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PAS-L-000455-22 09/28/2023 6:22:47 PM Pg 1 of 29 Trans ID: LCV20232973575
MARTIN MARCELLO, : SUPERIOR COURT OF NEW JERSEY
: LAW DIVISION
Plaintiff, : PASSAIC COUNTY
v. :
: Docket No. PAS-L-000455-22
CORBION d/b/a Caravan Ingredients, Inc., :
STEPHANIE WYPASEK, Individually, and :
JOHN and JANE DOES 1-20, Individually, : CIVIL ACTION
:
Defendants. :
OLIVER MARCELLO, : SUPERIOR COURT OF NEW JERSEY
: LAW DIVISION
Plaintiff, : PASSAIC COUNTY
v. :
: Docket No. PAS-L-00692-22
CORBION d/b/a Caravan Ingredients, Inc., :
STEPHANIE WYPASEK, Individually, and :
JOHN and JANE DOES 1-20, Individually, : CIVIL ACTION
:
Defendants. :
LENIN RODREQUEZ, : SUPERIOR COURT OF NEW JERSEY
: LAW DIVISION
Plaintiff, : PASSAIC COUNTY
v. :
: Docket No. PAS-L-000707-22
CORBION d/b/a Caravan Ingredients, Inc., :
STEPHANIE WYPASEK, Individually, and :
JOHN and JANE DOES 1-20, Individually, : CIVIL ACTION
:
Defendants. :
DEFENDANT CORBION’S BRIEF IN OPPOSITION TO
PLAINTIFFS’ MOTION TO COMPEL DISCOVERY
FISHER & PHILLIPS LLP
430 Mountain Avenue, Suite 303
Murray Hill, NJ 07974
Phone: (908) 516-1050
Fax: (908) 516-1051
Attorneys for Defendants
Of Counsel:
David B. Lichtenberg, Esq. (Attorney ID No. 040021997
Sarah Wieselthier, Esq. (Attorney ID No. 904102012)
On the Brief:
Eliza L. Lloyd, Esq. (Attorney ID No. 111352014)
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TABLE OF CONTENTS
PRELIMINARY STATEMENT ................................................................................................. 1
RELEVANT FACTS AND PROCEDURAL HISTORY .......................................................... 5
LEGAL ARGUMENT .................................................................................................................. 7
I. Standard of Review .................................................................................................................. 7
II. laintiffs Have Failed to Provide Any Legal Basis to Grant Their Motion to Compel
Discovery........................................................................................................................................ 8
A. Plaintiffs are Not Entitled to Sweeping Confidential Personnel Information and
Related Documents Concerning Complaints, Investigations, and Discipline of Other
Current and Former Employees of Corbion .......................................................................... 8
1. Plaintiffs are Not Entitled to Confidential Personnel Records Relating to Discipline
of Current and Former Employees Spanning a Period of Nearly Six (6) Years
(Interrogatory Nos. 46, 89-92, 95-104, 110-162; Request for Production Nos. 72, 74, 75,
97-98, 101-118) ..................................................................................................................... 10
2. Plaintiffs are Not Entitled to the Requested Information and Documentation
Relating to Matthew McMahon (Interrogatory Nos. 106-109; Request for Production
Nos. 85, 88, 89, 90) ............................................................................................................... 16
3. Plaintiffs are Not Entitled to Documents Relating to Investigations into Non-Similar
Conduct (Request for Production No. 166) ........................................................................ 18
B. Plaintiffs’ Requests Relating to “Complaints” and other Cases Against Corbion
Alleging “Workplace Discrimination” or “Employment Discrimination”—or Simply
Relating to Any Employee Termination—and Prior “Accus[ations]” and “Complaints”
of “Any Type of Workplace Discrimination” Against Ms. Wypasek are Overly Broad
(Among other Things) and Seek Information Not Relevant to the Issues in this Litigation
(Interrogatory Nos. 51-53, 244; Request for Production Nos. 203, 205-206)........................ 19
C. Plaintiffs’ Request Relating to the Production of Video Surveillance Belonging to
Corbion is Inappropriate (Interrogatory No. 93) .................................................................. 22
D. Plaintiffs’ Broad Request for Text Messages Should be Denied (Request for
Production No. 131) ................................................................................................................. 22
E. Plaintiffs’ Broad Request for the Nandkumar Litigation File Should be Denied
(Interrogatory No. 238) ............................................................................................................ 23
CONCLUSION ........................................................................................................................... 25
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TABLE OF AUTHORITIES
Page(s)
Cases
Berrie v. Berrie,
188 N.J. Super. 274 (Law Div. 1983) ........................................................................................9
Camden Cnty. Energy Recovery Assocs., L.P. v. New Jersey Dept. of Envtl. Prot.,
320 N.J. Super. 59 (App. Div. 1999) .........................................................................................9
Dixon v. Rutgers,
110 N.J. 432 (1988) ...................................................................................................................9
HD Supply Waterworks Grp., Inc. v. Dir., Div. of Taxation,
29 N.J. Tax 573 (Tax 2017) ...............................................................................................17, 24
Juster Acquisition Co., LLC. v. N. Hudson Sewerage Auth.,
No. 12-cv-3427, 2013 WL 541972 (D.N.J. Feb. 11, 2013) .....................................................22
Korostynski v. State of N.J., Div. of Gaming Enforcement,
266 N.J. Super. 549 (App. Div. 1993) .......................................................................................7
Kresefky v. Panasonic Commc’ns & Sys. Co.,
169 F.R.D. 54 (D.N.J. 1996) ..................................................................................................7, 8
Miles v. Boeing Co.,
154 F.R.D. 112 (E.D. Pa. 1994) .................................................................................................9
Myers v. St. Francis Hosp.,
91 N.J. Super. 377 (App. Div. 1966) .................................................................................17, 24
Payton v. N.J. Turnpike Auth.,
148 N.J. 534 (1997) ...................................................................................................................7
Robbins v. Camden City Bd. of Educ.,
105 F.R.D. 49 (D.N.J. 1985) ......................................................................................................8
Salamone v. Carter’s Retail, Inc.,
No. 09-cv-5856, 2011 WL 310701 (D.N.J. Jan. 28, 2011) ......................................................15
Savoie v. The Lawrenceville Sch.,
No. A-0288-10T1, 2013 WL 1492859 (App. Div. Apr. 12, 2013) ..........................................14
State v. Hutchins,
241 N.J. Super. 353 (App. Div. 1990) .......................................................................................7
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State Statutes
N.J.S.A. § 10:5-1, et seq. .................................................................................................................2
Rules
Rule 4:10-2(a) ..................................................................................................................................7
Rule 1:6-2(c) ....................................................................................................................................1
Rule 1:6-5.........................................................................................................................................1
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PRELIMINARY STATEMENT
Defendant Corbion d/b/a Caravan Ingredients, Inc. (“Corbion” or “Defendant”) submits
this brief in opposition to the September 20, 2023 Motion to Compel Discovery filed on behalf of
Plaintiffs Martin Marcelo, Oliver Marcelo, and Lenin Rodriguez (collectively, “Plaintiffs”).1 For
the reasons set forth herein, Plaintiffs’ motion should be denied in its entirety.
As an initial matter, Plaintiffs’ motion to compel should be denied because Plaintiffs did
not comply with the good faith requirements of Rule 1:6-2(c). Indeed, on June 30, 2023, Corbion
served its written responses to Plaintiffs’ 258 separate interrogatory requests and 225 separate
requests for production of documents, and following the Parties’ entry into a Stipulation of
Confidentiality, produced nearly 3,000 pages of documents (including e-discovery documents).
Plaintiffs made no contentions regarding the purported insufficiency of Corbion’s responses until
almost two and a half months later, when Plaintiffs served Corbion with a sixty-four (64) page
deficiency letter on September 12, 2023. Plaintiffs unreasonably demanded a response within
seven (7) days. Notwithstanding, prior to Plaintiffs’ filing this motion, Defendants’ counsel
advised Plaintiffs’ counsel that Corbion was in the process of responding and would do so by
September 29, 2023 (within two and a half weeks from when Corbion received Plaintiffs’ letter).
Plaintiffs ignored Defendants’ communicated response and filed this motion to compel.
In addition to disregarding the mandate to work in good faith prior to filing a motion to
compel, Plaintiffs’ overlength brief violates Rule 1:6-5’s clear requirement that briefs submitted
in support of a motion filed in the Civil Part shall not exceed forty (40) pages, absent a request
1
Corbion submits this brief in opposition to Plaintiffs’ motion to compel filed on September 20, 2023 (Trans. ID. No.
LCV20232899998). Individual Defendant Stephanie Wypasek is separately submitting her brief in opposition to
Plaintiffs’ motion to compel filed on September 6, 2023 (Trans. ID. No. LCV20232539107). While the issues in both
motions are largely duplicative, there are some issues addressed in herein that are not applicable to Ms. Wypasek’s
opposition brief (and vice versa).
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being granted prior to submission. Plaintiffs sought no such permission, and instead disregarded
the Rule’s plain requirement and filed a fifty-three (53) page brief.2 Plaintiffs’ continued disregard
of applicable Court Rules, coupled with other tactics3 thus far undertaken in discovery, have not
only harassed Corbion (and Ms. Wypasek), but have also unnecessarily burdened Defendants and
judicial resources. By way of example only, the fact that Plaintiffs directed essentially identical
discovery requests to both Corbion and Ms. Wypasek and then filed separate largely duplicative
motions to compel against each defendant appears to be only a tactic to unduly burden Defendants
and drive up litigation costs and fees.
Moreover, the specific discovery requests at issue in Plaintiffs’ motion to compel make it
clear (again) that Plaintiffs believe they are entitled to the requested documents and information
simply because they filed claims of discrimination (and retaliation) under the New Jersey Law
Against Discrimination, N.J.S.A. § 10:5-1, et seq. (“LAD”) and simply because they asked for it.
