show bias.” [DE 104 at 15].
While Attorney Brown’s instruction to Kunz was probably improper under Rule
30(c)(2), Barney has not demonstrated the relevance of Kunz’s severance agreement to
this case. Barney does not suggest that Kunz’s severance agreement is relevant to her
assessment of potential comparators. Instead, Barney seems to suggest that Kunz’s
compensation could bias his testimony in this lawsuit. This is not a shocking revelation.
Kunz is still employed by Zimmer Biomet, is necessarily compensated for his work, and
is probably even loyal to his employer generally. Yet Barney has not shown that the
promise of future severance benefits in certain circumstances could, let alone would,
increase any bias in his testimony. Unsubstantiated claims of bias have led this Court to
deny motions to compel in the past. See, e.g., Henman v. Ind. Harbor Belt R.R. Co., Cause
No. 2:14-CV-434-JTM-JEM, 2015 WL 6449693, at *2 (N.D. Ind. Oct. 22, 2015). Without
more, Barney’s motion to compel is not justified as to the Kunz deposition question.

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C.

Non-party Deponents’ Subpoena Responses

Attached to the notices of deposition served upon Dvorak, Kunz, Florin, and
Fisher 9 in early 2018 were subpoenas duces tecum commanding production of “[c]opies
of any and all contracts or agreements that you signed with Zimmer Biomet or its
predecessor companies, including but not limited to employment agreements,
severance agreements, noncompetition agreements, and nondisclosure agreements, and
a copy of your current resume 10.” [DE 104-2 at 1–17]. Zimmer Biomet objected to the
requests as overbroad, unduly burdensome, and duplicative of RFPs 13 and 15 to
Zimmer Biomet.
Recognizing these arguments, Barney’s Renewed Motion to Compel only seeks
“[d]ocuments which provide or purport to provide any monetary benefit to the
deponents, or which prevent or purport to prevent the disclosure of the receipt of any
such benefits or any other information about which any of the deponents may be
required to testify.” [DE 114 at 14]. In support, Barney argues that the requested
documents are relevant to the potential bias of these witnesses. In support, she directs
the Court’s attention to events prior to Dvorak’s deposition whereby she was told, on
two occasions in April 2018, that Dvorak was receiving no compensation in connection
with assistance provided in this case

The same deposition and subpoena were served on Mike Norris, Zimmer Biomet’s former Vice
President of Tax in early 2018. [DE 104-2 at 18–21]. However, Barney indicates that she no longer seeks
information related to Mr. Norris. [DE 104 at 17 n.5].
10 Barney is not raising any concerns about the resumes in her Renewed Motion to Compel.
9

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Yet Barney’s efforts to clarify her
requests and tailor them to the issue of bias fail.
First, Dvorak has already produced sufficient documentation of his
compensation, especially his compensation related to his assistance with this case, as
discussed above. Therefore, Dvorak need not produce any additional documents in
response to Barney’s subpoena.
Second, Barney’s allegedly narrowed request is not particularly narrow as to
Kunz, Florin, and Fisher. It still seeks all documents providing “any monetary benefit”
to the deponents without any showing of relevance to her discrimination claims or to
the bias of these deponents. As discussed above, current employees like Kunz, Florin,
and Fisher obviously receive compensation or “monetary benefit” from Zimmer Biomet
and probably have loyalties to Zimmer Biomet as a result. This is not unique to this case
or plainly relevant to the potential bias of these deponents. Moreover, the deponents’
compensation agreements implicate their privacy interests that are worthy of protection
given Barney’s failure to demonstrate relevance. See Henman, 2015 WL 6449693, at *2–*3.
To the extent Barney’s allegedly narrowed request reflects a concern that Kunz, Florin,
and Fisher may be bound by non-disclosure agreements that might lead them to
withhold relevant information related to this case, Barney still offers nothing to
substantiate her fear. Thus, demanding that Kunz, Florin, and Fisher produce their
assorted agreements with Zimmer Biomet is neither warranted nor proportional.
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D.

