RYBAK v. ELI LILLY AND COMPANY et al

Filing 57

Minute Entry for proceedings held before Magistrate Judge Tim A. Baker: Status Conference held on 2/21/2020 to address a discovery dispute. See entry for details.(ADH)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
GENNADIY RYBAK,
Plaintiff,
v.
ELI LILLY AND COMPANY,
VERONIQUE LUTZ,
RAYMOND MULLER,
Defendants.

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No. 1:18-cv-01802-TWP-TAB

ORDER ADDRESSING DISCOVERY DISPUTE
The parties appeared by counsel February 21, 2020, for a telephonic status conference to
address a discovery dispute. The Court heard argument and now issues its order.
Plaintiff Gennadiy Rybak is a former Eli Lilly and Company employee. Rybak alleges
Lilly terminated him in July 2018 in retaliation for taking leave under the Family and Medical
Leave Act. He claims his termination violated both the FMLA and the Americans With
Disabilities Act. Defendants deny any unlawful action and contend Lilly eliminated Plaintiff’s
position as part of a reorganization. Plaintiff served interrogatories and requests for production
that drew numerous objections, as did Rybak’s request to depose Lilly CEO Dave Ricks. The
discovery dispute at issue primarily revolves around the proper scope of this case. Rybak
contends his termination was related to a voluntary early retirement program (“VERT”) in which
approximately 3,500 Lilly employees lost their jobs. Rybak seeks a variety of information
related to the VERT terminations, including Ricks’ deposition. Lilly does not dispute that a
VERT occurred, or that Ricks had some involvement in the VERT. Lilly strongly disputes that
Rybak’s termination had anything to do with the VERT, or that Ricks was involved in Rybak’s

termination. Instead, Lilly contends, Rybak was terminated as part of a “re-allocation” that often
occurs at Lilly due to budgetary issues. Therefore, Lilly argues that discovery related to the
VERT is irrelevant and not proportional to the needs of the case. Lilly makes the same
arguments in an attempt to block Ricks’ deposition, and also asserts that requiring Lilly’s CEO to
be deposed is overkill.
The Court starts with Rybak’s request for Ricks’ deposition. This is overkill. At this
stage, Rybak has nothing linking Ricks to Rybak’s termination except the fact that Ricks is
Lilly’s CEO. Courts generally do not require a company CEO to be deposed as a matter of
course in a lawsuit challenging an employee’s termination. The employee needs to make a more
significant showing to justify such a deposition, though CEOs are far from immune to being
deposed. In this case, Lilly has offered Human Resources Consultant Elizabeth Ackley, who
Lilly represents has knowledge of the circumstances leading to Rybak’s termination. At a
minimum, Rybak needs to start with Ackley’s deposition. This deposition could raise questions
about Rybak’s termination that may require additional depositions, including even Ricks’. At
this stage, however, there simply is no justification for hauling Ricks in for a deposition.
This conclusion is equally applicable to the vast amount of additional information Rybak
seeks. To the extent this information centers on the 3,500 employees terminated as part of the
VERT, such discovery is neither relevant to nor proportional to the needs of the case. If Rybak’s
more focused discovery uncovers a connection between his termination and the VERT, broader
discovery may well be appropriate. It is not at this time.
Finally, Rybak seeks information related to Lilly’s Disability Affirmative Action
Program. Rybak contends he was disabled at the time of his termination and that this program
appears to require Lilly to use affirmative action-type efforts to assist Rybak in either not losing

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his job or in helping him to find another job at Lilly. Lilly disputes the relevance of this program
to the situation at hand. But despite Lilly’s protestations, Lilly provided no persuasive rationale
why this discovery should not be permitted. Accordingly, Rybak is entitled to discovery
regarding this program. This does not open the floodgates for Rybak to request all documents
related to the program. But it does permit him to obtain documents and testimony to help
explain the program and understand whether he was improperly denied some benefit under the
program to which he may have been entitled.
Lilly represented to the Court at the February 21 conference that it possessed additional
information that will be supplemented as part of a supplemental discovery response. Lilly shall
make this supplementation, which shall include the additional information required by this order,
within 21 days. Thereafter, Plaintiff may depose Ackley at a mutually convenient time and
place. If Rybak believes this discovery produces new evidence that justifies further expanding
the scope of discovery to the VERT terminations or elsewhere, counsel shall meet and confer on
the proper scope of any such discovery.
Date: 2/24/2020

_______________________________
Tim A. Baker
United States Magistrate Judge
Southern District of Indiana
Distribution:
Ellen E. Boshkoff
FAEGRE DRINKER BIDDLE & REATH LLP (Indianapolis)
[e-mail]
Angela N. Johnson
FAEGRE DRINKER BIDDLE & REATH LLP (Indianapolis)
[e-mail]

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Tae K. Sture
STURE LEGAL SERVICES LLC
[e-mail]

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