1005-00004 · Nexford Industrial Holdings · Pleadings

opposition-to-motion-to-compel.docx DOCUMENT Funds

11 / 12 ← → ✕

IN THE CIRCUIT COURT OF COOK COUNTY, ILLINOIS COUNTY DEPARTMENT, LAW DIVISION

DEFENDANT NEXFORD INDUSTRIAL HOLDINGS INC.'S RESPONSE IN OPPOSITION TO PLAINTIFF'S MOTION TO COMPEL PRODUCTION OF DOCUMENTS

Filed: August 12, 2022

I. INTRODUCTION

Defendant Nexford Industrial Holdings Inc. ("Nexford" or "Defendant"), by and through its attorneys, Calderwood & Harkness LLP, respectfully submits this Response in Opposition to Plaintiff Darren K. Maciejewski's ("Plaintiff") Motion to Compel Production of Documents (the "Motion"), filed on July 22, 2022. For the reasons set forth below, the Court should deny the Motion in its entirety.

Plaintiff's Motion seeks to compel production of the complete personnel files of all other employees in the Quality Assurance Department at Nexford's Elgin, Illinois manufacturing facility, located at 2700 Industrial Parkway, Elgin, IL 60123, who received attendance-related discipline but were not terminated during a nearly three-year period spanning from January 1, 2019 through September 24, 2021. This is a sweeping request for confidential third-party employment records that is overbroad, unduly burdensome, not proportional to the needs of this case, and invades the privacy rights of non-party employees who have no involvement in this litigation and no ability to protect their own interests before this Court.

Plaintiff's demand for this expansive production is particularly unjustified in light of the comprehensive discovery that Nexford has already provided. To date, Nexford has made a thorough and good-faith production in this matter, having produced 847 pages of documents, Bates-stamped NIH-000001 through NIH-000847. This production includes, among other things, Plaintiff's complete personnel file, all attendance and tardiness records pertaining to Plaintiff, the full progressive discipline documentation leading to Plaintiff's termination, the Environmental Health & Safety ("EHS") Department report regarding Building C of the Elgin facility, and relevant portions of the Nexford Employee Handbook, including Section 4.3 (Attendance and Tardiness Policy) — the very policy under which Plaintiff was disciplined and ultimately terminated. These materials provide Plaintiff with every document he needs to develop his claims and to understand the disciplinary framework applied to him.

Rather than demonstrate why this comprehensive production is insufficient, Plaintiff seeks to embark on a broad fishing expedition into the confidential personnel records of his former co-workers, without identifying a single specific comparator by name, position, or circumstance, and without proposing any protective order or redaction protocol to safeguard the sensitive personal information contained in those files. The Motion should be denied.

For all of the foregoing reasons, and as more fully set forth below, Nexford respectfully requests that the Court deny Plaintiff's Motion to Compel in its entirety.

II. RELEVANT FACTUAL AND PROCEDURAL BACKGROUND

A. Plaintiff's Employment and Termination

Plaintiff Darren K. Maciejewski was employed by Nexford as a Quality Assurance Supervisor at the company's Elgin, Illinois manufacturing facility beginning on June 12, 2017. During the course of his employment, Plaintiff was promoted to the position of Senior Quality Assurance Supervisor. Plaintiff remained employed in that capacity until his termination on September 24, 2021. At the time of his termination, Plaintiff's annual salary was $78,400.

Beginning in April 2021, Plaintiff made internal reports to Nexford management regarding chemical storage conditions in Building C of the Elgin facility. Specifically, on April 5, 2021, Plaintiff reported his concerns to his direct supervisor, Plant Manager Frank Bosch, during a meeting at the facility. On April 19, 2021, Plaintiff followed up by sending an email to the company's Environmental Health & Safety Department, directed to EHS Director Liam Gallagher, reiterating his concerns regarding chemical storage practices in Building C.

The EHS Department investigated Plaintiff's concerns and responded on May 3, 2021. In its written response, the EHS Department concluded that chemical storage in Building C was compliant with all applicable federal, state, and local regulations. The report did recommend certain minor labeling improvements, which Nexford promptly implemented, but the EHS Department found no regulatory violations or conditions posing an imminent danger to employees.

Unsatisfied with this internal resolution, Plaintiff filed a complaint with the Occupational Safety and Health Administration ("OSHA") on June 8, 2021, assigned OSHA Complaint No. 1734892. OSHA conducted an on-site inspection of the Elgin facility on July 12, 2021. Following its inspection and investigation, OSHA closed the complaint on August 18, 2021 with no citations issued and no findings of violation. The OSHA investigation thus independently confirmed the conclusions reached by Nexford's own EHS Department.

Independently and without regard to Plaintiff's safety reports or OSHA complaint, Nexford's management had been documenting and addressing Plaintiff's persistent attendance problems. On May 24, 2021, Plaintiff was issued a first written warning for tardiness. The warning documented four separate instances in which Plaintiff arrived more than fifteen minutes late to his scheduled shift within a thirty-day period, in violation of the company's attendance policy set forth in Section 4.3 of the Nexford Employee Handbook. The first written warning was issued by Plant Manager Frank Bosch, consistent with the company's established progressive discipline procedures.

Plaintiff's attendance problems continued. Between June 1 and July 31, 2021, Plaintiff accumulated three additional unexcused tardiness incidents. On August 2, 2021, Plaintiff was issued a final written warning for continued attendance violations. The final written warning expressly advised Plaintiff that any further attendance violations would result in termination of his employment.

On September 20, 2021, Plaintiff failed to report for his scheduled shift without calling in to notify his supervisor or any other member of management. Under Section 4.3 of the Nexford Employee Handbook, a failure to report for a scheduled shift without advance notice or a timely call-in is classified as an unexcused absence — a more serious infraction than tardiness — and constitutes grounds for immediate termination when it occurs after a final written warning has been issued.

On September 24, 2021, following a meeting with Plant Manager Frank Bosch and Vice President of Human Resources Catherine Donnelly, Plaintiff's employment was terminated pursuant to the company's progressive discipline policy for attendance violations. The termination memorandum, which has been produced to Plaintiff in this litigation (Bates No. NIH-000412), documents the basis for the termination decision and references each prior step in the progressive discipline process.

B. The Complaint and This Litigation

Plaintiff filed his Complaint in this Court on March 15, 2022, asserting three counts against Nexford:

Count I: Retaliatory Discharge under Illinois common law, alleging that Plaintiff's termination was in retaliation for his internal reports regarding chemical storage conditions in Building C and his filing of OSHA Complaint No. 1734892.

Count II: Retaliation under Section 11(c) of the Occupational Safety and Health Act, 29 U.S.C. § 660(c), alleging that Nexford retaliated against Plaintiff for exercising his rights under the Act.

Count III: Violation of the Illinois Whistleblower Act, 740 ILCS 174/1 et seq., alleging that Plaintiff's termination was in retaliation for disclosing information regarding conditions at the Elgin facility that Plaintiff believed constituted violations of state and federal environmental and safety regulations.

On April 18, 2022, Nexford filed its Answer and Affirmative Defenses, denying all material allegations of the Complaint. Nexford's affirmative defenses include, among others: (1) that Plaintiff was terminated for a legitimate, non-retaliatory business reason — namely, his persistent and well-documented attendance violations culminating in an unexcused absence following a final written warning; (2) that Plaintiff failed to exhaust his administrative remedies with respect to Count II; and (3) the after-acquired evidence doctrine.

At the Initial Case Management Conference held on April 28, 2022, before the Honorable Helena R. Vasquez-Torres, the Court entered a scheduling order establishing the following deadlines: fact discovery to close on December 15, 2022; expert disclosures due by January 15, 2023; and expert discovery to close on March 1, 2023. The parties are presently in the midst of fact discovery.