Such position is contrary to the discovery rules and corresponding case law.
Indeed, Plaintiffs’ contention that they are seeking comparator discovery is completely
undermined not only by statements made in their briefing but through the requests themselves.
Plaintiffs were terminated from their employment due to their multitude of violations of company
policy. In connection with their purported search for comparator data, however, Plaintiffs do not
seek discovery of other employees who similarly committed a multitude of violations of Corbion
policies, but instead seek disciplinary records (among other things) related to discrete policy
violations. In fact, Plaintiffs’ claim that “each of [their policy violations] individually would not
2
Plaintiffs’ brief in support of their motion to compel discovery directed at Ms. Wypasek was also inappropriately
over the forty (40) page limit.
3
Corbion notes that Defendants were forced to file a Motion in Aid of Litigant’s Rights (also returnable on October
6, 2023) related to Plaintiffs’ inappropriate production of documents that Corbion produced in a prior litigation, and
which were marked “confidential” pursuant to a Stipulation of Confidentiality and by Order of the Court entered in
that case.
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have resulted in termination” is a blatant acknowledgment that seeking broad-based discovery
related to any and all employee discipline for individual policy violations when Plaintiffs were
terminated for their multitude of violations is not in pursuit of comparator data.
Plaintiffs’ other requests are similarly overly broad and/or unduly burdensome (among
other things) and seek information and documentation that is far from being tailored to the issues
in this case. For example: overly broad requests for any text messages sent between any Corbion
employee and anyone during the entirety of each Plaintiff’s employment and relating vaguely to
each Plaintiff’s “discipline” throughout their employment. Plaintiffs’ discovery requests are
clearly nothing more than attempt to engage in an impermissible fishing expedition in the name of
discovery.
In addition, Plaintiffs’ demand that Corbion produce all documents relating to the litigation
entitled Kawal Nandkumar v. Caravan Ingredients, Inc., et al., Docket No.: HUD-L-3345-19,
should be denied because the mere fact that documents were produced by Corbion in an unrelated
litigation does not necessarily render such documents relevant and discoverable in this matter.
Plaintiffs’ demand further highlights just how inappropriate Plaintiffs’ counsel’s conduct was that
is the subject of the pending Motion in Aid of Litigant’s Rights. By propounding such discovery
request, Plaintiffs (and their counsel) essentially concede that the appropriate process for discovery
of any documents, including those relating to the Nandkumar litigation, would be to send a written
discovery demand to Corbion and enable it to provide a response and any appropriate objections.
The Court would have then reviewed any issue and entered an appropriate Order. By unilaterally
deciding to produce the Nandkumar documents in this matter (and many of which were marked
“Confidential” pursuant to a Stipulation of Confidentiality and Court Order), however, Plaintiffs
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circumvented the appropriate process and bypassed the Court. Plaintiffs’ tactics should not be
countenanced.
For these reasons, and as set forth more fully herein, Plaintiffs’ motion to compel discovery
directed to Corbion should be denied in its entirety.
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RELEVANT FACTS AND PROCEDURAL HISTORY
Plaintiffs Martin Marcelo, Oliver Marcelo, and Lenin Rodriguez all worked at Corbion’s
facility located in Totowa, New Jersey. (See Certification of David B. Lichtenberg (“Lichtenberg
Cert.”), at Exhibit A, M. Marcelo Complaint, at ¶ 13; Exhibit B, O. Marcelo Complaint, at ¶ 14;
Exhibit C, Rodriguez Complaint, at ¶ 14). On October 1, 2021, Corbion terminated each Plaintiff’s
employment for their multiple violations of company policies, among other things. (Lichtenberg
Cert., at Exhibit E, M. Marcelo Disciplinary Action Notice; Exhibit F, O. Marcelo Disciplinary
Action Notice; and Exhibit G, Rodriguez Disciplinary Action Notice).
Specifically, Martin Marcelo was terminated for violating “the Last and Final Written
warning by not following Corbion Work and Conduct Rules and not being a role model for others
as he took extended breaks, etc., as detailed [in the disciplinary action]” and violating “work
conduct rules includ[ing] wasting company time and abus[ing] [] break periods” and “us[ing]
unprofessional language or insulting language toward another employee.” (Exhibit E; see also
Exhibit H, Corbion Work and Conduct Rules included in Corbion’s Employee Handbook). Oliver
Marcelo was terminated for his “[m]ultiple violations against the Company’s Policies and
Behaviors as declared in the Employee Handbook (Pages 24-26) and Code of Conduct Policy,”
including “[a]ttempting to retaliate against/intimidate other employees,” his “use of
unprofessional/insulting language to other employees,” his “failure to work efficiently,” “wasting
company time, abuse of break periods,” “manipulating work load,” and his “failure to align with
Corbion’s core behavior—team work.” (Exhibit F and H). Lenin Rodriguez was terminated for
his “[m]ultiple violations against Company Policies and Behavior. Employee Handbook Work
Conduct Rules (page 24-25),” including his “use of unprofessional/insulting language to other
employees,” “wasting company time, abuse of break periods,” “refusing to follow instructions
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issued by management pertaining to [his] work,” “manipulating work load,” his “failure to report
injury,” as well as observations made during Corbion’s investigation regarding Rodriguez’s
observed intimidation. (Exhibit G and H).
Each Plaintiff thereafter filed a separate Complaint in the New Jersey Superior Court,
Passaic County, alleging that he was wrongfully terminated from his employment on the basis of
his race and/or ethnicity (and with regard to Martin Marcelo, he also included a claim of retaliatory
termination). (Lichtenberg Cert., Exhibits A, B, and C). The three matters were consolidated
under docket number PAS-L-000455-22 by Order dated July 8, 2022. (Lichtenberg Cert., Exhibit
D, Order of Consolidation). Defendants thereafter timely filed their Answer and Defenses to each
Plaintiff’s Complaint. (Lichtenberg Cert., ¶ 7).
On January 26, 2023, Plaintiffs served Corbion with their First Request for Production of
Documents consisting of 225 requests for production, and on February 24, 2023, Plaintiffs served
Corbion with their First Set of Interrogatories consisting of 258 separate interrogatories. On June
30, 2023, following discussion and communication between counsel, Corbion produced its written
responses. (Lichtenberg Cert., Exhibit I, Corbion’s Responses to Plaintiffs’ Interrogatories and
Document Requests). Following the Parties’ entry into a Stipulation of Confidentiality, Corbion
thereafter served its 2,964-page document production on July 14, 2023. (Lichtenberg Cert.,
Exhibit J, Defs.’ Counsel’s Email Serving Document Production).
Approximately two and a half months after Corbion produced its written responses to
Plaintiffs’ discovery requests, Plaintiffs served Corbion with a sixty-four (64) page deficiency
letter on September 12, 2023. (Lichtenberg Cert., Exhibit K, Pls.’ Sept. 12, 2023 Deficiency
Letter). Plaintiffs unreasonably demanded a response within seven (7) days. (Id.). On September
20, 2023, prior to Plaintiffs’ filing this motion, Defendants’ counsel advised Plaintiffs’ counsel
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that Corbion was in the process a responding and would do so by September 29, 2023 (within two
and a half weeks from when Corbion received Plaintiffs’ letter). (Lichtenberg Cert., Exhibit L,
Defs.’ Counsel’s Email Regarding Deficiency Letter Response).
Plaintiffs ignored Defendants’ communicated response, however, and filed this motion to
compel.
LEGAL ARGUMENT
I. Standard of Review
Rule 4:10-2(a) of the New Jersey Rules of Court sets forth the standard for the scope of
discovery permitted in matters pending in the Superior Court. Succinctly stated, parties may obtain
discovery “regarding any matter, not privileged, which is relevant to the subject matter involved
in the pending action, whether it relates to the claim or defense of the party seeking discovery or
to the claim or defense of any other party[.]” R. 4:10-2(a); Korostynski v. State of N.J., Div. of
Gaming Enforcement, 266 N.J. Super. 549, 553 (App. Div. 1993) (holding that while the discovery
rules envision a broad discovery process, “the express terms of [R. 4:10-2], and the cases which
have interpreted it, still require that the material sought to be discovered must be relevant”)
(citation omitted). A matter is relevant if it has a “tendency in reason to prove or disprove any fact
of consequence to the determination of the action.” Payton v. N.J. Turnpike Auth., 148 N.J. 534,
535 (1997) (quoting N.J.R.E. 401)). A material fact is one that has some bearing on the claims
being advanced. Korostynski, 266 N.J. Super. at 555; see also State v. Hutchins, 241 N.J. Super.
353, 359 (App. Div. 1990) (“A material fact is one which is really in issue in the case.”).
In employment cases, “discovery should be tailored to the issues involved in the particular
case.” Kresefky v. Panasonic Commc’ns & Sys. Co., 169 F.R.D. 54, 64 (D.N.J. 1996).
Accordingly, courts regularly limit discovery in cases like the present one to information
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reasonably related to the circumstances involved in the alleged unlawful action and similarly
situated comparators. See, e.g., Robbins v. Camden City Bd. of Educ., 105 F.R.D. 49, 56 (D.N.J.
1985).
As such, the fact that a lawsuit is brought asserting alleged employment discrimination or
retaliation does not justify abandonment of the typical limits on discovery. Kresefsky, 169 F.R.D.
at 64-65 (“[A] vague possibility that loose and sweeping discovery might turn up something
suggesting that [an employment decision] was discriminatorily motivated does not show
particularized need and likely relevance that would require moving discovery beyond the natural
focus of the inquiry.”) (citation omitted) (quotation marks omitted). As noted in Robbins:
Despite the generally held view that liberal discovery should be
permitted in actions alleging unlawful discrimination, the scope of
discovery is not without limits. The responses sought must comport
with the traditional notices of relevancy and must not impose an
undue burden on the responding party.
