ADESANYA v. NOVARTIS PHARMACEUTICALS CORPORATION

Filing 115

OPINION AND ORDER granting in part and denying in part motion to compel pltf. to produce the computer used for work with LaRon Pharma, Inc., etc.. Signed by Magistrate Judge Steven C. Mannion on 10/16/2015. (nr, )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
NOT FOR PUBLICATION
AFOLUSO ADESANYA,
Plaintiff,
v.

Civil Action No.
2:13-CV-5564-SDW-SCM

NOVARTIS PHARMACEUTICALS
CORPORATION,

OPINION AND ORDER ON
DISCOVERY DISPUTES
[D.E. 65, 71, 112]

Defendants.
I.

INTRODUCTION
This matter comes before the Court upon informal motion by

Defendant Novartis Pharmaceuticals Corporation (“Defendant”) to
compel Plaintiff Dr. Afoluso Adesanya (“Plaintiff”) to produce
the computer she used for work with LaRon Pharma Inc. (“LaRon”),
and informal motion by Plaintiff for a protective order to block
or limit the production.
71, 112).

See (ECF Docket Entry No. (“D.E.”) 65,

Upon consideration of the parties' submissions and

for the reasons set forth herein, both motions are granted in
part and denied in part.
II.

BACKGROUND AND PROCEDURAL HISTORY
The controlling pleadings are Plaintiff’s Amended Complaint

and Defendant’s Answer and Counterclaim.

(D.E. 57, 60).

The

initial complaint was filed on September 19, 2013. (D.E. 1).
Defendant answered and filed its counterclaim on December 6,

2013. (D.E. 7).
(D.E. 9).

Plaintiff moved to dismiss the counterclaims.

That motion was denied. (D.E. 17).

Plaintiff

subsequently amended her pleading to assert claims under the
Americans with Disabilities Act. (D.E. 57).
On August 19, 2014, the Court entered an initial scheduling
order. (D.E. 22).

The Scheduling Order prescribed the timing

for the parties to serve and respond to discovery requests in
accordance with Federal Rules of Civil Procedure.
On October 7, 2014, the Court entered a Discovery
Confidentiality Order. (D.E. 28).

An Amended Scheduling Order

was filed on January 22, 2015. (D.E. 43).
According to the Amended Complaint:

Defendant unlawfully

terminated her employment in violation of the Family Medical
Leave Act and New Jersey Law Against Discrimination. (D.E. 57).
Plaintiff is a medical doctor. (Id. at ¶ 13).

She was hired by

Defendant on about March 22, 2010, and worked in the position of
senior brand safety leader.

(Id. at ¶ 9).

Plaintiff was

considered to be an employee within defendant's integrated
medical safety department group, and her overall manager during
her period of employment was Annick Krebs. (Id. at ¶ 11).
Though Ms. Krebs was the overall department group manager,
Plaintiff had varying operational managers. (Id. at ¶ 12).

2

Plaintiff allegedly suffers from various health conditions,
which include but not are limited to neck problems, limitations
with her left hand, chronic back problems, dry eyes and acid
reflux. (Id. at ¶ 14).

From the commencement of her employment,

Plaintiff regularly worked remotely and typically worked at
least two days or more per week from home.

(Id. at ¶ 15).

During Plaintiff's last approximate 14 months of
employment, mid-2012 through her termination September 2013 with
Defendant, she felt that she was being discriminated against due
to her health conditions. (Id. at ¶ 21).

In or about the time

frame of May and June 2012, Plaintiff was communicating with
Megan Burley, a director of human resources. (Id. at ¶ 22).
Plaintiff was having complications with her health, and she was
generally discussing these problems with Defendant's management
and human resources personnel. (Id. at ¶ 22).
On March 22, 2013, Plaintiff met with Valerie Acito, the
global head of human resources for Defendant, and expressed
concerns of discrimination. (Id. at ¶ 46, 48).

Early in April

2013, Plaintiff was contacted by Denise Konopka, the Associate
Director of Employee Relations for Defendant. (Id. at ¶ 48).
On about September 4, 2013, Plaintiff’s employment was
terminated by Defendant. (Id. at ¶ 56).

Defendant contends, in

answer to interrogatory number three, Plaintiff was terminated
3

for a number of reasons, including but not limited to concerns
regarding her conduct and attitude, including engagement and
conduct contrary to the company's values and behaviors, refusal
to follow directives of her supervisors, performance
deficiencies, and failure to consistently work in the office as
directed.
According to Defendant’s Counterclaims, Plaintiff applied
for and was hired as a brand safety leader at Defendant’s
headquarters in East Hanover, New Jersey. (D.E. 60, Counterclaim
at ¶ 9, 11).

Plaintiff’s résumé and employment application

indicated that she was currently and had been since in or about
November 2007, been employed as a medical director with Global
Drug Safety and Surveillance Inc.1 (Id. at ¶ 2).