C. Discovery to Date

On May 10, 2022, Plaintiff served his First Set of Interrogatories (consisting of fifteen interrogatories) and First Request for Production of Documents (consisting of thirty-two document requests) on Nexford.

On June 24, 2022, Nexford served its written responses and objections to Plaintiff's discovery requests. Concurrently, Nexford produced 847 pages of documents, Bates-stamped NIH-000001 through NIH-000847. This production was comprehensive and included, without limitation, the following categories of materials:

• Plaintiff's complete personnel file, including all hiring documents, offer letters, performance evaluations, compensation history, and benefits enrollment records;

• All attendance and tardiness records maintained by Nexford for Plaintiff during the entirety of his employment;

• The first written warning dated May 24, 2021, documenting Plaintiff's four instances of tardiness exceeding fifteen minutes within a thirty-day period;

• The final written warning dated August 2, 2021, documenting three additional unexcused tardiness incidents between June 1 and July 31, 2021, and expressly advising Plaintiff that further attendance violations would result in termination;

• Documentation of Plaintiff's September 20, 2021 unexcused absence, including time and attendance system records and the supervisor's incident report;

• The September 24, 2021 termination memorandum, authored by Plant Manager Frank Bosch and countersigned by VP of Human Resources Catherine Donnelly;

• The EHS Department's written report on Building C chemical storage conditions, dated May 3, 2021, prepared by EHS Director Liam Gallagher, concluding that storage conditions were in compliance with applicable regulations;

• Email communications between Plaintiff, Frank Bosch, and the EHS Department regarding Plaintiff's safety reports, including Plaintiff's April 19, 2021 email to Liam Gallagher; and

• Relevant portions of the Nexford Employee Handbook, including Section 4.3 (Attendance and Tardiness Policy) and the company's progressive discipline framework.

Additionally, on July 1, 2022, Nexford served its own First Set of Interrogatories (consisting of ten interrogatories) and First Request for Production of Documents (consisting of eighteen document requests) on Plaintiff. Under the applicable rules, Plaintiff's responses to Nexford's discovery were due on or about August 1, 2022. As of the date of this filing, Plaintiff has not served any responses to Nexford's discovery requests, nor has Plaintiff sought an extension of time or communicated any basis for his failure to respond.

D. Plaintiff's Motion to Compel

On July 22, 2022, Plaintiff filed the instant Motion to Compel Production of Documents. Plaintiff's Motion seeks an order from this Court requiring Nexford to produce the personnel files — including all attendance records, disciplinary records, and termination documentation — of all employees in the Quality Assurance Department at the Elgin facility who received any form of attendance-related discipline but were not terminated during the period from January 1, 2019 through September 24, 2021.

Plaintiff contends in his Motion that this so-called "comparator" evidence is necessary to establish that Nexford's stated legitimate reason for his termination — persistent attendance violations — was pretextual, and that the true motivation for Plaintiff's termination was retaliation for his protected safety reports and OSHA complaint.

During the parties' meet-and-confer process, which was conducted via telephone conference on July 14, 2022 between undersigned counsel and Plaintiff's counsel Gerald P. Hess of Hess & Loughlin, P.C., Nexford objected to this request as overbroad, unduly burdensome, and not proportional to the needs of the case. Nexford also raised concerns regarding the privacy interests of non-party employees whose personnel files would be swept up in the production. The parties were unable to reach an agreement, and Plaintiff filed the instant Motion.

III. LEGAL STANDARD

Under Illinois Supreme Court Rule 201(b)(1), a party may obtain discovery regarding any matter relevant to the subject matter involved in the pending action, provided that the discovery sought is proportional to the needs of the case. Rule 214, which governs requests for production of documents, is likewise subject to the proportionality and relevance requirements of Rule 201.

In assessing proportionality, the Court considers the following factors: the importance of the issues at stake in the action; the amount in controversy; the parties' relative access to relevant information; the parties' resources; the importance of the discovery in resolving the issues; and whether the burden or expense of the proposed discovery outweighs its likely benefit. See Ill. S. Ct. R. 201(c)(3); see also Robidoux v. Oliphant, 201 Ill. 2d 324, 344 (2002) (affirming trial court's exercise of discretion in limiting discovery where the burden of production outweighed the likely benefit to the requesting party).

The party seeking to compel production of documents bears the burden of demonstrating that the requested discovery is both relevant and proportional to the needs of the case. Ill. S. Ct. R. 201(c)(3). It is not sufficient for the requesting party to assert, in conclusory fashion, that the requested materials "may" be relevant; rather, the requesting party must make an affirmative showing of the specific relevance of the materials sought and explain why the discovery already provided is inadequate. See Buehler v. Whalen, 2017 IL App (1st) 152645, ¶ 32 (noting that trial courts have broad discretion in managing discovery and may deny motions to compel where the requesting party has not carried its burden).

Illinois courts have consistently recognized their broad discretion in managing discovery and have not hesitated to deny motions to compel where the discovery sought is overbroad, would harass or unduly burden non-parties, or is disproportionate to the needs of the case. See, e.g., Krasnow v. Bender, 2012 IL App (1st) 111464, ¶ 28 (upholding trial court's refusal to compel production of non-party personnel files where the requesting party failed to demonstrate specific relevance); Department of Transp. v. Callender Constr. Co., 305 Ill. App. 3d 396, 405 (2d Dist. 1999) (recognizing that discovery requests must be "reasonably calculated to lead to the discovery of admissible evidence" and affirming the trial court's discretion to limit overbroad requests).

IV. ARGUMENT

A. Plaintiff's Request Is Overbroad and Disproportionate to the Needs of This Case

Plaintiff seeks a sweeping production of the complete personnel files of an undefined — and potentially quite large — number of non-party employees, spanning a nearly three-year period from January 1, 2019 through September 24, 2021. The breadth of this request alone warrants its denial.

The request is not limited to employees who are similarly situated to Plaintiff in any meaningful respect. Instead, it encompasses all employees in the Quality Assurance Department who received "any form of attendance-related discipline" during the relevant period, regardless of their position, supervisory status, job title, the nature or severity of the particular attendance violation at issue, or the stage of progressive discipline reached. Such a request sweeps in employees who may have received nothing more than a verbal counseling or a first written warning — disciplinary actions that are categorically different from Plaintiff's situation, which involved a final written warning followed by an unexcused absence. Employees at the earliest stages of the progressive discipline process are simply not comparable to an employee at the terminal stage.

The scope of the request would require Nexford to undertake a burdensome review process. Nexford would be required to identify every employee in the Quality Assurance Department over a nearly three-year period, determine which of those employees received any form of attendance-related discipline, locate and retrieve those employees' personnel files from both active and archived records systems, review each file page by page for responsiveness and privilege, and prepare the files for production — potentially with redactions to protect irrelevant but sensitive personal information. This exercise could involve the review and production of hundreds of additional pages of confidential personnel records, at significant expense in attorney time, human resources personnel time, and records management resources. The burden of this undertaking is disproportionate to any conceivable benefit.

The amount in controversy in this matter does not justify this level of intrusion into the records of uninvolved third parties. Plaintiff's Complaint seeks back pay based on an annual salary of $78,400 per year, $150,000 in claimed emotional distress damages, and $500,000 in punitive damages. Nexford's internal assessment, based on a reasonable evaluation of the claims and defenses, places its worst-case exposure at approximately $285,000. While these are not insubstantial sums, they do not justify a dragnet production of the confidential personnel records of numerous non-party employees, particularly where — as discussed below — Nexford has already provided comprehensive documentation of the policies and disciplinary actions applied to Plaintiff himself.