105 F.R.D. at 55.
As set forth herein, Plaintiffs’ discovery requests at issue here fail to comport with these
guidelines, and their motion to compel should be denied, in its entirety.
II. Plaintiffs Have Failed to Provide Any Legal Basis to Grant Their Motion to Compel
Discovery
A. Plaintiffs are Not Entitled to Sweeping Confidential Personnel Information
and Related Documents Concerning Complaints, Investigations, and
Discipline of Other Current and Former Employees of Corbion
Similar to their requests directed to Ms. Wypasek, which are addressed separately in her
opposition to Plaintiffs’ motion to compel filed on September 6, 2023, Plaintiffs propounded
voluminous and exceedingly broad discovery requests to Corbion, seeking confidential personnel
information and documentation pertaining to disciplinary actions issued to other current and
former employees of Corbion over the course of more than ten (10) years, as well as to confidential
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complaints and related investigations. While Plaintiffs have “limited” their requests seeking the
disciplinary action information and documentation to a nearly six (6) year period (January 1, 2018
to present), their requests remain overly broad, among other issues, and seek information that is
not relevant to the subject matter of this litigation nor is reasonably calculated to lead to the
discovery of admissible evidence.
Indeed, Plaintiffs’ broad-based discovery has no justifiable basis and is contrary to the
discovery rules and corresponding case law. Contrary to Plaintiffs’ unsupported assertions, filing
discrimination and retaliation claims does not provide them with carte blanche to access
confidential personnel records and human resources investigations. As the New Jersey Supreme
Court stated: “[A] plaintiff claiming discriminatory treatment ought not to be entitled to a general
inquisition into the [defendant’s] files merely on the strength of having filed a complaint.” Dixon
v. Rutgers, 110 N.J. 432, 454 (1988). Thus, the discovery of personnel records is permissible only
for parties or similarly situated employees and only upon demonstrating that the request is
narrowly tailored to the relevant issues in the case. Id. at 435-37; see also Miles v. Boeing Co.,
154 F.R.D. 112, 115 (E.D. Pa. 1994) (“[P]ersonnel files are confidential and discovery should be
limited.”).
In other words, Plaintiffs are not entitled to unbridled access to information and documents
in the hope that they may find something to support their claims by conducting:
[A] fishing expedition into private papers on the possibility that they
may disclose evidence . . . . It is contrary to the first principles of
justice to allow a search through all of the respondents’ records,
relevant or irrelevant, in the hope that something will turn up.
Berrie v. Berrie, 188 N.J. Super. 274, 286 (Law Div. 1983) (quoting F.T.C. v. American Tobacco
Co., 264 U.S. 298, 306 (1924)); see also Camden Cnty. Energy Recovery Assocs., L.P. v. New
Jersey Dept. of Envtl. Prot., 320 N.J. Super. 59, 64 (App. Div. 1999) (“Discovery is intended to
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lead to facts supporting or opposing an asserted legal theory; it is not designed to lead to a
formulation of a legal theory.”).
As detailed below, each of the specific discovery requests seeking various categories of
personnel documents and information related to other employees is improper, and Plaintiffs’
motion to compel discovery should be denied.
1. Plaintiffs are Not Entitled to Confidential Personnel Records Relating
to Discipline of Current and Former Employees Spanning a Period of
Nearly Six (6) Years (Interrogatory Nos. 46, 89-92, 95-104, 110-162;
Request for Production Nos. 72, 74, 75, 97-98, 101-118)
Corbion acknowledges that comparator data may be appropriately relevant and
discoverable in a discrimination case where the comparators are similarly situated to the
plaintiff(s). However, Plaintiffs’ requests go far beyond seeking comparator data and essentially
seek wholesale access to Corbion’s disciplinary records irrespective of whether individuals
actually engaged in comparable conduct for which each Plaintiff was ultimately terminated.
As set forth in the disciplinary actions issued in connection with each Plaintiff’s
termination, Martin Marcelo, Oliver Marcelo, and Lenin Rodriguez were each terminated for his
respective multiple violations of company policies, among other things as outlined in their
respective disciplinary action notices, as follows:
Martin Marcelo was terminated for violating “the Last and Final Written
warning by not following Corbion Work and Conduct Rules and not being a
role model for others as he took extended breaks, etc., as detailed [in the
disciplinary action]” and violating “work conduct rules includ[ing] wasting
company time and abus[ing] [] break periods” and “us[ing] unprofessional
language or insulting language toward another employee.” (Exhibit E; see also
Exhibit H, Corbion Work and Conduct Rules included in Corbion’s Employee
Handbook).
Oliver Marcelo was terminated for his “[m]ultiple violations against the
Company’s Policies and Behaviors as declared in the Employee Handbook
(Pages 24-26) and Code of Conduct Policy,” including “[a]ttempting to retaliate
against/intimidate other employees,” his “use of unprofessional/insulting
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language to other employees,” his “failure to work efficiently,” “wasting
company time, abuse of break periods,” “manipulating work load,” and his
“failure to align with Corbion’s core behavior—team work.” (Exhibit F and
H).
Lenin Rodriguez was terminated for his “[m]ultiple violations against Company
Policies and Behavior. Employee Handbook Work Conduct Rules (page 24-
25),” including his “use of unprofessional/insulting language to other
employees,” “wasting company time, abuse of break periods,” “refusing to
follow instructions issued by management pertaining to [his] work,”
“manipulating work load,” his “failure to report injury,” as well as observations
made during Corbion’s investigation regarding Rodriguez’s intimidation
observed. (Exhibit G and H).
Contrary to their assertions, Plaintiffs’ requests do not seek information and documentation
regarding comparable misconduct (i.e., other employees who committed these types of violations
of company policy), but instead demand that Corbion identify and produce all related documents
regarding any and all current and former employees employed at any Corbion location in the
United States over a nearly six (6) year period who had been:
Disciplined by Ms. Wypasek (in any manner) or otherwise terminated from
employment for any reason (Lichtenberg Cert., Exhibit I, Corbion’s Responses
to Plaintiffs’ Interrogatories, at No. 89; Request for Production, at No. 72); or
Disciplined or spoken to, whether by Ms. Wypasek or by anyone, for any
violation of any workplace policy, including, but not limited to, the Corbion
Work and Conduct Rules (Interrogatory Nos. 46, 90-92; Request for Production
Nos. 74-75); or
Spoken to; or issued a coaching notice; or issued a verbal warning; or issued a
written warning; or suspended; or re-assigned; or re-trained; and/or was
terminated for:
o “Making/using offensive language at work” (Interrogatory Nos. 97 and
104; Request for Production No. 97); or
o “Relat[ing] to lateness” (Interrogatory Nos. 110-115; Request for
Production No. 95); or
o “Making/using insulting language at work” (Interrogatory Nos. 117-
121); or
o “Taking excessive breaks” or “wasting company’s time” or “abusing
break periods” (Interrogatory Nos. 122-126, 128-131, 135; Request for
Production Nos. 101, 103, 105); or
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o “Talking/using cell phone at work” (Interrogatory Nos. 137-141;
Request for Production No. 107); or
o “Making threats, or threatening another employee” or being “accused of
intimidation” or being “accused of coercing another employee”
(Interrogatory Nos.143-147, 149-153, 155-159; Request for Production
Nos. 111, 113, 115); or
o “Failure to work efficiently” (Request for Production No. 109); or
Issued a Final Warning for any reason or Last and Final Warning for any reason
(Interrogatory Nos. 117-118; Request for Production 161-162).
Plaintiffs also demanded that Corbion somehow identify any employee about whom “any
person in the position of supervisor, manager (including, but not limited to Human Resource
Managers) director, vice president or any other individual with disciplinary responsibilities
become aware” had purportedly engaged in specified conduct but “was not spoken to or disciplined
in any way,” including for:
o Having “made, used, spoke or wrote any offensive language at work”
(Interrogatory No. 104); or
o “Starting work late”4 (Interrogatory No. 116); or
o “Taking excessive breaks at work” or “abusing break periods at work”
(Interrogatory Nos. 127 and 126); or
o “Talking/using cell phone at work” (Interrogatory No. 142); or
o “Making threats, or threatening another employee” or being
“intimidating another employee” or being “coercing another employee”
(Interrogatory Nos. 148, 154, 160).
In addition, Plaintiffs vaguely (and confusingly) demanded that Corbion produce “[a]ll
documents and electronic data, personnel files, disciplinary records of every employee who were
[sic] not disciplined (as defined [in Plaintiffs’ Request for Production]) relating to allegations of”:
o “Lateness” (Request for Production No. 96); or
o “Making/using offensive language at work” (Request for Production
No. 98); or
o “Wasting company’s time” (Request for Production No. 102); or
4
This request included no time limit.
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o “Taking extensive breaks” (Request for Production No. 104); or
o “Abusing break periods” (Request for Production No. 106); or
o “Failure to work efficiently” (Request for Production No. 110); or
o “Making threats, or threatening another employee” (Request for
Production No. 112); or
o “Intimidation of another employee” (Request for Production No. 114);
or
o “Coercing another employee” (Request for Production No. 116); or
o “Taking/using cell phone at work” (Request for Production No. 108).
Plaintiffs have failed to explain how any of these employees are similarly situated to any
of the Plaintiffs, nor can they. As an initial matter, Plaintiffs’ request for information and
documentation relating to every employee employed by Corbion throughout the United States who
was disciplined in any manner or otherwise terminated for any reason, or who was disciplined in
any manner or otherwise terminated for any violation of company policy, or who was issued a
Final Warning or a Last and Final Warning regardless of the reason for same, is in no way
connected to the basis for Plaintiffs’ termination as outlined in their termination forms. (See
Exhibits E, F, and G). Plaintiffs’ requests amount to nothing more than a thinly veiled attempt to
rummage through confidential personnel-related information and files having no connection to the
issues in this litigation or the worksite where they were employed.