Defendant

states that Plaintiff’s resume named her supervisor at Global
Drug Safety and indicated that she was responsible for drug
safety and pharmaco vigilance activities for assigned products.
(Id.).
Plaintiff signed her application for employment certifying
the information provided in the application was correct and that
any falsification was grounds for immediate dismissal. (Id. at ¶
3).

Plaintiff's representations concerning Global Drug and

LaRon Pharma Inc. (a/k/a Global Drug Safety & Surveillance Inc.)
("LaRon"). (D.E. 65 at 1). “Plaintiff was 50% owner” of LaRon.
(D.E. 65 at 3).
1

4

Safety were, at least as alleged by Defendant, false.
4).

(Id. at ¶

Defendant avers that Plaintiff was not an employee of

LaRon, but was instead its owner and operator.

The

representations were allegedly material to Defendant’s decision
to offer employment to Plaintiff. (Id. at ¶ 7).
Defendant also claims fraud with regard to the parties’
relocation authorization agreements.

(Id. at ¶ 11).

It alleges

that on about March 1, 2010, Plaintiff accepted a full-time,
office-based position with Defendant at its East Hanover, New
Jersey, location.

As part of Defendant’s offer of employment,

it offered Plaintiff a relocation package to move from her home
in Ambler, Pennsylvania, to a location closer to its
headquarters in East Hanover. (Id. at ¶ 12).
Defendant contends that the representation that Plaintiff
intended to relocate was false, that she made such
representation knowing it to be false or with reckless disregard
to the truth or falsity of the representation with the intent to
deceive and induce Defendant to rely on the representation by
furnishing relocation monies to her. (Id. at ¶ 16).
Plaintiff’s starting salary was $243,000, and she received
a $35,000 sign-on bonus. (Id. at ¶ 28).

Over the next three

years, Plaintiff allegedly received over $210,400 in additional
compensation from participation in an annual incentive plan and
5

the awards of stock options. (Id. at ¶ 30). Payment under the
annual incentive plan was subject to the employee's adherence
and compliance with Defendant’s policies and procedures,
including without limitation the Defendant’s conflict of
interest policy and code of conduct. (Id. at ¶ 31).

Defendant

asserts that Plaintiff engaged in behavior constituting
egregious violations of company policy, including but not
limited to multiple substantial material violations of the
Defendant’s conflict of interest policy. (Id. at ¶ 33).

III.

DISCUSSION
Magistrate

judges

are

authorized

by

28

U.S.C.

§

636(b)(1)(A) to decide any non-dispositive motion designated by
the Court.
may

determine

72.1(a)(1).
Rule

This District has specified that magistrate judges

37.1

any

non-dispositive

pre-trial

motion.

L.Civ.R.

This District has further provided in Local Civil
that

discovery

disputes

are

magistrate judge on an informal basis.

to

be

brought

to

the

Decisions by magistrate

judges must be upheld unless “clearly erroneous or contrary to
law.” 28 U.S.C. § 636(b)(1)(A).
Defendant seeks to examine documents within a computer that
Plaintiff used while working for LaRon. (D.E. 65).

Its proposed

scope of examination appears to have expanded since this dispute
6

was first raised, and
(Id.).

would cover

November 2007 to present.

Plaintiff objects and informally requests a protective

order to prohibit the examination or limit the scope to her
dates of employment from March 2010 to September 2013. (Id.).
With regard to the scope of the examination, the Federal
Rules

of

providing

Civil

Procedure

discovery.”

(D.N.J. 2006).

set

Jones

forth

v.

“a

DeRosa,

liberal
238

policy

F.R.D.

157,

for
163

Federal Rule of Civil Procedure 26 defines the

bounds of relevant discovery.

Fed.R.Civ.P. 26.

Pursuant to

subparagraph (b)(1), “parties may obtain discovery regarding any
matter, not privileged that is relevant to the claim or defense
of any party.” Fed.R.Civ.P. 26(b)(1).

The Federal

Rules of

Civil Procedure “allow broad and liberal discovery.” Pacitti v.
Macy’s,

193

F.3d

766,

777

(3d

Cir.

1999).

Courts

have

interpreted the federal rules to mean that discovery encompasses
“any matter that bears on or reasonably could lead to other
matters that could bear on any issue that is or may be in the
case.” Kopacz v. Del. River and Bay Auth., 225 F.R.D. 494, 496
(D.N.J. 2004).
In interpreting Rule 26(b)(1), district courts must remain
mindful that relevance is a broader inquiry at the discovery
stage than at the trial stage.

Nestle Foods Corp. v. Aetna Cas.

& Sur. Co., 135 F.R.D. 101, 104 (D.N.J. 1990).

7

Accordingly,

Rule 26(b)(1) provides that “[f]or good cause, the court may
order discovery of any matter relevant to the subject matter
involved in the action.”
“Although the scope of discovery under the Federal Rules is
broad, this right is not unlimited and may be circumscribed.”
Bayer AG v. Betachem, Inc., 173 F.3d 188, 191 (3d Cir. 1999).
The

computer

here

and

information

on

it,

at

least

in

part,

likely concerns business dealings having nothing to do with this
case and is not owned exclusively by Plaintiff.