Moreover, the core factual issues in this case can be — and should be — resolved on the basis of the evidence that has already been produced and the evidence that can be obtained through more narrowly tailored discovery. The central questions in this litigation are: (1) whether Plaintiff engaged in protected activity; (2) whether Nexford was aware of that protected activity; (3) whether there was a causal connection between the protected activity and Plaintiff's termination; and (4) whether Nexford's stated reason for termination — Plaintiff's persistent attendance violations — was a legitimate, non-retaliatory business reason or was instead a pretext for retaliation. The existing production, which includes every document in Nexford's possession relating to Plaintiff's discipline and termination, the company's attendance policy, the EHS Department's investigation, and the relevant communications among Nexford's management, provides ample material for Plaintiff to develop his theories of the case.

Plaintiff has not articulated — in his Motion or during the meet-and-confer process — any specific reason why the 847 pages of documents already produced are insufficient to address the issues in this case. In the absence of such a showing, the Court should decline to order additional production that is overbroad and disproportionate to the needs of the litigation.

B. Nexford Has Already Produced Comprehensive Documentation Regarding Plaintiff's Discipline and Termination

As detailed above, Nexford has produced 847 pages of documents bearing Bates numbers NIH-000001 through NIH-000847. This production includes every document that is directly relevant to Plaintiff's claims and to Nexford's defenses.

With respect to Plaintiff's discipline and termination, the production includes: Plaintiff's complete personnel file, encompassing his hiring documents, offer letters, annual performance evaluations from each year of his employment, compensation and salary history, and benefits enrollment records; all attendance and tardiness records maintained by Nexford for Plaintiff throughout his employment; the first written warning dated May 24, 2021, issued by Plant Manager Frank Bosch, documenting four instances of tardiness in excess of fifteen minutes within a thirty-day period; the final written warning dated August 2, 2021, documenting three additional unexcused tardiness incidents and advising Plaintiff that further violations would result in termination; the incident report and time and attendance system records documenting Plaintiff's September 20, 2021 unexcused absence (a no-call, no-show); and the September 24, 2021 termination memorandum, authored by Plant Manager Frank Bosch and countersigned by VP of Human Resources Catherine Donnelly.

With respect to the alleged protected activity, the production includes: the EHS Department's May 3, 2021 report on Building C chemical storage conditions, prepared by EHS Director Liam Gallagher, which concluded that conditions were in compliance with applicable regulations while recommending minor labeling improvements; email communications between Plaintiff, Frank Bosch, and the EHS Department regarding Plaintiff's internal safety reports; and documentation concerning the OSHA complaint and subsequent inspection.

With respect to the policy framework, the production includes the relevant portions of the Nexford Employee Handbook, including Section 4.3 (Attendance and Tardiness Policy) and the company's progressive discipline framework, which sets forth the sequential steps of verbal warning, first written warning, final written warning, and termination.

These documents provide Plaintiff with a complete and detailed picture of the disciplinary process that was applied to him, the specific policy provisions under which he was disciplined, the timeline of events, and the stated rationale for his termination. They also provide Plaintiff with the materials necessary to assess the factual basis for Nexford's affirmative defense that Plaintiff was terminated for a legitimate, non-retaliatory business reason. Plaintiff has not explained, in his Motion or otherwise, why this comprehensive production is inadequate to allow him to prosecute his claims and prepare for trial. The Court should not order additional, expansive discovery into the personnel files of non-party employees absent such a showing.

C. The Request Invades the Privacy Interests of Non-Party Employees

Plaintiff's request, if granted, would require Nexford to produce the complete personnel files of non-party employees who have no involvement in this litigation, no notice of the pending request, and no opportunity to be heard regarding the disclosure of their confidential records. The privacy interests at stake are substantial and militate strongly against compelling production.

Personnel files contain highly sensitive personal information. By their nature, such files typically include employees' Social Security numbers, dates of birth, home addresses, emergency contact information, compensation and benefits data, tax withholding forms (W-4s), medical information (including documentation related to FMLA leave, accommodation requests, and fitness-for-duty certifications), performance evaluations containing subjective assessments by supervisors, family status information, and other private details that employees reasonably expect will remain confidential. The disclosure of such information in connection with litigation to which these employees are not parties raises serious privacy concerns.

Illinois law recognizes the importance of protecting the confidentiality of employee personnel records. The Illinois Personnel Record Review Act, 820 ILCS 40/1 et seq., establishes a framework governing employee access to their own personnel records and restricting employer disclosure of such records to third parties. While this statute does not create an absolute bar to discovery of personnel records in all circumstances, it reflects the strong public policy of this State in favor of protecting the privacy of employee personnel information.

Notably, Plaintiff has not proposed any protective order or redaction protocol that would safeguard the privacy interests of the non-party employees whose files he seeks. Plaintiff's Motion requests production of "complete personnel files" without limitation, qualification, or any mechanism to prevent the unnecessary disclosure of sensitive personal information that has no bearing on the comparator analysis Plaintiff purports to require. This failure to propose even the most basic protections for non-party privacy underscores the overbreadth and lack of proportionality of the request.

The Court should not order the wholesale production of confidential third-party personnel records absent a showing that: (1) the specific information sought is directly relevant to the claims or defenses in this action; (2) the request is narrowly tailored to seek only the relevant information; and (3) the information cannot be obtained through less intrusive means. Plaintiff has made none of these showings.

As an alternative to production of complete personnel files, less intrusive discovery mechanisms exist that could address Plaintiff's purported need for comparator information while respecting the privacy interests of non-party employees. For example, Plaintiff could serve targeted interrogatories asking Nexford to identify the number and positions of employees in the Quality Assurance Department who were subject to the same stage of progressive discipline as Plaintiff — specifically, employees who received a final written warning for attendance violations and subsequently incurred an additional unexcused absence — and to state whether those employees were terminated or retained. Such interrogatories would provide Plaintiff with the data he claims to need for his pretext analysis without requiring the wholesale production of confidential personnel files. Plaintiff has not availed himself of this alternative, choosing instead to demand the broadest possible production.

D. Plaintiff's Request Fails to Meet the Threshold for Comparator Evidence

Even if the Court were to accept the premise that comparator evidence might be relevant to Plaintiff's pretext theory, Plaintiff's Motion fails to meet the threshold showing necessary to justify the discovery he seeks.

To be probative of pretext, comparator evidence must involve employees who are "similarly situated in all material respects" to the plaintiff. This requires, at a minimum, that the putative comparator employees held the same or a substantially similar position, were subject to the same policies and supervisory authority, engaged in conduct of comparable seriousness, and reached the same stage of the disciplinary process. See, e.g., Patterson v. Avery Dennison Corp., 281 F.3d 676, 680 (7th Cir. 2002) (holding that comparator employees must be "directly comparable to the plaintiff in all material respects"); Humphries v. CBOCS W., Inc., 474 F.3d 387, 405 (7th Cir. 2007) (same). While these cases arise under federal employment discrimination law, the same principles apply to pretext analysis in retaliation cases, including claims under Illinois common law and the Illinois Whistleblower Act.

Plaintiff has identified no specific comparator employee by name, position, or circumstance. The Motion to Compel rests entirely on Plaintiff's speculation that comparators exist — that there are employees in the Quality Assurance Department who committed attendance violations similar to Plaintiff's but were treated more leniently. But speculation is not a basis for compelling the production of confidential personnel files. Plaintiff has offered no factual basis — not a single declaration, affidavit, or even a statement on information and belief — suggesting that any particular employee was in fact treated differently than Plaintiff under similar circumstances.

Moreover, the relevant inquiry for purposes of pretext analysis is not whether any employee in the Quality Assurance Department at any time during a three-year period ever received an attendance-related warning of any kind. The relevant question is whether any employee who reached the same disciplinary stage as Plaintiff — an employee who had received a final written warning for attendance violations and then committed a subsequent unexcused absence — was treated differently, i.e., was retained rather than terminated.