Similarly, Plaintiffs’ request for discovery relating to various categories of discipline
issued to other employees over a nearly six (6) year period is far from being tailored to seeking
discovery of similarly situated individuals. Plaintiffs are not seeking to discover discipline of
individuals for comparable multi-faceted violations, but instead are attempting to break down the
issues that collectively led to each’s termination. However, an employee being disciplined for
having engaged in just one of the numerous infractions listed (e.g., an employee being spoken to
about being late to work) in no way supports Plaintiffs’ claimed intention to develop comparator
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discovery. Plaintiffs were not terminated for only one of the listed infractions, but for a multitude
of misconduct in which they engaged.
Moreover, the cases on which Plaintiffs rely do not aid their argument; rather, they show
that comparator discovery is permitted where individuals are similarly situated. As they did in
connection with their motion filed against Ms. Wypasek, Plaintiffs essentially misrepresent the
facts of Savoie v. The Lawrenceville Sch., No. A-0288-10T1, 2013 WL 1492859 (App. Div. Apr.
12, 2013).5 (Pls.’ Br. at p. 21-23). That decision was not on a discovery motion and did not
indicate how information was obtained by the plaintiff. In fact, the Court mentioned only that
plaintiff “attempted to discover disciplinary files”; it never says that he did. (Id. at *7).
Nevertheless, the plaintiff apparently learned about other alleged conduct of other employees that
he attempted to argue was similar to the conduct for which he was terminated. Specifically, that
plaintiff had been terminated for “inappropriate conduct that jeopardized the school’s reputation”
in connection with his transmission of sexual images over the internet. (Id. at *4, 12). The
Appellate Division did not issue any decision as to what constituted sufficiently similar misconduct
engaged in by other employees, but instead directed the trial court to determine whether or not
other employees’ conduct, including the failure to end an adulterous affair, or making offensive
comments to a student and hacking into the school’s email system, or having angry outbursts at
students, or a teacher’s acting inappropriate toward a female student, were sufficiently similar to
the plaintiff’s inappropriate conduct that jeopardized the school’s reputation.6 (Id. at *14).
5
A true and correct copy of this decision is attached to the Lichtenberg Cert. as Exhibit N.
6
The Court, however, did note that it could “discern no sufficiently similar criteria between the driving offenses
[driving under the influence] and plaintiff's alleged conduct.” Id. at *14.
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Plaintiffs again try to rely on Salamone v. Carter’s Retail, Inc., No. 09-cv-5856, 2011 WL
310701 (D.N.J. Jan. 28, 2011),7 but such reliance is again misplaced. In Salamone, the employee
was terminated for working off the clock and falsifying time records and the Court determined that
similarly situated employees meant those disciplined or terminated for “working off the clock,
timecard fraud, and/or any other timekeeping infraction.” (Id. at *12) (internal quotation marks
omitted). In other words, the plaintiff was terminated for time issues and similarly situated
employees were those also disciplined or terminated for time issues. In fact, the Court specifically
noted that “‘similarly situated individuals’ in this litigation include[d] Defendant’s employees who
were required to comply, and were disciplined or terminated for failing to do so, with the same
timekeeping policies applied with respect to Plaintiff's termination.” (Id.) (emphasis added).
Not only that, but the requested discovery was much more focused in terms of timing than
Plaintiffs’ requests in the instant case, as in Salamone the plaintiff sought discovery related to
employees who were disciplined one year before and one year after plaintiff’s termination. (Id. at
*2).
Indeed, the discovery sought in this matter is not like the discovery discussed in the cases
relied upon by Plaintiffs. Plaintiffs are not seeking tailored discovery regarding timekeeping
infractions under company policy in a case where plaintiff was terminated for timekeeping
infractions under the same policy, or discovery regarding others’ inappropriate conduct that
jeopardized the employer’s reputation in a case where the plaintiff was terminated for
inappropriate conduct that jeopardized the employer’s reputation. Here, Plaintiffs were terminated
for multiple issues and violations of company policy. Instead of seeking limited and focused
discovery regarding comparable multiple violations, Plaintiffs seek information regarding those
7
A true and correct copy of this decision is attached to the Lichtenberg Cert. as Exhibit O.
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who were disciplined in any way or terminated for any reason, for any policy violation, and for
just one of a number of specific policy violations, regardless of whether they worked at the Totowa
worksite or who issued the discipline.
What is more, Defendants specifically asked Plaintiffs who their purported comparators
were given their vague allegations regarding comparators in each Plaintiff’s Complaint. In their
answers to interrogatories, Plaintiffs collectively identified a total of eight (8) individuals.
(Lichtenberg Cert., Exhibit M, Pls.’ respective Answers to Interrogatory Nos. 32 and 34). For the
same reasons set forth herein, while Corbion does not in any way concede that any of these eight
(8) individuals are similarly situated to Plaintiffs, their identification of only these eight (8)
individuals shows the overbreadth of the discovery requests at issue in this motion and confirms
the instant discovery dispute is a fishing expedition. In other words, by only identifying eight (8)
potential comparators, Plaintiffs impliedly concede the overbreadth of their sweeping demands.
For these reasons, Corbion properly objected to these discovery requests and Plaintiffs’
motion to compel production of these documents and information should be denied.
2. Plaintiffs are Not Entitled to the Requested Information and
Documentation Relating to Matthew McMahon (Interrogatory Nos.
106-109; Request for Production Nos. 85, 88, 89, 90)
Plaintiffs’ discovery requests seeking information and documentation regarding former
Corbion employee Matthew McMahon are objectionable for the same reasons set forth in Ms.
Wypasek’s opposition and as set forth above in connection with Plaintiffs’ requests for broad-
based (non-)comparator discovery.
In the discovery requests relating to Mr. McMahon and directed to Corbion, Plaintiffs seek:
“Any and all complaints of any kind made by any current or former employees
against Mathew McMahon since the inception of his employment with the
defendant to the present.” (Lichtenberg Cert., Exhibit I, Request for Production
No. 85)
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“Disciplinary measures” issued to Mr. McMahon for an isolated incident
involving writing on a bulletin board in Corbion’s cafeteria (Interrogatory No.
106)
All documents relating to any investigation of an isolated incident involving
writing on a bulletin board in Corbion’s cafeteria (Request for Production No.
88)
The reasons for Mr. McMahon’s termination and “[a]ll documents and data in
connection with the termination of [Mr. McMahon].” (Interrogatory No. 107;
Request for Production No. 89)
“All documents and data relating to any investigation in connection with the
termination of [Mr. McMahon].” (Interrogatory No. 108; Request for
Production No. 90)
Identify and describe each and every communication between Ms. Wypasek
and Brian Wyss “relating to any workplace conduct of [Mr. McMahon].”
(Interrogatory No. 109)
In support of their request for broad-based discovery of confidential, personal information
relating to a non-party, Plaintiffs assert that, because a Court Order was entered in a different case
(Nandkumar) involving the termination of a different employee not at issue in this litigation, that
Order must apply here. (Pls.’ Br. at p. 27-28). Plaintiffs are mistaken. See HD Supply Waterworks
Grp., Inc. v. Dir., Div. of Taxation, 29 N.J. Tax 573, 584-85 (Tax 2017) (“[T]he determination of
what requests are relevant, reasonable and likely to lead to the discovery of admissible evidence,
and what demands are annoying, cumulative, oppressive or unduly burdensome, rests with the trial
court and must be cautiously navigated on a case-by-case basis.”) (citing Berrie, 188 N.J. Super.
at 278); Myers v. St. Francis Hosp., 91 N.J. Super. 377, 386 (App. Div. 1966) (“[R]elevance is
basically a case-by-case proposition.”) (citation omitted).
Moreover, Plaintiffs here miss the point that Mr. McMahon could have been a comparator
to plaintiff Nandkumar; hence the Court’s Order in that case. Indeed, plaintiff Nandkumar alleged
that he was engaged in an oral conversation with Mr. McMahon during which they both made
what plaintiff Nandkumar believed to be inappropriate comments and for which he contended they
received differential treatment. That does not make Mr. McMahon a comparator here, however.
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In this case, the relevant starting point is the basis for Plaintiffs’ termination. Not one of
the Plaintiffs was terminated solely for language violations but were terminated for a litany of
violations. Plaintiffs’ attempt to engage in a wholesale fishing expedition into unrelated
disciplinary actions and the basis for the Company’s decision to terminate an employee more than
one (1) year after Plaintiffs’ termination should not be countenanced.8 In fact, Mr. McMahon’s
termination had nothing to do with any of the conduct that Plaintiffs engaged in which led to their
termination. Nor should Plaintiffs’ request for any communications Ms.