Therefore, some

limits will be imposed.
For

purposes

of

these

informal

motions

only,

the

Court

makes the following findings of fact and conclusions of law:
On or about September 4, 2013, Defendant terminated
Plaintiff’s employment.

Prior to the termination, Plaintiff’s

starting salary was $243,000, she received a $35,000 sign-on
bonus, and received over $210,400 in bonuses from an annual
incentive plan.

Defendant’s stated reasons for the termination

include concerns regarding Plaintiff’s conduct and attitude,
including engagement and conduct contrary to the company's
values and behaviors, refusal to follow directives of her
supervisors, performance deficiencies, and failure to work in
the East Hanover office.

8

Plaintiff was a part owner of LaRon Pharma Inc. (a/k/a
Global Drug Safety & Surveillance Inc.).

The computer used by

Plaintiff for work with LaRon, constitutes discovery within her
possession, custody, or control because she has “actual
possession, custody, or control, or has the legal right to
obtain the documents on demand.” In re Bankers Trust Co., 61
F.3d 465, 469 (6th Cir.1995).

Documents from the computer

during the scope of Plaintiff’s employment with Defendant are
arguably relevant to claims that Plaintiff unethically competed
with her employer.

They may also be relevant to claims that

Plaintiff’s health conditions did or did not prevent her from
travelling to East Hanover for work with Defendant. (D.E. 71).
Defendant argues that documents preceding Plaintiff’s work
period, are relevant to its claim of resume fraud.

Plaintiff

shall produce the LaRon computer in the manner in which it has
been stored in the ordinary course of business.
Furthermore, the parties dispute what information from the
examination

must

be

produced

to

Plaintiff.

(D.E.

65).

The

parties are subject to the requirements to amend and supplement
their disclosures and discovery responses as required by Rule
26(e).

Defendant shall have the LaRon computer retrieved from

Plaintiff using a third-party vendor to be delivered to a thirdparty vendor who will image the hard drive.

9

Defendant shall

then have the computer returned to Plaintiff using a third-party
vendor.
Defendant

shall

provide

all

vendors

involved

with

this

Order a copy of this Order and the Discovery Confidentiality
Order in this case.

Defendant will also ensure that each vendor

acknowledges the applicability of the Order to the services they
are providing in relation to this case.

If Plaintiff wants an

image of the hard drive, she will contact Defense counsel to
make arrangements to have half of the imaging cost paid on her
behalf.
Defendant

has

asserted

counterclaims

for

resume

fraud.

Whether these are actually counterclaims or are an affirmative
defense for after acquired evidence of misconduct is possibly an
issue

to

be

resolved

by

the

District

Judge

on

another

day.

Either way, being mindful of the scope of discovery permitted by
the

rules,

Defendant

is

permitted

discovery

regarding

(a)

whether Plaintiff competed with Defendant during her employment
with

Defendant;

otherwise

during

(b)
her

whether

Plaintiff

employment

with

traveled
Defendant;

for
(c)

work

or

whether

Plaintiff was an employee of LaRon, as opposed to just an owner,
and

if

so,

whether

her

duties

submitted on her resume.

10

reflected

the

representations

IV.

CONCLUSION
For the foregoing reasons, and good cause shown,
IT IS on this Friday, October 16, 2015,
1. ORDERED that Defendant’s motion to compel production of the
LaRon computer used by Plaintiff is granted in part; and it
is further
2. ORDERED that Plaintiff shall produce the LaRon computer
within the next 10 days in the manner in which it has been
stored in the ordinary course of business; and it is
further
3. ORDERED that Defendant shall have the LaRon computer
retrieved from Plaintiff using a third-party vendor to be
delivered to a third-party vendor who will image the hard
drive from the LaRon computer.

Defendant shall then have

the computer returned to Plaintiff using a third-party
vendor; and it is further
4. ORDERED that Plaintiff’s motion is granted in part, and
Defendant’s examination of the LaRon computer shall be
limited to discovery regarding (a) whether Plaintiff
competed with Defendant during her employment with
Defendant; (b) whether and when Plaintiff traveled for work
or otherwise during her employment with Defendant; (c)
whether Plaintiff was an employee of LaRon, as opposed to

11

just an owner, and if so, whether her duties reflected the
representations submitted on her resume; and it is further
5. ORDERED that Defendant shall immediately provide Plaintiff
with a copy of this Order and provide all involved vendors
with this Order and the Discovery Confidentiality Order in
this case and ensure that they acknowledge the
applicability of these Orders to the services they are
providing in relation to this case; and it is further
6. ORDERED that if Plaintiff wants an image of the hard drive,
she will contact defense counsel within seven days of
receiving this Order to make arrangements to have half of
the imaging cost paid on her behalf; and it is further
7. ORDERED that the Clerk of the Court provide a copy of this
Order to Plaintiff.

10/16/2015 3:59:33 PM

12

Original: Clerk of the Court
cc: All parties
File
Dr. Afoluso Adesanya
389 Highgate Drive
Ambler, PA 19002

13