Plaintiff's request is not tailored to this inquiry. Instead, it sweeps in every employee who received "any form" of attendance-related discipline, a formulation so broad as to encompass verbal counselings, informal coaching sessions, first written warnings, and other early-stage disciplinary interventions that are categorically dissimilar to Plaintiff's situation. An employee who received a single verbal warning for arriving five minutes late on one occasion is not similarly situated to Plaintiff, who accumulated seven instances of tardiness over a four-month period, received both a first written warning and a final written warning, and then failed to report for a scheduled shift without notice. The comparison of such dissimilar disciplinary situations would shed no light on whether Nexford treated Plaintiff differently because of his protected activity, and would instead generate confusion and introduce irrelevant information into the record.

Plaintiff's broad, undifferentiated request for comparator files amounts to nothing more than a fishing expedition — a hope that somewhere in the personnel files of the Quality Assurance Department, there might be an employee whose experience supports Plaintiff's pretext theory. Illinois courts do not permit parties to conduct such expeditions. Discovery must be targeted and specific, not speculative. The Motion should be denied on this basis alone.

E. If the Court Is Inclined to Permit Any Comparator discovery, Plaintiff Should Be Required to Narrow the Request

Should the Court be inclined to allow some form of comparator discovery over Nexford's objections, Nexford respectfully requests that any such order be narrowly drawn to minimize the burden on Nexford and the intrusion on the privacy interests of non-party employees, while ensuring that any comparator information produced is genuinely probative of the issues in this case.

An appropriately tailored request, in Nexford's view, might be limited to the following parameters:

(a) Position: Only employees who held the same or substantially equivalent position as Plaintiff — namely, Quality Assurance Supervisor or Senior Quality Assurance Supervisor — rather than all employees at any level within the Quality Assurance Department;

(b) Stage of Discipline: Only employees who reached the final written warning stage of progressive discipline specifically for attendance violations — rather than any employee who received "any form" of attendance-related discipline, which would sweep in verbal counselings, informal discussions, and first written warnings;

(c) Supervision: Only employees who were under the supervision of the same Plant Manager, Frank Bosch, who made the decision to terminate Plaintiff — to ensure a meaningful comparison of how the same decision-maker treated similarly situated employees;

(d) Policy Period: Only during the period in which the relevant attendance policy — Nexford Employee Handbook Section 4.3 — was in effect and unchanged, to ensure that any comparison involves employees who were subject to the same policy framework as Plaintiff.

Even with these limitations, Nexford submits that any production of comparator information should be subject to an appropriate confidentiality and protective order, entered by the Court, limiting the use of any produced materials to this litigation and prohibiting further dissemination. Additionally, appropriate redactions should be made to remove personal identifying information — including Social Security numbers, home addresses, dates of birth, medical information, and other sensitive data — that has no relevance to the disciplinary comparison at issue. The Court should require the parties to meet and confer regarding the terms of such a protective order before any production of non-party personnel materials is ordered.

Nexford raises these points in the interest of providing the Court with a workable alternative in the event the Court determines that some comparator discovery is warranted. Nexford, however, maintains its primary position that the Motion should be denied in its entirety for the reasons set forth above.

F. Plaintiff's Own discovery Defaults Weigh Against Granting the Motion

Finally, it bears noting that Plaintiff himself has failed to comply with his own discovery obligations in this case. This failure is relevant to the equities of the Motion and to the Court's exercise of its broad discretion in managing the discovery process.

On July 1, 2022, Nexford served its First Set of Interrogatories, consisting of ten interrogatories, and its First Request for Production of Documents, consisting of eighteen document requests, on Plaintiff. Under the applicable Illinois Supreme Court Rules, Plaintiff's responses to these discovery requests were due on or about August 1, 2022 — twenty-eight days after service, as required by Rule 213(d) for interrogatories and Rule 214(c) for document requests.

As of the date of this filing — August 12, 2022 — Plaintiff has not served any responses to Nexford's First Set of Interrogatories or First Request for Production of Documents. Plaintiff has not requested an extension of time to respond, has not communicated any reason for the delay, and has not indicated when responses will be forthcoming. Plaintiff is now eleven days past the deadline for responding to Nexford's discovery, with no explanation offered.

This Court should consider Plaintiff's non-compliance with his own discovery obligations when evaluating the equities of the present Motion. A party who is in default of his own discovery obligations is not well positioned to seek expansive and burdensome additional production from the opposing party. The principle of reciprocity in discovery is fundamental to the orderly administration of litigation, and a party who refuses to participate in discovery in good faith should not be rewarded with an order compelling the opposing party to undertake a costly and invasive production of third-party records.

Nexford does not suggest that Plaintiff's discovery default is, standing alone, a sufficient basis to deny the Motion. But in the exercise of its discretion, the Court may properly take this factor into account when weighing the overall reasonableness and good faith of Plaintiff's discovery conduct and when determining whether the Motion should be granted. See Ill. S. Ct. R. 219(c) (authorizing courts to impose sanctions, including barring discovery, where a party unreasonably fails to comply with discovery rules or orders).

V. CONCLUSION

For all of the foregoing reasons, Defendant Nexford Industrial Holdings Inc. respectfully requests that this Court enter an order denying Plaintiff's Motion to Compel Production of Documents in its entirety. Plaintiff's request for the complete personnel files of all Quality Assurance Department employees who received any form of attendance-related discipline over a nearly three-year period is overbroad, unduly burdensome, disproportionate to the needs of this case, and invasive of the privacy interests of non-party employees. Nexford has already produced 847 pages of documents that provide Plaintiff with comprehensive documentation of his own discipline and termination, the applicable policies, and the circumstances surrounding his safety reports. Plaintiff has failed to demonstrate that this production is inadequate or that the sweeping additional production he demands is necessary or appropriate.

In the alternative, should the Court be inclined to order any comparator discovery, Nexford respectfully requests that the Court: (1) require Plaintiff to substantially narrow the scope of his request consistent with the parameters described in Section IV.E above; and (2) enter an appropriate protective order governing the confidentiality of any non-party personnel materials produced, with provisions for redaction of personal identifying information not relevant to the disciplinary comparison at issue.

Respectfully submitted,

NEXFORD INDUSTRIAL HOLDINGS INC., By its attorneys,

CALDERWOOD & HARKNESS LLP

By: ________

Bernard Crawford (ARDC No. 6298417) Calderwood & Harkness LLP 227 West Monroe Street, Suite 3600 Chicago, IL 60606 Telephone: (312) 555-7200

Email: bcrawford@calderwoodharkness.com

Attorneys for Defendant Nexford Industrial Holdings Inc.

Prepared by: Nadia Petrov, Lead Associate, Calderwood & Harkness LLP

CERTIFICATE OF SERVICE

The undersigned, an attorney, hereby certifies that on August 12, 2022, a true and correct copy of the foregoing Defendant Nexford Industrial Holdings Inc.'s Response in Opposition to Plaintiff's Motion to Compel Production of Documents was served upon the following counsel of record via the Court's electronic filing system and by email transmission to the email address listed below:

Gerald P. Hess Hess & Loughlin, P.C. 3412 Harlem Avenue, Suite 205 Berwyn, IL 60402

Email: ghess@hessloughlin.com

________________________________________

Nadia Petrov Calderwood & Harkness LLP 227 West Monroe Street, Suite 3600 Chicago, IL 60606 Telephone: (312) 555-7200

Email: npetrov@calderwoodharkness.com

DARREN K. MACIEJEWSKI,

<!-- indent:2 -->Plaintiff,<!-- /indent -->	Case No. 2022-L-002847
v.	Judge Helena R. Vasquez-Torres

NEXFORD INDUSTRIAL HOLDINGS INC.,

Defendant.