Preview
PAS-L-000455-22 09/28/2023 6:22:47 PM Pg 1 of 29 Trans ID: LCV20232973575 MARTIN MARCELLO, : SUPERIOR COURT OF NEW JERSEY : LAW DIVISION Plaintiff, : PASSAIC COUNTY v. : : Docket No. PAS-L-000455-22 CORBION d/b/a Caravan Ingredients, Inc., : STEPHANIE WYPASEK, Individually, and : JOHN and JANE DOES 1-20, Individually, : CIVIL ACTION : Defendants. : OLIVER MARCELLO, : SUPERIOR COURT OF NEW JERSEY : LAW DIVISION Plaintiff, : PASSAIC COUNTY v. : : Docket No. PAS-L-00692-22 CORBION d/b/a Caravan Ingredients, Inc., : STEPHANIE WYPASEK, Individually, and : JOHN and JANE DOES 1-20, Individually, : CIVIL ACTION : Defendants. : LENIN RODREQUEZ, : SUPERIOR COURT OF NEW JERSEY : LAW DIVISION Plaintiff, : PASSAIC COUNTY v. : : Docket No. PAS-L-000707-22 CORBION d/b/a Caravan Ingredients, Inc., : STEPHANIE WYPASEK, Individually, and : JOHN and JANE DOES 1-20, Individually, : CIVIL ACTION : Defendants. : DEFENDANT CORBION’S BRIEF IN OPPOSITION TO PLAINTIFFS’ MOTION TO COMPEL DISCOVERY FISHER & PHILLIPS LLP 430 Mountain Avenue, Suite 303 Murray Hill, NJ 07974 Phone: (908) 516-1050 Fax: (908) 516-1051 Attorneys for Defendants Of Counsel: David B. Lichtenberg, Esq. (Attorney ID No. 040021997 Sarah Wieselthier, Esq. (Attorney ID No. 904102012) On the Brief: Eliza L. Lloyd, Esq. (Attorney ID No. 111352014) FP 48336244.2 PAS-L-000455-22 09/28/2023 6:22:47 PM Pg 2 of 29 Trans ID: LCV20232973575 TABLE OF CONTENTS PRELIMINARY STATEMENT ................................................................................................. 1 RELEVANT FACTS AND PROCEDURAL HISTORY .......................................................... 5 LEGAL ARGUMENT .................................................................................................................. 7 I. Standard of Review .................................................................................................................. 7 II. laintiffs Have Failed to Provide Any Legal Basis to Grant Their Motion to Compel Discovery........................................................................................................................................ 8 A. Plaintiffs are Not Entitled to Sweeping Confidential Personnel Information and Related Documents Concerning Complaints, Investigations, and Discipline of Other Current and Former Employees of Corbion .......................................................................... 8 1. Plaintiffs are Not Entitled to Confidential Personnel Records Relating to Discipline of Current and Former Employees Spanning a Period of Nearly Six (6) Years (Interrogatory Nos. 46, 89-92, 95-104, 110-162; Request for Production Nos. 72, 74, 75, 97-98, 101-118) ..................................................................................................................... 10 2. Plaintiffs are Not Entitled to the Requested Information and Documentation Relating to Matthew McMahon (Interrogatory Nos. 106-109; Request for Production Nos. 85, 88, 89, 90) ............................................................................................................... 16 3. Plaintiffs are Not Entitled to Documents Relating to Investigations into Non-Similar Conduct (Request for Production No. 166) ........................................................................ 18 B. Plaintiffs’ Requests Relating to “Complaints” and other Cases Against Corbion Alleging “Workplace Discrimination” or “Employment Discrimination”—or Simply Relating to Any Employee Termination—and Prior “Accus[ations]” and “Complaints” of “Any Type of Workplace Discrimination” Against Ms. Wypasek are Overly Broad (Among other Things) and Seek Information Not Relevant to the Issues in this Litigation (Interrogatory Nos. 51-53, 244; Request for Production Nos. 203, 205-206)........................ 19 C. Plaintiffs’ Request Relating to the Production of Video Surveillance Belonging to Corbion is Inappropriate (Interrogatory No. 93) .................................................................. 22 D. Plaintiffs’ Broad Request for Text Messages Should be Denied (Request for Production No. 131) ................................................................................................................. 22 E. Plaintiffs’ Broad Request for the Nandkumar Litigation File Should be Denied (Interrogatory No. 238) ............................................................................................................ 23 CONCLUSION ........................................................................................................................... 25 i FP 48336244.2 PAS-L-000455-22 09/28/2023 6:22:47 PM Pg 3 of 29 Trans ID: LCV20232973575 TABLE OF AUTHORITIES Page(s) Cases Berrie v. Berrie, 188 N.J. Super. 274 (Law Div. 1983) ........................................................................................9 Camden Cnty. Energy Recovery Assocs., L.P. v. New Jersey Dept. of Envtl. Prot., 320 N.J. Super. 59 (App. Div. 1999) .........................................................................................9 Dixon v. Rutgers, 110 N.J. 432 (1988) ...................................................................................................................9 HD Supply Waterworks Grp., Inc. v. Dir., Div. of Taxation, 29 N.J. Tax 573 (Tax 2017) ...............................................................................................17, 24 Juster Acquisition Co., LLC. v. N. Hudson Sewerage Auth., No. 12-cv-3427, 2013 WL 541972 (D.N.J. Feb. 11, 2013) .....................................................22 Korostynski v. State of N.J., Div. of Gaming Enforcement, 266 N.J. Super. 549 (App. Div. 1993) .......................................................................................7 Kresefky v. Panasonic Commc’ns & Sys. Co., 169 F.R.D. 54 (D.N.J. 1996) ..................................................................................................7, 8 Miles v. Boeing Co., 154 F.R.D. 112 (E.D. Pa. 1994) .................................................................................................9 Myers v. St. Francis Hosp., 91 N.J. Super. 377 (App. Div. 1966) .................................................................................17, 24 Payton v. N.J. Turnpike Auth., 148 N.J. 534 (1997) ...................................................................................................................7 Robbins v. Camden City Bd. of Educ., 105 F.R.D. 49 (D.N.J. 1985) ......................................................................................................8 Salamone v. Carter’s Retail, Inc., No. 09-cv-5856, 2011 WL 310701 (D.N.J. Jan. 28, 2011) ......................................................15 Savoie v. The Lawrenceville Sch., No. A-0288-10T1, 2013 WL 1492859 (App. Div. Apr. 12, 2013) ..........................................14 State v. Hutchins, 241 N.J. Super. 353 (App. Div. 1990) .......................................................................................7 ii FP 48336244.2 PAS-L-000455-22 09/28/2023 6:22:47 PM Pg 4 of 29 Trans ID: LCV20232973575 State Statutes N.J.S.A. § 10:5-1, et seq. .................................................................................................................2 Rules Rule 4:10-2(a) ..................................................................................................................................7 Rule 1:6-2(c) ....................................................................................................................................1 Rule 1:6-5.........................................................................................................................................1 iii FP 48336244.2 PAS-L-000455-22 09/28/2023 6:22:47 PM Pg 5 of 29 Trans ID: LCV20232973575 PRELIMINARY STATEMENT Defendant Corbion d/b/a Caravan Ingredients, Inc. (“Corbion” or “Defendant”) submits this brief in opposition to the September 20, 2023 Motion to Compel Discovery filed on behalf of Plaintiffs Martin Marcelo, Oliver Marcelo, and Lenin Rodriguez (collectively, “Plaintiffs”).1 For the reasons set forth herein, Plaintiffs’ motion should be denied in its entirety. As an initial matter, Plaintiffs’ motion to compel should be denied because Plaintiffs did not comply with the good faith requirements of Rule 1:6-2(c). Indeed, on June 30, 2023, Corbion served its written responses to Plaintiffs’ 258 separate interrogatory requests and 225 separate requests for production of documents, and following the Parties’ entry into a Stipulation of Confidentiality, produced nearly 3,000 pages of documents (including e-discovery documents). Plaintiffs made no contentions regarding the purported insufficiency of Corbion’s responses until almost two and a half months later, when Plaintiffs served Corbion with a sixty-four (64) page deficiency letter on September 12, 2023. Plaintiffs unreasonably demanded a response within seven (7) days. Notwithstanding, prior to Plaintiffs’ filing this motion, Defendants’ counsel advised Plaintiffs’ counsel that Corbion was in the process of responding and would do so by September 29, 2023 (within two and a half weeks from when Corbion received Plaintiffs’ letter). Plaintiffs ignored Defendants’ communicated response and filed this motion to compel. In addition to disregarding the mandate to work in good faith prior to filing a motion to compel, Plaintiffs’ overlength brief violates Rule 1:6-5’s clear requirement that briefs submitted in support of a motion filed in the Civil Part shall not exceed forty (40) pages, absent a request 1 Corbion submits this brief in opposition to Plaintiffs’ motion to compel filed on September 20, 2023 (Trans. ID. No. LCV20232899998). Individual Defendant Stephanie Wypasek is separately submitting her brief in opposition to Plaintiffs’ motion to compel filed on September 6, 2023 (Trans. ID. No. LCV20232539107). While the issues in both motions are largely duplicative, there are some issues addressed in herein that are not applicable to Ms. Wypasek’s opposition brief (and vice versa). 