United States District Court, W.D. Washington, Seattle
C. COUGHENOUR UNITED STATES DISTRICT JUDGE.
matter comes before the Court on the parties' joint
submission filed pursuant to W.D. Wash. Local Civ. R. 37(b)
(Dkt. No. 16). Having thoroughly considered the parties'
briefing and the relevant record, the Court hereby GRANTS the
motion in part and DENIES the motion in part, for the reasons
Danita Erickson was formerly employed as a Senior Territorial
Business Manager (“TBM”) for Defendant Biogen,
Inc.'s Pacific Northwest region. (Dkt. No. 1 at 3.) As a
TBM, Plaintiff contacted neurology practices in Washington
and Alaska in order to sell Biogen therapeutics.
(Id.) On September 5, 2017, while on a business trip
to Alaska, Plaintiff suffered a severe migraine, causing her
to reschedule multiple business appointments. (Id.)
Accompanying her on this trip was Mary Brown, Regional Sales
Director for the Pacific Northwest region and Plaintiff's
supervisor. (Id.) Plaintiff alleges that Ms. Brown
observed the effects of Plaintiff's migraine, and shortly
thereafter began inquiring about Plaintiff's migraine
frequency, severity, and effect on Plaintiff's work to
both Plaintiff and her colleagues. (Id. at 3-4.)
after her sales trip to Alaska, Plaintiff became concerned
with TBM Jim Lykins's marketing of Defendant's
therapeutic drug Zinbryta. (Id. at 4.) Zinbryta has
been approved by the Food and Drug Administration
(“FDA”) in a limited capacity-only to treat
multiple sclerosis (“MS”) patients who had an
inadequate response to other treatments. (Id.)
Plaintiff alleges that Mr. Lykins, with approval from Ms.
Brown, marketed Zinbryta to a non-MS patient in order for
Defendant to receive credit for the prescription.
(Id. at 5.) Plaintiff further alleges that Mr.
Lykins falsified International Classification of Disease
(“ICD”) codes in the non-MS patient's file in
order to show the patient was receiving Zinbryta to treat MS,
when in fact the patient suffered from an entirely different
disease. (Id. at 6.) Plaintiff alleges that this
practice violates the False Claims Act (“FCA”),
31 U.S.C § 3729. (Id. at 15.)
early December 2017, Plaintiff reported to Defendant that
this practice violates the FCA. (Id. at 9.) Several
days later, she was contacted by Defendant's litigation
counsel, Dan Curto. (Id.) Mr. Curto asked Plaintiff
for additional details about the alleged violation.
(Id.) Plaintiff states that, during the
conversation, she repeatedly expressed her concerns about
retaliation. (Id.) In the months following her
conversation with Mr. Curto, Plaintiff reported to Mr. Curto
and Defendant's Human Resources Officer Keri Palacio that
she was retaliated against several times, including being
ignored by Ms. Brown and other TBMs, and being forced to
undergo “ride-along” evaluations on short
notice. (Id. at 10-11.)
early 2018, Defendant underwent a restructuring of its
organization. (Dkt. No. 20 at 2.) As part of that
restructuring, one TBM position in the Pacific Northwest
region needed to be eliminated (the “RIF
process”). (Dkt. No. 19 at 2.) Ms. Brown and Zachary
Allison, General Manager of Defendant's Western division,
were responsible for deciding who to terminate.
(Id.) Defendant asserts that each TBM was evaluated
on Defendant's functional and behavioral assessment
during the RIF process. (Dkt. No. 20 at 2.) Defendant
contends that, of the candidates for termination, Plaintiff
had the lowest combined score. (Id.)
April 3, 2018, Plaintiff was terminated. (Id. at
13.) Plaintiff asserts that she was fired for illegal
discrimination and retaliation. (Id. at 14.)
Plaintiff brings age, gender, and disability discrimination
claims under Title VII of the Civil Rights Act of 1964 (Title
VII), 42 U.S.C. § 2000(e); the Age Discrimination in
Employment Act of 1967 (ADEA), 29 U.S.C. § 626; the
Americans with Disabilities Act of 1990 (ADA), 42 U.S.C
§ 12101-02; and Washington's Law Against
Discrimination (WLAD), Wash. Rev. Code. § 49.60. (Dkt.
No. 1 at 14-18.) Plaintiff also brings a retaliation claim
under the FCA, 31 U.S.C. § 3730(h); and a wrongful
termination claim under Washington's Consumer Protection
Act (CPA), Wash. Rev. Code § 19.86.020. (Id.)
discovery, Plaintiff served interrogatories and requests for
production seeking information related to her termination
specifically, as well as Defendant's financial and
employment practices on a nationwide scale. (See
Dkt. No. 16.) Defendant objects to various interrogatories
and requests for production on the grounds of relevance,
attorney-client privilege, and as violative of the
parties' prior stipulation regarding
electronically-stored information (“ESI”).
Motion to Compel Legal Standard
Court strongly disfavors discovery motions and prefers that
parties resolve discovery disputes on their own.
“Parties may obtain discovery regarding any
nonprivileged matter that is relevant to any party's
claim or defense and proportional to the needs of the
case.” Fed.R.Civ.P. 26(b)(1). Relevant information is
“any matter that bears on, or that reasonably could
lead to other matter that could bear on, any issue that is or
may be in the case.” Oppenheimer Fund, Inc. v.
Sanders, 437 U.S. 340, 351 (1978). Proportionality is a
matter of “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.” Fed.R.Civ.P. 26(b)(1).
If requested discovery is withheld inappropriately or goes
unanswered, the requesting party may move for an order
compelling such discovery. Fed.R.Civ.P. 37(a)(1). The Court
has broad discretion to decide whether to compel discovery.
Phillips ex rel. Estates of Byrd v. Gen. Motors
Corp., 307 F.3d 1206, 1211 (9th Cir. 2002).