IN THE CIRCUIT COURT OF COOK COUNTY, ILLINOIS COUNTY DEPARTMENT, LAW DIVISION
DEFENDANT NEXFORD INDUSTRIAL HOLDINGS INC.'S RESPONSE IN OPPOSITION TO PLAINTIFF'S MOTION TO COMPEL PRODUCTION OF DOCUMENTS
Filed: August 12, 2022
I. INTRODUCTION
Defendant Nexford Industrial Holdings Inc. ("Nexford" or "Defendant"), by and through its attorneys, Calderwood & Harkness LLP, respectfully submits this Response in Opposition to Plaintiff Darren K. Maciejewski's ("Plaintiff") Motion to Compel Production of Documents (the "Motion"), filed on July 22, 2022. For the reasons set forth below, the Court should deny the Motion in its entirety.
Plaintiff's Motion seeks to compel production of the complete personnel files of all other employees in the Quality Assurance Department at Nexford's Elgin, Illinois manufacturing facility, located at 2700 Industrial Parkway, Elgin, IL 60123, who received attendance-related discipline but were not terminated during a nearly three-year period spanning from January 1, 2019 through September 24, 2021. This is a sweeping request for confidential third-party employment records that is overbroad, unduly burdensome, not proportional to the needs of this case, and invades the privacy rights of non-party employees who have no involvement in this litigation and no ability to protect their own interests before this Court.
Plaintiff's demand for this expansive production is particularly unjustified in light of the comprehensive discovery that Nexford has already provided. To date, Nexford has made a thorough and good-faith production in this matter, having produced 847 pages of documents, Bates-stamped NIH-000001 through NIH-000847. This production includes, among other things, Plaintiff's complete personnel file, all attendance and tardiness records pertaining to Plaintiff, the full progressive discipline documentation leading to Plaintiff's termination, the Environmental Health & Safety ("EHS") Department report regarding Building C of the Elgin facility, and relevant portions of the Nexford Employee Handbook, including Section 4.3 (Attendance and Tardiness Policy) — the very policy under which Plaintiff was disciplined and ultimately terminated. These materials provide Plaintiff with every document he needs to develop his claims and to understand the disciplinary framework applied to him.
Rather than demonstrate why this comprehensive production is insufficient, Plaintiff seeks to embark on a broad fishing expedition into the confidential personnel records of his former co-workers, without identifying a single specific comparator by name, position, or circumstance, and without proposing any protective order or redaction protocol to safeguard the sensitive personal information contained in those files. The Motion should be denied.
For all of the foregoing reasons, and as more fully set forth below, Nexford respectfully requests that the Court deny Plaintiff's Motion to Compel in its entirety.
II. RELEVANT FACTUAL AND PROCEDURAL BACKGROUND
A. Plaintiff's Employment and Termination
Plaintiff Darren K. Maciejewski was employed by Nexford as a Quality Assurance Supervisor at the company's Elgin, Illinois manufacturing facility beginning on June 12, 2017. During the course of his employment, Plaintiff was promoted to the position of Senior Quality Assurance Supervisor. Plaintiff remained employed in that capacity until his termination on September 24, 2021. At the time of his termination, Plaintiff's annual salary was $78,400.
Beginning in April 2021, Plaintiff made internal reports to Nexford management regarding chemical storage conditions in Building C of the Elgin facility. Specifically, on April 5, 2021, Plaintiff reported his concerns to his direct supervisor, Plant Manager Frank Bosch, during a meeting at the facility. On April 19, 2021, Plaintiff followed up by sending an email to the company's Environmental Health & Safety Department, directed to EHS Director Liam Gallagher, reiterating his concerns regarding chemical storage practices in Building C.
The EHS Department investigated Plaintiff's concerns and responded on May 3, 2021. In its written response, the EHS Department concluded that chemical storage in Building C was compliant with all applicable federal, state, and local regulations. The report did recommend certain minor labeling improvements, which Nexford promptly implemented, but the EHS Department found no regulatory violations or conditions posing an imminent danger to employees.
Unsatisfied with this internal resolution, Plaintiff filed a complaint with the Occupational Safety and Health Administration ("OSHA") on June 8, 2021, assigned OSHA Complaint No. 1734892. OSHA conducted an on-site inspection of the Elgin facility on July 12, 2021. Following its inspection and investigation, OSHA closed the complaint on August 18, 2021 with no citations issued and no findings of violation. The OSHA investigation thus independently confirmed the conclusions reached by Nexford's own EHS Department.
Independently and without regard to Plaintiff's safety reports or OSHA complaint, Nexford's management had been documenting and addressing Plaintiff's persistent attendance problems. On May 24, 2021, Plaintiff was issued a first written warning for tardiness. The warning documented four separate instances in which Plaintiff arrived more than fifteen minutes late to his scheduled shift within a thirty-day period, in violation of the company's attendance policy set forth in Section 4.3 of the Nexford Employee Handbook. The first written warning was issued by Plant Manager Frank Bosch, consistent with the company's established progressive discipline procedures.
Plaintiff's attendance problems continued. Between June 1 and July 31, 2021, Plaintiff accumulated three additional unexcused tardiness incidents. On August 2, 2021, Plaintiff was issued a final written warning for continued attendance violations. The final written warning expressly advised Plaintiff that any further attendance violations would result in termination of his employment.
On September 20, 2021, Plaintiff failed to report for his scheduled shift without calling in to notify his supervisor or any other member of management. Under Section 4.3 of the Nexford Employee Handbook, a failure to report for a scheduled shift without advance notice or a timely call-in is classified as an unexcused absence — a more serious infraction than tardiness — and constitutes grounds for immediate termination when it occurs after a final written warning has been issued.
On September 24, 2021, following a meeting with Plant Manager Frank Bosch and Vice President of Human Resources Catherine Donnelly, Plaintiff's employment was terminated pursuant to the company's progressive discipline policy for attendance violations. The termination memorandum, which has been produced to Plaintiff in this litigation (Bates No. NIH-000412), documents the basis for the termination decision and references each prior step in the progressive discipline process.
B. The Complaint and This Litigation
Plaintiff filed his Complaint in this Court on March 15, 2022, asserting three counts against Nexford:
Count I: Retaliatory Discharge under Illinois common law, alleging that Plaintiff's termination was in retaliation for his internal reports regarding chemical storage conditions in Building C and his filing of OSHA Complaint No. 1734892.
Count II: Retaliation under Section 11(c) of the Occupational Safety and Health Act, 29 U.S.C. § 660(c), alleging that Nexford retaliated against Plaintiff for exercising his rights under the Act.
Count III: Violation of the Illinois Whistleblower Act, 740 ILCS 174/1 et seq., alleging that Plaintiff's termination was in retaliation for disclosing information regarding conditions at the Elgin facility that Plaintiff believed constituted violations of state and federal environmental and safety regulations.
On April 18, 2022, Nexford filed its Answer and Affirmative Defenses, denying all material allegations of the Complaint. Nexford's affirmative defenses include, among others: (1) that Plaintiff was terminated for a legitimate, non-retaliatory business reason — namely, his persistent and well-documented attendance violations culminating in an unexcused absence following a final written warning; (2) that Plaintiff failed to exhaust his administrative remedies with respect to Count II; and (3) the after-acquired evidence doctrine.
At the Initial Case Management Conference held on April 28, 2022, before the Honorable Helena R. Vasquez-Torres, the Court entered a scheduling order establishing the following deadlines: fact discovery to close on December 15, 2022; expert disclosures due by January 15, 2023; and expert discovery to close on March 1, 2023. The parties are presently in the midst of fact discovery.
C. Discovery to Date
On May 10, 2022, Plaintiff served his First Set of Interrogatories (consisting of fifteen interrogatories) and First Request for Production of Documents (consisting of thirty-two document requests) on Nexford.
On June 24, 2022, Nexford served its written responses and objections to Plaintiff's discovery requests. Concurrently, Nexford produced 847 pages of documents, Bates-stamped NIH-000001 through NIH-000847. This production was comprehensive and included, without limitation, the following categories of materials:
• Plaintiff's complete personnel file, including all hiring documents, offer letters, performance evaluations, compensation history, and benefits enrollment records;