1 PAS-L-000455-22 09/28/2023 6:22:47 PM Pg 6 of 29 Trans ID: LCV20232973575 being granted prior to submission. Plaintiffs sought no such permission, and instead disregarded the Rule’s plain requirement and filed a fifty-three (53) page brief.2 Plaintiffs’ continued disregard of applicable Court Rules, coupled with other tactics3 thus far undertaken in discovery, have not only harassed Corbion (and Ms. Wypasek), but have also unnecessarily burdened Defendants and judicial resources. By way of example only, the fact that Plaintiffs directed essentially identical discovery requests to both Corbion and Ms. Wypasek and then filed separate largely duplicative motions to compel against each defendant appears to be only a tactic to unduly burden Defendants and drive up litigation costs and fees. Moreover, the specific discovery requests at issue in Plaintiffs’ motion to compel make it clear (again) that Plaintiffs believe they are entitled to the requested documents and information simply because they filed claims of discrimination (and retaliation) under the New Jersey Law Against Discrimination, N.J.S.A. § 10:5-1, et seq. (“LAD”) and simply because they asked for it. Such position is contrary to the discovery rules and corresponding case law. Indeed, Plaintiffs’ contention that they are seeking comparator discovery is completely undermined not only by statements made in their briefing but through the requests themselves. Plaintiffs were terminated from their employment due to their multitude of violations of company policy. In connection with their purported search for comparator data, however, Plaintiffs do not seek discovery of other employees who similarly committed a multitude of violations of Corbion policies, but instead seek disciplinary records (among other things) related to discrete policy violations. In fact, Plaintiffs’ claim that “each of [their policy violations] individually would not 2 Plaintiffs’ brief in support of their motion to compel discovery directed at Ms. Wypasek was also inappropriately over the forty (40) page limit. 3 Corbion notes that Defendants were forced to file a Motion in Aid of Litigant’s Rights (also returnable on October 6, 2023) related to Plaintiffs’ inappropriate production of documents that Corbion produced in a prior litigation, and which were marked “confidential” pursuant to a Stipulation of Confidentiality and by Order of the Court entered in that case. 2 PAS-L-000455-22 09/28/2023 6:22:47 PM Pg 7 of 29 Trans ID: LCV20232973575 have resulted in termination” is a blatant acknowledgment that seeking broad-based discovery related to any and all employee discipline for individual policy violations when Plaintiffs were terminated for their multitude of violations is not in pursuit of comparator data. Plaintiffs’ other requests are similarly overly broad and/or unduly burdensome (among other things) and seek information and documentation that is far from being tailored to the issues in this case. For example: overly broad requests for any text messages sent between any Corbion employee and anyone during the entirety of each Plaintiff’s employment and relating vaguely to each Plaintiff’s “discipline” throughout their employment. Plaintiffs’ discovery requests are clearly nothing more than attempt to engage in an impermissible fishing expedition in the name of discovery. In addition, Plaintiffs’ demand that Corbion produce all documents relating to the litigation entitled Kawal Nandkumar v. Caravan Ingredients, Inc., et al., Docket No.: HUD-L-3345-19, should be denied because the mere fact that documents were produced by Corbion in an unrelated litigation does not necessarily render such documents relevant and discoverable in this matter. Plaintiffs’ demand further highlights just how inappropriate Plaintiffs’ counsel’s conduct was that is the subject of the pending Motion in Aid of Litigant’s Rights. By propounding such discovery request, Plaintiffs (and their counsel) essentially concede that the appropriate process for discovery of any documents, including those relating to the Nandkumar litigation, would be to send a written discovery demand to Corbion and enable it to provide a response and any appropriate objections. The Court would have then reviewed any issue and entered an appropriate Order. By unilaterally deciding to produce the Nandkumar documents in this matter (and many of which were marked “Confidential” pursuant to a Stipulation of Confidentiality and Court Order), however, Plaintiffs 3 PAS-L-000455-22 09/28/2023 6:22:47 PM Pg 8 of 29 Trans ID: LCV20232973575 circumvented the appropriate process and bypassed the Court. Plaintiffs’ tactics should not be countenanced. For these reasons, and as set forth more fully herein, Plaintiffs’ motion to compel discovery directed to Corbion should be denied in its entirety. 4 PAS-L-000455-22 09/28/2023 6:22:47 PM Pg 9 of 29 Trans ID: LCV20232973575 RELEVANT FACTS AND PROCEDURAL HISTORY Plaintiffs Martin Marcelo, Oliver Marcelo, and Lenin Rodriguez all worked at Corbion’s facility located in Totowa, New Jersey. (See Certification of David B. Lichtenberg (“Lichtenberg Cert.”), at Exhibit A, M. Marcelo Complaint, at ¶ 13; Exhibit B, O. Marcelo Complaint, at ¶ 14; Exhibit C, Rodriguez Complaint, at ¶ 14). On October 1, 2021, Corbion terminated each Plaintiff’s employment for their multiple violations of company policies, among other things. (Lichtenberg Cert., at Exhibit E, M. Marcelo Disciplinary Action Notice; Exhibit F, O. Marcelo Disciplinary Action Notice; and Exhibit G, Rodriguez Disciplinary Action Notice). Specifically, Martin Marcelo was terminated for violating “the Last and Final Written warning by not following Corbion Work and Conduct Rules and not being a role model for others as he took extended breaks, etc., as detailed [in the disciplinary action]” and violating “work conduct rules includ[ing] wasting company time and abus[ing] [] break periods” and “us[ing] unprofessional language or insulting language toward another employee.” (Exhibit E; see also Exhibit H, Corbion Work and Conduct Rules included in Corbion’s Employee Handbook). Oliver Marcelo was terminated for his “[m]ultiple violations against the Company’s Policies and Behaviors as declared in the Employee Handbook (Pages 24-26) and Code of Conduct Policy,” including “[a]ttempting to retaliate against/intimidate other employees,” his “use of unprofessional/insulting language to other employees,” his “failure to work efficiently,” “wasting company time, abuse of break periods,” “manipulating work load,” and his “failure to align with Corbion’s core behavior—team work.” (Exhibit F and H). Lenin Rodriguez was terminated for his “[m]ultiple violations against Company Policies and Behavior. Employee Handbook Work Conduct Rules (page 24-25),” including his “use of unprofessional/insulting language to other employees,” “wasting company time, abuse of break periods,” “refusing to follow instructions 5 PAS-L-000455-22 09/28/2023 6:22:47 PM Pg 10 of 29 Trans ID: LCV20232973575 issued by management pertaining to [his] work,” “manipulating work load,” his “failure to report injury,” as well as observations made during Corbion’s investigation regarding Rodriguez’s observed intimidation. (Exhibit G and H). Each Plaintiff thereafter filed a separate Complaint in the New Jersey Superior Court, Passaic County, alleging that he was wrongfully terminated from his employment on the basis of his race and/or ethnicity (and with regard to Martin Marcelo, he also included a claim of retaliatory termination). (Lichtenberg Cert., Exhibits A, B, and C). The three matters were consolidated under docket number PAS-L-000455-22 by Order dated July 8, 2022. (Lichtenberg Cert., Exhibit D, Order of Consolidation). Defendants thereafter timely filed their Answer and Defenses to each Plaintiff’s Complaint. (Lichtenberg Cert., ¶ 7). On January 26, 2023, Plaintiffs served Corbion with their First Request for Production of Documents consisting of 225 requests for production, and on February 24, 2023, Plaintiffs served Corbion with their First Set of Interrogatories consisting of 258 separate interrogatories. On June 30, 2023, following discussion and communication between counsel, Corbion produced its written responses. (Lichtenberg Cert., Exhibit I, Corbion’s Responses to Plaintiffs’ Interrogatories and Document Requests). Following the Parties’ entry into a Stipulation of Confidentiality, Corbion thereafter served its 2,964-page document production on July 14, 2023. (Lichtenberg Cert., Exhibit J, Defs.’ Counsel’s Email Serving Document Production). Approximately two and a half months after Corbion produced its written responses to Plaintiffs’ discovery requests, Plaintiffs served Corbion with a sixty-four (64) page deficiency letter on September 12, 2023. (Lichtenberg Cert., Exhibit K, Pls.’ Sept. 12, 2023 Deficiency Letter). Plaintiffs unreasonably demanded a response within seven (7) days. (Id.). On September 20, 2023, prior to Plaintiffs’ filing this motion, Defendants’ counsel advised Plaintiffs’ counsel 6 PAS-L-000455-22 09/28/2023 6:22:47 PM Pg 11 of 29 Trans ID: LCV20232973575 that Corbion was in the process a responding and would do so by September 29, 2023 (within two and a half weeks from when Corbion received Plaintiffs’ letter). (Lichtenberg Cert., Exhibit L, Defs.’ Counsel’s Email Regarding Deficiency Letter Response). Plaintiffs ignored Defendants’ communicated response, however, and filed this motion to compel. LEGAL ARGUMENT I. Standard of Review Rule 4:10-2(a) of the New Jersey Rules of Court sets forth the standard for the scope of discovery permitted in matters pending in the Superior Court. Succinctly stated, parties may obtain discovery “regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action, whether it relates to the claim or defense of the party seeking discovery or to the claim or defense of any other party[.]” R. 4:10-2(a); Korostynski v. State of N.J., Div. of Gaming Enforcement, 266 N.J. Super. 549, 553 (App. Div. 1993) (holding that while the discovery rules envision a broad discovery process, “the express terms of [R. 4:10-2], and the cases which have interpreted it, still require that the material sought to be discovered must be relevant”) (citation omitted). A matter is relevant if it has a “tendency in reason to prove or disprove any fact of consequence to the determination of the action.” Payton v. N.J. Turnpike Auth., 148 N.J. 534, 535 (1997) (quoting N.J.R.E. 401)). A material fact is one that has some bearing on the claims being advanced. Korostynski, 266 N.J. Super. at 555; see also State v. Hutchins, 241 N.J. Super. 353, 359 (App. Div. 1990) (“A material fact is one which is really in issue in the case.”). In employment cases, “discovery should be tailored to the issues involved in the particular case.” Kresefky v. Panasonic Commc’ns & Sys. Co., 169 F.R.D. 54, 64 (D.N.J. 1996). Accordingly, courts regularly limit discovery in cases like the present one to information 7 PAS-L-000455-22 09/28/2023 6:22:47 PM Pg 12 of 29 Trans ID: LCV20232973575 reasonably related to the circumstances involved in the alleged unlawful action and similarly situated comparators. See, e.g., Robbins v. Camden City Bd. of Educ., 105 F.R.D. 49, 56 (D.N.J. 1985). As such, the fact that a lawsuit is brought asserting alleged employment discrimination or retaliation does not justify abandonment of the typical limits on discovery. Kresefsky, 169 F.R.D. at 64-65 (“[A] vague possibility that loose and sweeping discovery might turn up something suggesting that [an employment decision] was discriminatorily motivated does not show particularized need and likely relevance that would require moving discovery beyond the natural focus of the inquiry.”) (citation omitted) (quotation marks omitted). As noted in Robbins: Despite the generally held view that liberal discovery should be permitted in actions alleging unlawful discrimination, the scope of discovery is not without limits. The responses sought must comport with the traditional notices of relevancy and must not impose an undue burden on the responding party. 