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Erickson v. Biogen, Inc.

United States District Court, W.D. Washington, Seattle

June 19, 2019

BIOGEN, INC., Defendant.



         This 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 explained herein.

         I. BACKGROUND

         Plaintiff 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.)

         Shortly 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.)

         In 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.[1] (Id. at 10-11.)

         In 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.)

         On 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.)

         During 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”). (Id.)


         A. Motion to Compel Legal Standard

         This 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).

         B. Discovery Disputes

         1. ...

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