• All attendance and tardiness records maintained by Nexford for Plaintiff during the entirety of his employment;
• The first written warning dated May 24, 2021, documenting Plaintiff's four instances of tardiness exceeding fifteen minutes within a thirty-day period;
• The final written warning dated August 2, 2021, documenting three additional unexcused tardiness incidents between June 1 and July 31, 2021, and expressly advising Plaintiff that further attendance violations would result in termination;
• Documentation of Plaintiff's September 20, 2021 unexcused absence, including time and attendance system records and the supervisor's incident report;
• The September 24, 2021 termination memorandum, authored by Plant Manager Frank Bosch and countersigned by VP of Human Resources Catherine Donnelly;
• The EHS Department's written report on Building C chemical storage conditions, dated May 3, 2021, prepared by EHS Director Liam Gallagher, concluding that storage conditions were in compliance with applicable regulations;
• Email communications between Plaintiff, Frank Bosch, and the EHS Department regarding Plaintiff's safety reports, including Plaintiff's April 19, 2021 email to Liam Gallagher; and
• Relevant portions of the Nexford Employee Handbook, including Section 4.3 (Attendance and Tardiness Policy) and the company's progressive discipline framework.
Additionally, on July 1, 2022, Nexford served its own First Set of Interrogatories (consisting of ten interrogatories) and First Request for Production of Documents (consisting of eighteen document requests) on Plaintiff. Under the applicable rules, Plaintiff's responses to Nexford's discovery were due on or about August 1, 2022. As of the date of this filing, Plaintiff has not served any responses to Nexford's discovery requests, nor has Plaintiff sought an extension of time or communicated any basis for his failure to respond.
D. Plaintiff's Motion to Compel
On July 22, 2022, Plaintiff filed the instant Motion to Compel Production of Documents. Plaintiff's Motion seeks an order from this Court requiring Nexford to produce the personnel files — including all attendance records, disciplinary records, and termination documentation — of all employees in the Quality Assurance Department at the Elgin facility who received any form of attendance-related discipline but were not terminated during the period from January 1, 2019 through September 24, 2021.
Plaintiff contends in his Motion that this so-called "comparator" evidence is necessary to establish that Nexford's stated legitimate reason for his termination — persistent attendance violations — was pretextual, and that the true motivation for Plaintiff's termination was retaliation for his protected safety reports and OSHA complaint.
During the parties' meet-and-confer process, which was conducted via telephone conference on July 14, 2022 between undersigned counsel and Plaintiff's counsel Gerald P. Hess of Hess & Loughlin, P.C., Nexford objected to this request as overbroad, unduly burdensome, and not proportional to the needs of the case. Nexford also raised concerns regarding the privacy interests of non-party employees whose personnel files would be swept up in the production. The parties were unable to reach an agreement, and Plaintiff filed the instant Motion.
III. LEGAL STANDARD
Under Illinois Supreme Court Rule 201(b)(1), a party may obtain discovery regarding any matter relevant to the subject matter involved in the pending action, provided that the discovery sought is proportional to the needs of the case. Rule 214, which governs requests for production of documents, is likewise subject to the proportionality and relevance requirements of Rule 201.
In assessing proportionality, the Court considers the following factors: the importance of the issues at stake in the action; the amount in controversy; the parties' relative access to relevant information; the parties' resources; the importance of the discovery in resolving the issues; and whether the burden or expense of the proposed discovery outweighs its likely benefit. See Ill. S. Ct. R. 201(c)(3); see also Robidoux v. Oliphant, 201 Ill. 2d 324, 344 (2002) (affirming trial court's exercise of discretion in limiting discovery where the burden of production outweighed the likely benefit to the requesting party).
The party seeking to compel production of documents bears the burden of demonstrating that the requested discovery is both relevant and proportional to the needs of the case. Ill. S. Ct. R. 201(c)(3). It is not sufficient for the requesting party to assert, in conclusory fashion, that the requested materials "may" be relevant; rather, the requesting party must make an affirmative showing of the specific relevance of the materials sought and explain why the discovery already provided is inadequate. See Buehler v. Whalen, 2017 IL App (1st) 152645, ¶ 32 (noting that trial courts have broad discretion in managing discovery and may deny motions to compel where the requesting party has not carried its burden).
Illinois courts have consistently recognized their broad discretion in managing discovery and have not hesitated to deny motions to compel where the discovery sought is overbroad, would harass or unduly burden non-parties, or is disproportionate to the needs of the case. See, e.g., Krasnow v. Bender, 2012 IL App (1st) 111464, ¶ 28 (upholding trial court's refusal to compel production of non-party personnel files where the requesting party failed to demonstrate specific relevance); Department of Transp. v. Callender Constr. Co., 305 Ill. App. 3d 396, 405 (2d Dist. 1999) (recognizing that discovery requests must be "reasonably calculated to lead to the discovery of admissible evidence" and affirming the trial court's discretion to limit overbroad requests).
IV. ARGUMENT
A. Plaintiff's Request Is Overbroad and Disproportionate to the Needs of This Case
Plaintiff seeks a sweeping production of the complete personnel files of an undefined — and potentially quite large — number of non-party employees, spanning a nearly three-year period from January 1, 2019 through September 24, 2021. The breadth of this request alone warrants its denial.
The request is not limited to employees who are similarly situated to Plaintiff in any meaningful respect. Instead, it encompasses all employees in the Quality Assurance Department who received "any form of attendance-related discipline" during the relevant period, regardless of their position, supervisory status, job title, the nature or severity of the particular attendance violation at issue, or the stage of progressive discipline reached. Such a request sweeps in employees who may have received nothing more than a verbal counseling or a first written warning — disciplinary actions that are categorically different from Plaintiff's situation, which involved a final written warning followed by an unexcused absence. Employees at the earliest stages of the progressive discipline process are simply not comparable to an employee at the terminal stage.
The scope of the request would require Nexford to undertake a burdensome review process. Nexford would be required to identify every employee in the Quality Assurance Department over a nearly three-year period, determine which of those employees received any form of attendance-related discipline, locate and retrieve those employees' personnel files from both active and archived records systems, review each file page by page for responsiveness and privilege, and prepare the files for production — potentially with redactions to protect irrelevant but sensitive personal information. This exercise could involve the review and production of hundreds of additional pages of confidential personnel records, at significant expense in attorney time, human resources personnel time, and records management resources. The burden of this undertaking is disproportionate to any conceivable benefit.
The amount in controversy in this matter does not justify this level of intrusion into the records of uninvolved third parties. Plaintiff's Complaint seeks back pay based on an annual salary of $78,400 per year, $150,000 in claimed emotional distress damages, and $500,000 in punitive damages. Nexford's internal assessment, based on a reasonable evaluation of the claims and defenses, places its worst-case exposure at approximately $285,000. While these are not insubstantial sums, they do not justify a dragnet production of the confidential personnel records of numerous non-party employees, particularly where — as discussed below — Nexford has already provided comprehensive documentation of the policies and disciplinary actions applied to Plaintiff himself.
Moreover, the core factual issues in this case can be — and should be — resolved on the basis of the evidence that has already been produced and the evidence that can be obtained through more narrowly tailored discovery. The central questions in this litigation are: (1) whether Plaintiff engaged in protected activity; (2) whether Nexford was aware of that protected activity; (3) whether there was a causal connection between the protected activity and Plaintiff's termination; and (4) whether Nexford's stated reason for termination — Plaintiff's persistent attendance violations — was a legitimate, non-retaliatory business reason or was instead a pretext for retaliation. The existing production, which includes every document in Nexford's possession relating to Plaintiff's discipline and termination, the company's attendance policy, the EHS Department's investigation, and the relevant communications among Nexford's management, provides ample material for Plaintiff to develop his theories of the case.