105 F.R.D. at 55. As set forth herein, Plaintiffs’ discovery requests at issue here fail to comport with these guidelines, and their motion to compel should be denied, in its entirety. II. Plaintiffs Have Failed to Provide Any Legal Basis to Grant Their Motion to Compel Discovery A. Plaintiffs are Not Entitled to Sweeping Confidential Personnel Information and Related Documents Concerning Complaints, Investigations, and Discipline of Other Current and Former Employees of Corbion Similar to their requests directed to Ms. Wypasek, which are addressed separately in her opposition to Plaintiffs’ motion to compel filed on September 6, 2023, Plaintiffs propounded voluminous and exceedingly broad discovery requests to Corbion, seeking confidential personnel information and documentation pertaining to disciplinary actions issued to other current and former employees of Corbion over the course of more than ten (10) years, as well as to confidential 8 PAS-L-000455-22 09/28/2023 6:22:47 PM Pg 13 of 29 Trans ID: LCV20232973575 complaints and related investigations. While Plaintiffs have “limited” their requests seeking the disciplinary action information and documentation to a nearly six (6) year period (January 1, 2018 to present), their requests remain overly broad, among other issues, and seek information that is not relevant to the subject matter of this litigation nor is reasonably calculated to lead to the discovery of admissible evidence. Indeed, Plaintiffs’ broad-based discovery has no justifiable basis and is contrary to the discovery rules and corresponding case law. Contrary to Plaintiffs’ unsupported assertions, filing discrimination and retaliation claims does not provide them with carte blanche to access confidential personnel records and human resources investigations. As the New Jersey Supreme Court stated: “[A] plaintiff claiming discriminatory treatment ought not to be entitled to a general inquisition into the [defendant’s] files merely on the strength of having filed a complaint.” Dixon v. Rutgers, 110 N.J. 432, 454 (1988). Thus, the discovery of personnel records is permissible only for parties or similarly situated employees and only upon demonstrating that the request is narrowly tailored to the relevant issues in the case. Id. at 435-37; see also Miles v. Boeing Co., 154 F.R.D. 112, 115 (E.D. Pa. 1994) (“[P]ersonnel files are confidential and discovery should be limited.”). In other words, Plaintiffs are not entitled to unbridled access to information and documents in the hope that they may find something to support their claims by conducting: [A] fishing expedition into private papers on the possibility that they may disclose evidence . . . . It is contrary to the first principles of justice to allow a search through all of the respondents’ records, relevant or irrelevant, in the hope that something will turn up. Berrie v. Berrie, 188 N.J. Super. 274, 286 (Law Div. 1983) (quoting F.T.C. v. American Tobacco Co., 264 U.S. 298, 306 (1924)); see also Camden Cnty. Energy Recovery Assocs., L.P. v. New Jersey Dept. of Envtl. Prot., 320 N.J. Super. 59, 64 (App. Div. 1999) (“Discovery is intended to 9 PAS-L-000455-22 09/28/2023 6:22:47 PM Pg 14 of 29 Trans ID: LCV20232973575 lead to facts supporting or opposing an asserted legal theory; it is not designed to lead to a formulation of a legal theory.”). As detailed below, each of the specific discovery requests seeking various categories of personnel documents and information related to other employees is improper, and Plaintiffs’ motion to compel discovery should be denied. 1. Plaintiffs are Not Entitled to Confidential Personnel Records Relating to Discipline of Current and Former Employees Spanning a Period of Nearly Six (6) Years (Interrogatory Nos. 46, 89-92, 95-104, 110-162; Request for Production Nos. 72, 74, 75, 97-98, 101-118) Corbion acknowledges that comparator data may be appropriately relevant and discoverable in a discrimination case where the comparators are similarly situated to the plaintiff(s). However, Plaintiffs’ requests go far beyond seeking comparator data and essentially seek wholesale access to Corbion’s disciplinary records irrespective of whether individuals actually engaged in comparable conduct for which each Plaintiff was ultimately terminated. As set forth in the disciplinary actions issued in connection with each Plaintiff’s termination, Martin Marcelo, Oliver Marcelo, and Lenin Rodriguez were each terminated for his respective multiple violations of company policies, among other things as outlined in their respective disciplinary action notices, as follows: Martin Marcelo was terminated for violating “the Last and Final Written warning by not following Corbion Work and Conduct Rules and not being a role model for others as he took extended breaks, etc., as detailed [in the disciplinary action]” and violating “work conduct rules includ[ing] wasting company time and abus[ing] [] break periods” and “us[ing] unprofessional language or insulting language toward another employee.” (Exhibit E; see also Exhibit H, Corbion Work and Conduct Rules included in Corbion’s Employee Handbook). Oliver Marcelo was terminated for his “[m]ultiple violations against the Company’s Policies and Behaviors as declared in the Employee Handbook (Pages 24-26) and Code of Conduct Policy,” including “[a]ttempting to retaliate against/intimidate other employees,” his “use of unprofessional/insulting 10 PAS-L-000455-22 09/28/2023 6:22:47 PM Pg 15 of 29 Trans ID: LCV20232973575 language to other employees,” his “failure to work efficiently,” “wasting company time, abuse of break periods,” “manipulating work load,” and his “failure to align with Corbion’s core behavior—team work.” (Exhibit F and H). Lenin Rodriguez was terminated for his “[m]ultiple violations against Company Policies and Behavior. Employee Handbook Work Conduct Rules (page 24- 25),” including his “use of unprofessional/insulting language to other employees,” “wasting company time, abuse of break periods,” “refusing to follow instructions issued by management pertaining to [his] work,” “manipulating work load,” his “failure to report injury,” as well as observations made during Corbion’s investigation regarding Rodriguez’s intimidation observed. (Exhibit G and H). Contrary to their assertions, Plaintiffs’ requests do not seek information and documentation regarding comparable misconduct (i.e., other employees who committed these types of violations of company policy), but instead demand that Corbion identify and produce all related documents regarding any and all current and former employees employed at any Corbion location in the United States over a nearly six (6) year period who had been: Disciplined by Ms. Wypasek (in any manner) or otherwise terminated from employment for any reason (Lichtenberg Cert., Exhibit I, Corbion’s Responses to Plaintiffs’ Interrogatories, at No. 89; Request for Production, at No. 72); or Disciplined or spoken to, whether by Ms. Wypasek or by anyone, for any violation of any workplace policy, including, but not limited to, the Corbion Work and Conduct Rules (Interrogatory Nos. 46, 90-92; Request for Production Nos. 74-75); or Spoken to; or issued a coaching notice; or issued a verbal warning; or issued a written warning; or suspended; or re-assigned; or re-trained; and/or was terminated for: o “Making/using offensive language at work” (Interrogatory Nos. 97 and 104; Request for Production No. 97); or o “Relat[ing] to lateness” (Interrogatory Nos. 110-115; Request for Production No. 95); or o “Making/using insulting language at work” (Interrogatory Nos. 117- 121); or o “Taking excessive breaks” or “wasting company’s time” or “abusing break periods” (Interrogatory Nos. 122-126, 128-131, 135; Request for Production Nos. 101, 103, 105); or 11 PAS-L-000455-22 09/28/2023 6:22:47 PM Pg 16 of 29 Trans ID: LCV20232973575 o “Talking/using cell phone at work” (Interrogatory Nos. 137-141; Request for Production No. 107); or o “Making threats, or threatening another employee” or being “accused of intimidation” or being “accused of coercing another employee” (Interrogatory Nos.143-147, 149-153, 155-159; Request for Production Nos. 111, 113, 115); or o “Failure to work efficiently” (Request for Production No. 109); or Issued a Final Warning for any reason or Last and Final Warning for any reason (Interrogatory Nos. 117-118; Request for Production 161-162). Plaintiffs also demanded that Corbion somehow identify any employee about whom “any person in the position of supervisor, manager (including, but not limited to Human Resource Managers) director, vice president or any other individual with disciplinary responsibilities become aware” had purportedly engaged in specified conduct but “was not spoken to or disciplined in any way,” including for: o Having “made, used, spoke or wrote any offensive language at work” (Interrogatory No. 104); or o “Starting work late”4 (Interrogatory No. 116); or o “Taking excessive breaks at work” or “abusing break periods at work” (Interrogatory Nos. 127 and 126); or o “Talking/using cell phone at work” (Interrogatory No. 142); or o “Making threats, or threatening another employee” or being “intimidating another employee” or being “coercing another employee” (Interrogatory Nos. 148, 154, 160). In addition, Plaintiffs vaguely (and confusingly) demanded that Corbion produce “[a]ll documents and electronic data, personnel files, disciplinary records of every employee who were [sic] not disciplined (as defined [in Plaintiffs’ Request for Production]) relating to allegations of”: o “Lateness” (Request for Production No. 96); or o “Making/using offensive language at work” (Request for Production No. 98); or o “Wasting company’s time” (Request for Production No. 102); or 4 This request included no time limit. 