Rule 37(a)(5) Reasonable Expenses

Based on the Court’s findings outlined above, the Court will be granting in part
and denying in part Barney’s Renewed Motion to Compel. Under Fed. R. Civ. P.
37(a)(5)(C), when a motion to compel “is granted in part and denied in part, the court
may issue any protective order authorized under Rule 26(c) and may, after giving an
opportunity to be heard, apportion the reasonable expenses for the motion.” Here, the
discovery disputes at issue in Barney’s Renewed Motion to Compel have plagued this
aging case for a long time. Ultimately, the parties and their counsel pressed these issues
into the Court’s hands following an inconstant effort on their part to resolve the
dispute, which failed to produce a clear commitment to meaningful negotiation or
compromise. In effect, the parties and counsel caused the expenditure of time and
money on these issues, which could have been mitigated further or possibly eliminated
altogether. Therefore, the parties shall be responsible for their own expenses in
litigating Barney’s Renewed Motion to Compel.
III.

MOTIONS TO SEAL
Accompanying the briefing of Barney’s instant Renewed Motion to Compel are

three motions to seal certain exhibits attached to the briefing as well as portions of each
brief discussing the exhibits. These motions invoke this Court’s existing protective order
[DE 35] and its previous order to seal certain confidential information filed in related to
other motions [DE 60 at 9] in support of the parties’ requests to seal exhibits and briefs
related to the instant motion. Upon review of the relevant record, the Court finds that
the parties have demonstrated good cause to seal the briefs and exhibits as requested.
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See Citizens First Nat’l Bank of Princeton v. Cincinnati Ins. Co., 178 F.3d 943, 944 (7th Cir.
1999). Accordingly, the Court grants all three motions to seal as outlined below.
IV.

CONCLUSION
For the reasons discussed above, the Court

(1)

GRANTS IN PART Barney’s Renewed Motion to Compel. [DE 103].
(a)

On or before July 15, 2020, Zimmer Biomet must:
•

Supplement its answers to Barney’s ROGs 7 & 8 in verified Interrogatory
form as outlined above;

•

Supplement its responses to Barney’s RFP 5 & 13 consistent with the scope
of relevant comparator discovery outlined above, OR serve an affidavit or
verified response upon Barney stating that no further responsive
information exists; AND

•

Supplement its response to Barney’s RFP 15 with responsive information
regarding David Lino

(b)

On or before August 1, 2020,
•

•

(2)

David Dvorak must appear for no more than two additional hours of
deposition to answer the eleven previously unanswered questions
regarding the actual circumstances of his departure from Zimmer Biomet,
as restated in Barney’s Motion. [See DE 106 at 7–8]; BUT
Barney is BARRED from asking Dvorak:
o the nineteen unanswered questions regarding his post-employment
compensation from and obligations to Zimmer Biomet [DE 106 at
10–11]; and
o the two unanswered questions regarding the Q3 2016 investor call
[DE 106 at 14].

DENIES IN PART Barney’s Renewed Motion to Compel [DE 103] as to:
•

Reconvening the deposition of Dave Kunz; AND

•

Further compliance with the nonparty subpoenas to David Dvorak, Dave Kunz,
Dan Florin, and Bill Fisher.
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(3)

GRANTS the parties’ motions to seal [DE 105, DE 111, DE 115] and DIRECTS
the Clerk to maintain under seal DE 106, DE 112, and DE 116 and all exhibits
attached to those filings.
In light of the confidential nature of information included in all the briefs and

some of the exhibits related to Barney’s Renewed Motion to Compel, the Court also
DIRECTS the Clerk to maintain this Opinion and Order under seal. The parties may file
a motion to redact portions of this Opinion and Order, if deemed necessary. If no such
motion is filed by July 15, 2020, the Clerk will be directed to unseal this Opinion and
Order and release it in full on the public docket of this Court.
SO ORDERED this 10th day of July 2020.
s/Michael G. Gotsch, Sr.
Michael G. Gotsch, Sr.
United States Magistrate Judge

30