Plaintiff has not articulated — in his Motion or during the meet-and-confer process — any specific reason why the 847 pages of documents already produced are insufficient to address the issues in this case. In the absence of such a showing, the Court should decline to order additional production that is overbroad and disproportionate to the needs of the litigation.
B. Nexford Has Already Produced Comprehensive Documentation Regarding Plaintiff's Discipline and Termination
As detailed above, Nexford has produced 847 pages of documents bearing Bates numbers NIH-000001 through NIH-000847. This production includes every document that is directly relevant to Plaintiff's claims and to Nexford's defenses.
With respect to Plaintiff's discipline and termination, the production includes: Plaintiff's complete personnel file, encompassing his hiring documents, offer letters, annual performance evaluations from each year of his employment, compensation and salary history, and benefits enrollment records; all attendance and tardiness records maintained by Nexford for Plaintiff throughout his employment; the first written warning dated May 24, 2021, issued by Plant Manager Frank Bosch, documenting four instances of tardiness in excess of fifteen minutes within a thirty-day period; the final written warning dated August 2, 2021, documenting three additional unexcused tardiness incidents and advising Plaintiff that further violations would result in termination; the incident report and time and attendance system records documenting Plaintiff's September 20, 2021 unexcused absence (a no-call, no-show); and the September 24, 2021 termination memorandum, authored by Plant Manager Frank Bosch and countersigned by VP of Human Resources Catherine Donnelly.
With respect to the alleged protected activity, the production includes: the EHS Department's May 3, 2021 report on Building C chemical storage conditions, prepared by EHS Director Liam Gallagher, which concluded that conditions were in compliance with applicable regulations while recommending minor labeling improvements; email communications between Plaintiff, Frank Bosch, and the EHS Department regarding Plaintiff's internal safety reports; and documentation concerning the OSHA complaint and subsequent inspection.
With respect to the policy framework, the production includes the relevant portions of the Nexford Employee Handbook, including Section 4.3 (Attendance and Tardiness Policy) and the company's progressive discipline framework, which sets forth the sequential steps of verbal warning, first written warning, final written warning, and termination.
These documents provide Plaintiff with a complete and detailed picture of the disciplinary process that was applied to him, the specific policy provisions under which he was disciplined, the timeline of events, and the stated rationale for his termination. They also provide Plaintiff with the materials necessary to assess the factual basis for Nexford's affirmative defense that Plaintiff was terminated for a legitimate, non-retaliatory business reason. Plaintiff has not explained, in his Motion or otherwise, why this comprehensive production is inadequate to allow him to prosecute his claims and prepare for trial. The Court should not order additional, expansive discovery into the personnel files of non-party employees absent such a showing.
C. The Request Invades the Privacy Interests of Non-Party Employees
Plaintiff's request, if granted, would require Nexford to produce the complete personnel files of non-party employees who have no involvement in this litigation, no notice of the pending request, and no opportunity to be heard regarding the disclosure of their confidential records. The privacy interests at stake are substantial and militate strongly against compelling production.
Personnel files contain highly sensitive personal information. By their nature, such files typically include employees' Social Security numbers, dates of birth, home addresses, emergency contact information, compensation and benefits data, tax withholding forms (W-4s), medical information (including documentation related to FMLA leave, accommodation requests, and fitness-for-duty certifications), performance evaluations containing subjective assessments by supervisors, family status information, and other private details that employees reasonably expect will remain confidential. The disclosure of such information in connection with litigation to which these employees are not parties raises serious privacy concerns.
Illinois law recognizes the importance of protecting the confidentiality of employee personnel records. The Illinois Personnel Record Review Act, 820 ILCS 40/1 et seq., establishes a framework governing employee access to their own personnel records and restricting employer disclosure of such records to third parties. While this statute does not create an absolute bar to discovery of personnel records in all circumstances, it reflects the strong public policy of this State in favor of protecting the privacy of employee personnel information.
Notably, Plaintiff has not proposed any protective order or redaction protocol that would safeguard the privacy interests of the non-party employees whose files he seeks. Plaintiff's Motion requests production of "complete personnel files" without limitation, qualification, or any mechanism to prevent the unnecessary disclosure of sensitive personal information that has no bearing on the comparator analysis Plaintiff purports to require. This failure to propose even the most basic protections for non-party privacy underscores the overbreadth and lack of proportionality of the request.
The Court should not order the wholesale production of confidential third-party personnel records absent a showing that: (1) the specific information sought is directly relevant to the claims or defenses in this action; (2) the request is narrowly tailored to seek only the relevant information; and (3) the information cannot be obtained through less intrusive means. Plaintiff has made none of these showings.
As an alternative to production of complete personnel files, less intrusive discovery mechanisms exist that could address Plaintiff's purported need for comparator information while respecting the privacy interests of non-party employees. For example, Plaintiff could serve targeted interrogatories asking Nexford to identify the number and positions of employees in the Quality Assurance Department who were subject to the same stage of progressive discipline as Plaintiff — specifically, employees who received a final written warning for attendance violations and subsequently incurred an additional unexcused absence — and to state whether those employees were terminated or retained. Such interrogatories would provide Plaintiff with the data he claims to need for his pretext analysis without requiring the wholesale production of confidential personnel files. Plaintiff has not availed himself of this alternative, choosing instead to demand the broadest possible production.
D. Plaintiff's Request Fails to Meet the Threshold for Comparator Evidence
Even if the Court were to accept the premise that comparator evidence might be relevant to Plaintiff's pretext theory, Plaintiff's Motion fails to meet the threshold showing necessary to justify the discovery he seeks.
To be probative of pretext, comparator evidence must involve employees who are "similarly situated in all material respects" to the plaintiff. This requires, at a minimum, that the putative comparator employees held the same or a substantially similar position, were subject to the same policies and supervisory authority, engaged in conduct of comparable seriousness, and reached the same stage of the disciplinary process. See, e.g., Patterson v. Avery Dennison Corp., 281 F.3d 676, 680 (7th Cir. 2002) (holding that comparator employees must be "directly comparable to the plaintiff in all material respects"); Humphries v. CBOCS W., Inc., 474 F.3d 387, 405 (7th Cir. 2007) (same). While these cases arise under federal employment discrimination law, the same principles apply to pretext analysis in retaliation cases, including claims under Illinois common law and the Illinois Whistleblower Act.
Plaintiff has identified no specific comparator employee by name, position, or circumstance. The Motion to Compel rests entirely on Plaintiff's speculation that comparators exist — that there are employees in the Quality Assurance Department who committed attendance violations similar to Plaintiff's but were treated more leniently. But speculation is not a basis for compelling the production of confidential personnel files. Plaintiff has offered no factual basis — not a single declaration, affidavit, or even a statement on information and belief — suggesting that any particular employee was in fact treated differently than Plaintiff under similar circumstances.
Moreover, the relevant inquiry for purposes of pretext analysis is not whether any employee in the Quality Assurance Department at any time during a three-year period ever received an attendance-related warning of any kind. The relevant question is whether any employee who reached the same disciplinary stage as Plaintiff — an employee who had received a final written warning for attendance violations and then committed a subsequent unexcused absence — was treated differently, i.e., was retained rather than terminated.