12 PAS-L-000455-22 09/28/2023 6:22:47 PM Pg 17 of 29 Trans ID: LCV20232973575 o “Taking extensive breaks” (Request for Production No. 104); or o “Abusing break periods” (Request for Production No. 106); or o “Failure to work efficiently” (Request for Production No. 110); or o “Making threats, or threatening another employee” (Request for Production No. 112); or o “Intimidation of another employee” (Request for Production No. 114); or o “Coercing another employee” (Request for Production No. 116); or o “Taking/using cell phone at work” (Request for Production No. 108). Plaintiffs have failed to explain how any of these employees are similarly situated to any of the Plaintiffs, nor can they. As an initial matter, Plaintiffs’ request for information and documentation relating to every employee employed by Corbion throughout the United States who was disciplined in any manner or otherwise terminated for any reason, or who was disciplined in any manner or otherwise terminated for any violation of company policy, or who was issued a Final Warning or a Last and Final Warning regardless of the reason for same, is in no way connected to the basis for Plaintiffs’ termination as outlined in their termination forms. (See Exhibits E, F, and G). Plaintiffs’ requests amount to nothing more than a thinly veiled attempt to rummage through confidential personnel-related information and files having no connection to the issues in this litigation or the worksite where they were employed. Similarly, Plaintiffs’ request for discovery relating to various categories of discipline issued to other employees over a nearly six (6) year period is far from being tailored to seeking discovery of similarly situated individuals. Plaintiffs are not seeking to discover discipline of individuals for comparable multi-faceted violations, but instead are attempting to break down the issues that collectively led to each’s termination. However, an employee being disciplined for having engaged in just one of the numerous infractions listed (e.g., an employee being spoken to about being late to work) in no way supports Plaintiffs’ claimed intention to develop comparator 13 PAS-L-000455-22 09/28/2023 6:22:47 PM Pg 18 of 29 Trans ID: LCV20232973575 discovery. Plaintiffs were not terminated for only one of the listed infractions, but for a multitude of misconduct in which they engaged. Moreover, the cases on which Plaintiffs rely do not aid their argument; rather, they show that comparator discovery is permitted where individuals are similarly situated. As they did in connection with their motion filed against Ms. Wypasek, Plaintiffs essentially misrepresent the facts of Savoie v. The Lawrenceville Sch., No. A-0288-10T1, 2013 WL 1492859 (App. Div. Apr. 12, 2013).5 (Pls.’ Br. at p. 21-23). That decision was not on a discovery motion and did not indicate how information was obtained by the plaintiff. In fact, the Court mentioned only that plaintiff “attempted to discover disciplinary files”; it never says that he did. (Id. at *7). Nevertheless, the plaintiff apparently learned about other alleged conduct of other employees that he attempted to argue was similar to the conduct for which he was terminated. Specifically, that plaintiff had been terminated for “inappropriate conduct that jeopardized the school’s reputation” in connection with his transmission of sexual images over the internet. (Id. at *4, 12). The Appellate Division did not issue any decision as to what constituted sufficiently similar misconduct engaged in by other employees, but instead directed the trial court to determine whether or not other employees’ conduct, including the failure to end an adulterous affair, or making offensive comments to a student and hacking into the school’s email system, or having angry outbursts at students, or a teacher’s acting inappropriate toward a female student, were sufficiently similar to the plaintiff’s inappropriate conduct that jeopardized the school’s reputation.6 (Id. at *14). 5 A true and correct copy of this decision is attached to the Lichtenberg Cert. as Exhibit N. 6 The Court, however, did note that it could “discern no sufficiently similar criteria between the driving offenses [driving under the influence] and plaintiff's alleged conduct.” Id. at *14. 14 PAS-L-000455-22 09/28/2023 6:22:47 PM Pg 19 of 29 Trans ID: LCV20232973575 Plaintiffs again try to rely on Salamone v. Carter’s Retail, Inc., No. 09-cv-5856, 2011 WL 310701 (D.N.J. Jan. 28, 2011),7 but such reliance is again misplaced. In Salamone, the employee was terminated for working off the clock and falsifying time records and the Court determined that similarly situated employees meant those disciplined or terminated for “working off the clock, timecard fraud, and/or any other timekeeping infraction.” (Id. at *12) (internal quotation marks omitted). In other words, the plaintiff was terminated for time issues and similarly situated employees were those also disciplined or terminated for time issues. In fact, the Court specifically noted that “‘similarly situated individuals’ in this litigation include[d] Defendant’s employees who were required to comply, and were disciplined or terminated for failing to do so, with the same timekeeping policies applied with respect to Plaintiff's termination.” (Id.) (emphasis added). Not only that, but the requested discovery was much more focused in terms of timing than Plaintiffs’ requests in the instant case, as in Salamone the plaintiff sought discovery related to employees who were disciplined one year before and one year after plaintiff’s termination. (Id. at *2). Indeed, the discovery sought in this matter is not like the discovery discussed in the cases relied upon by Plaintiffs. Plaintiffs are not seeking tailored discovery regarding timekeeping infractions under company policy in a case where plaintiff was terminated for timekeeping infractions under the same policy, or discovery regarding others’ inappropriate conduct that jeopardized the employer’s reputation in a case where the plaintiff was terminated for inappropriate conduct that jeopardized the employer’s reputation. Here, Plaintiffs were terminated for multiple issues and violations of company policy. Instead of seeking limited and focused discovery regarding comparable multiple violations, Plaintiffs seek information regarding those 7 A true and correct copy of this decision is attached to the Lichtenberg Cert. as Exhibit O. 15 PAS-L-000455-22 09/28/2023 6:22:47 PM Pg 20 of 29 Trans ID: LCV20232973575 who were disciplined in any way or terminated for any reason, for any policy violation, and for just one of a number of specific policy violations, regardless of whether they worked at the Totowa worksite or who issued the discipline. What is more, Defendants specifically asked Plaintiffs who their purported comparators were given their vague allegations regarding comparators in each Plaintiff’s Complaint. In their answers to interrogatories, Plaintiffs collectively identified a total of eight (8) individuals. (Lichtenberg Cert., Exhibit M, Pls.’ respective Answers to Interrogatory Nos. 32 and 34). For the same reasons set forth herein, while Corbion does not in any way concede that any of these eight (8) individuals are similarly situated to Plaintiffs, their identification of only these eight (8) individuals shows the overbreadth of the discovery requests at issue in this motion and confirms the instant discovery dispute is a fishing expedition. In other words, by only identifying eight (8) potential comparators, Plaintiffs impliedly concede the overbreadth of their sweeping demands. For these reasons, Corbion properly objected to these discovery requests and Plaintiffs’ motion to compel production of these documents and information should be denied. 2. Plaintiffs are Not Entitled to the Requested Information and Documentation Relating to Matthew McMahon (Interrogatory Nos. 106-109; Request for Production Nos. 85, 88, 89, 90) Plaintiffs’ discovery requests seeking information and documentation regarding former Corbion employee Matthew McMahon are objectionable for the same reasons set forth in Ms. Wypasek’s opposition and as set forth above in connection with Plaintiffs’ requests for broad- based (non-)comparator discovery. In the discovery requests relating to Mr. McMahon and directed to Corbion, Plaintiffs seek: “Any and all complaints of any kind made by any current or former employees against Mathew McMahon since the inception of his employment with the defendant to the present.” (Lichtenberg Cert., Exhibit I, Request for Production No. 85) 16 PAS-L-000455-22 09/28/2023 6:22:47 PM Pg 21 of 29 Trans ID: LCV20232973575 “Disciplinary measures” issued to Mr. McMahon for an isolated incident involving writing on a bulletin board in Corbion’s cafeteria (Interrogatory No. 106) All documents relating to any investigation of an isolated incident involving writing on a bulletin board in Corbion’s cafeteria (Request for Production No. 88) The reasons for Mr. McMahon’s termination and “[a]ll documents and data in connection with the termination of [Mr. McMahon].” (Interrogatory No. 107; Request for Production No. 89) “All documents and data relating to any investigation in connection with the termination of [Mr. McMahon].” (Interrogatory No. 108; Request for Production No. 90) Identify and describe each and every communication between Ms. Wypasek and Brian Wyss “relating to any workplace conduct of [Mr. McMahon].” (Interrogatory No. 109) In support of their request for broad-based discovery of confidential, personal information relating to a non-party, Plaintiffs assert that, because a Court Order was entered in a different case (Nandkumar) involving the termination of a different employee not at issue in this litigation, that Order must apply here. (Pls.’ Br. at p. 27-28). Plaintiffs are mistaken. See HD Supply Waterworks Grp., Inc. v. Dir., Div. of Taxation, 29 N.J. Tax 573, 584-85 (Tax 2017) (“[T]he determination of what requests are relevant, reasonable and likely to lead to the discovery of admissible evidence, and what demands are annoying, cumulative, oppressive or unduly burdensome, rests with the trial court and must be cautiously navigated on a case-by-case basis.”) (citing Berrie, 188 N.J. Super. at 278); Myers v. St. Francis Hosp., 91 N.J. Super. 377, 386 (App. Div. 1966) (“[R]elevance is basically a case-by-case proposition.”) (citation omitted). Moreover, Plaintiffs here miss the point that Mr. McMahon could have been a comparator to plaintiff Nandkumar; hence the Court’s Order in that case. Indeed, plaintiff Nandkumar alleged that he was engaged in an oral conversation with Mr. McMahon during which they both made what plaintiff Nandkumar believed to be inappropriate comments and for which he contended they received differential treatment. That does not make Mr. McMahon a comparator here, however. 17 PAS-L-000455-22 09/28/2023 6:22:47 PM Pg 22 of 29 Trans ID: LCV20232973575 In this case, the relevant starting point is the basis for Plaintiffs’ termination. Not one of the Plaintiffs was terminated solely for language violations but were terminated for a litany of violations. Plaintiffs’ attempt to engage in a wholesale fishing expedition into unrelated disciplinary actions and the basis for the Company’s decision to terminate an employee more than one (1) year after Plaintiffs’ termination should not be countenanced.8 In fact, Mr. McMahon’s termination had nothing to do with any of the conduct that Plaintiffs engaged in which led to their termination. Nor should Plaintiffs’ request for any communications Ms.