Plaintiff's request is not tailored to this inquiry. Instead, it sweeps in every employee who received "any form" of attendance-related discipline, a formulation so broad as to encompass verbal counselings, informal coaching sessions, first written warnings, and other early-stage disciplinary interventions that are categorically dissimilar to Plaintiff's situation. An employee who received a single verbal warning for arriving five minutes late on one occasion is not similarly situated to Plaintiff, who accumulated seven instances of tardiness over a four-month period, received both a first written warning and a final written warning, and then failed to report for a scheduled shift without notice. The comparison of such dissimilar disciplinary situations would shed no light on whether Nexford treated Plaintiff differently because of his protected activity, and would instead generate confusion and introduce irrelevant information into the record.
Plaintiff's broad, undifferentiated request for comparator files amounts to nothing more than a fishing expedition — a hope that somewhere in the personnel files of the Quality Assurance Department, there might be an employee whose experience supports Plaintiff's pretext theory. Illinois courts do not permit parties to conduct such expeditions. Discovery must be targeted and specific, not speculative. The Motion should be denied on this basis alone.
E. If the Court Is Inclined to Permit Any Comparator discovery, Plaintiff Should Be Required to Narrow the Request
Should the Court be inclined to allow some form of comparator discovery over Nexford's objections, Nexford respectfully requests that any such order be narrowly drawn to minimize the burden on Nexford and the intrusion on the privacy interests of non-party employees, while ensuring that any comparator information produced is genuinely probative of the issues in this case.
An appropriately tailored request, in Nexford's view, might be limited to the following parameters:
(a) Position: Only employees who held the same or substantially equivalent position as Plaintiff — namely, Quality Assurance Supervisor or Senior Quality Assurance Supervisor — rather than all employees at any level within the Quality Assurance Department;
(b) Stage of Discipline: Only employees who reached the final written warning stage of progressive discipline specifically for attendance violations — rather than any employee who received "any form" of attendance-related discipline, which would sweep in verbal counselings, informal discussions, and first written warnings;
(c) Supervision: Only employees who were under the supervision of the same Plant Manager, Frank Bosch, who made the decision to terminate Plaintiff — to ensure a meaningful comparison of how the same decision-maker treated similarly situated employees;
(d) Policy Period: Only during the period in which the relevant attendance policy — Nexford Employee Handbook Section 4.3 — was in effect and unchanged, to ensure that any comparison involves employees who were subject to the same policy framework as Plaintiff.
Even with these limitations, Nexford submits that any production of comparator information should be subject to an appropriate confidentiality and protective order, entered by the Court, limiting the use of any produced materials to this litigation and prohibiting further dissemination. Additionally, appropriate redactions should be made to remove personal identifying information — including Social Security numbers, home addresses, dates of birth, medical information, and other sensitive data — that has no relevance to the disciplinary comparison at issue. The Court should require the parties to meet and confer regarding the terms of such a protective order before any production of non-party personnel materials is ordered.
Nexford raises these points in the interest of providing the Court with a workable alternative in the event the Court determines that some comparator discovery is warranted. Nexford, however, maintains its primary position that the Motion should be denied in its entirety for the reasons set forth above.
F. Plaintiff's Own discovery Defaults Weigh Against Granting the Motion
Finally, it bears noting that Plaintiff himself has failed to comply with his own discovery obligations in this case. This failure is relevant to the equities of the Motion and to the Court's exercise of its broad discretion in managing the discovery process.
On July 1, 2022, Nexford served its First Set of Interrogatories, consisting of ten interrogatories, and its First Request for Production of Documents, consisting of eighteen document requests, on Plaintiff. Under the applicable Illinois Supreme Court Rules, Plaintiff's responses to these discovery requests were due on or about August 1, 2022 — twenty-eight days after service, as required by Rule 213(d) for interrogatories and Rule 214(c) for document requests.
As of the date of this filing — August 12, 2022 — Plaintiff has not served any responses to Nexford's First Set of Interrogatories or First Request for Production of Documents. Plaintiff has not requested an extension of time to respond, has not communicated any reason for the delay, and has not indicated when responses will be forthcoming. Plaintiff is now eleven days past the deadline for responding to Nexford's discovery, with no explanation offered.
This Court should consider Plaintiff's non-compliance with his own discovery obligations when evaluating the equities of the present Motion. A party who is in default of his own discovery obligations is not well positioned to seek expansive and burdensome additional production from the opposing party. The principle of reciprocity in discovery is fundamental to the orderly administration of litigation, and a party who refuses to participate in discovery in good faith should not be rewarded with an order compelling the opposing party to undertake a costly and invasive production of third-party records.
Nexford does not suggest that Plaintiff's discovery default is, standing alone, a sufficient basis to deny the Motion. But in the exercise of its discretion, the Court may properly take this factor into account when weighing the overall reasonableness and good faith of Plaintiff's discovery conduct and when determining whether the Motion should be granted. See Ill. S. Ct. R. 219(c) (authorizing courts to impose sanctions, including barring discovery, where a party unreasonably fails to comply with discovery rules or orders).
V. CONCLUSION
For all of the foregoing reasons, Defendant Nexford Industrial Holdings Inc. respectfully requests that this Court enter an order denying Plaintiff's Motion to Compel Production of Documents in its entirety. Plaintiff's request for the complete personnel files of all Quality Assurance Department employees who received any form of attendance-related discipline over a nearly three-year period is overbroad, unduly burdensome, disproportionate to the needs of this case, and invasive of the privacy interests of non-party employees. Nexford has already produced 847 pages of documents that provide Plaintiff with comprehensive documentation of his own discipline and termination, the applicable policies, and the circumstances surrounding his safety reports. Plaintiff has failed to demonstrate that this production is inadequate or that the sweeping additional production he demands is necessary or appropriate.
In the alternative, should the Court be inclined to order any comparator discovery, Nexford respectfully requests that the Court: (1) require Plaintiff to substantially narrow the scope of his request consistent with the parameters described in Section IV.E above; and (2) enter an appropriate protective order governing the confidentiality of any non-party personnel materials produced, with provisions for redaction of personal identifying information not relevant to the disciplinary comparison at issue.
Respectfully submitted,
NEXFORD INDUSTRIAL HOLDINGS INC., By its attorneys,
CALDERWOOD & HARKNESS LLP
By: ________
Bernard Crawford (ARDC No. 6298417) Calderwood & Harkness LLP 227 West Monroe Street, Suite 3600 Chicago, IL 60606 Telephone: (312) 555-7200
Email: bcrawford@calderwoodharkness.com
Attorneys for Defendant Nexford Industrial Holdings Inc.
Prepared by: Nadia Petrov, Lead Associate, Calderwood & Harkness LLP
CERTIFICATE OF SERVICE
The undersigned, an attorney, hereby certifies that on August 12, 2022, a true and correct copy of the foregoing Defendant Nexford Industrial Holdings Inc.'s Response in Opposition to Plaintiff's Motion to Compel Production of Documents was served upon the following counsel of record via the Court's electronic filing system and by email transmission to the email address listed below:
Gerald P. Hess Hess & Loughlin, P.C. 3412 Harlem Avenue, Suite 205 Berwyn, IL 60402
Email: ghess@hessloughlin.com
________________________________________
Nadia Petrov Calderwood & Harkness LLP 227 West Monroe Street, Suite 3600 Chicago, IL 60606 Telephone: (312) 555-7200
Email: npetrov@calderwoodharkness.com
DARREN K. MACIEJEWSKI,
Plaintiff, | Case No. 2022-L-002847
v. | Judge Helena R. Vasquez-Torres
NEXFORD INDUSTRIAL HOLDINGS INC.,
Defendant.