Sarah E. Bouchard

Partner

215.963.5077

sbouchard@morganlewis.com

Morgan, Lewis & Bockius LLP

1701 Market Street

Philadelphia, PA 19103-2921

Tel. 215.963.5000

Fax: 215.963.5001

www.morganlewis.com

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February 7, 2014

VIA ELECTRONIC CASE FILING SYSTEM

The Honorable James B. Clark, III

United States Magistrate Judge

United States District Court for the District of New Jersey

Martin Luther King, Jr. Federal Building, U.S. Courthouse PO 01

50 Walnut Street, Newark NJ 07101

Re: Barghout et al v. Bayer Healthcare Pharmaceuticals Inc. et al.,

No. 2:11-cv-01576 DMC/JAD (D.N.J)

Dear Judge Clark:

Pursuant to the Order dated January 31, 2014 (Dkt. No. 93), we write on behalf of Defendants 

Bayer HealthCare Pharmaceuticals Inc., Bayer HealthCare Consumer Care, and Bayer 

HealthCare Animal Health (collectively “Bayer” or “Defendants”) to move to compel Plaintiffs 

to supplement their responses to Interrogatory Nos. 14 and 15 of Defendants’ First Set of 

Interrogatories Directed to Plaintiffs (“Interrogatories”). Defendants seek the Court’s 

intervention because Plaintiffs both: (1) refuse to supplement interrogatory responses that were 

served over a year ago before any substantial discovery took place; and (2) decline to confirm 

that their existing responses are full and complete based on discovery completed since then. 

INTRODUCTION AND RELEVANT BACKGROUND

Bayer served the Interrogatories on May 3, 2012.1 Interrogatory No. 14 requests that Plaintiffs 

identify “each and every employee in a comparable or similar situation to you who you believe 

was treated in a different manner than you were treated during your employment.” Interrogatory

No. 15 requests that Plaintiffs identify “each and every specific provision of every policy, 

practice, or procedure that you challenge in [the] Complaint. . . .” Plaintiffs served their current 

 

1 The relevant portions of Bayer’s Interrogatories Directed to Plaintiff Victoria Barghout are attached hereto 

as Exhibit (“Ex.”) A. Interrogatories were simultaneously served on each Plaintiff with identical Nos. 14 and 15.

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The Honorable James B. Clark, III

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responses to these interrogatories at the outset of discovery, before they had the benefit of any 

defense witness depositions or the substantial number of documents produced by Bayer.2 

Since then, the parties have completed pre-certification fact discovery. Bayer has produced over 

200,000 pages of documents, including numerous documents relating to Bayer’s policies and 

procedures challenged in the TAC and relevant electronic documents returned from the email 

accounts of 82 custodians. Bayer also produced electronic personnel data for all employees 

(male and female) who worked at Bayer for at least one day between November 21, 2009 and 

December 2013. In addition, Plaintiffs have completed deposing Bayer’s Rule 30(b)(6) 

designees regarding all of the alleged policies and procedures challenged in the TAC (a total of 

ten witnesses), the eleven individual defendants, and nine additional fact witnesses. 

Plaintiffs have a basic obligation under the Federal Rules of Civil Procedure to supplement their 

responses to the Interrogatories based on information they have learned through discovery. On 

October 23, 2013, as pre-certification fact discovery3drew to a close, Bayer requested that 

Plaintiffs supplement their Interrogatory responses in light of the breadth of discovery exchanged 

since Plaintiffs last supplemented their interrogatory responses. Ex. E. After Bayer reiterated 

this request numerous times (see Exs. F, G), Plaintiffs indicated on January 15, 2014 that their 

responses to Interrogatory Nos. 14 and 15 “do not require supplementation at this time,” but,

notably, declined to confirm that their current responses were full and complete based on 

information provided during pre-certification fact discovery. Ex. H.

Plaintiffs’ refusal to supplement their responses to these interrogatories deprives Bayer of 

information critical to its case strategy at this stage of the proceedings. This information will 

inform expert discovery, dispositive motion practice, and opposition to any motions for 

class/collective action certification. For these reasons and those set forth below, Bayer

respectfully requests that this Court compel Plaintiffs to supplement their responses to 

Interrogatory Nos. 14 and 15 or confirm that their current responses are full and complete based 

on information provided during pre-certification fact discovery.

 

2 On June 4, 2012, Plaintiffs served initial responses to the Interrogatories consisting entirely of objections. 

Ex. B. After meeting and conferring, Plaintiffs supplemented their responses to Interrogatory No. 15 in July 2012, 

but these responses largely cut and pasted allegations from their Third Amended Complaint (“TAC”). Ex. C. 

Plaintiffs have not supplemented their responses to Interrogatory No. 15 since then. Similarly, between October 

2012 and December 4, 2012, Plaintiffs served supplemental responses to Interrogatory No. 14 to identify their 

alleged comparators, but have not updated their responses since then. Ex. D.

3

Per this Court’s June 7, 2012 Pretrial Scheduling Order, pre-certification discovery in this matter includes 

“full discovery as to the merits and damages of named Plaintiffs’ individual claims.” See Dkt. No. 52 at ¶ 3.

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The Honorable James B. Clark, III

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ARGUMENT

I. Plaintiffs Must Update Their Comparators List Based On Discovery.

Plaintiffs’ refusal to update the list of comparators that they provided at the outset of discovery is 

inconsistent with Rule 26. Plaintiffs are obligated to supplement their responses to the 

Interrogatories in a timely manner. See Fed. R. Civ., P. 26(e)(1)(A). As noted above, since 

Plaintiffs served their current responses to Interrogatory No. 14, Bayer has produced extensive 

electronic discovery and personnel data regarding the alleged comparators. In addition, Bayer 

has produced personnel data showing the employment histories (including compensation, 

promotion, and performance ratings) for all individuals who worked for Bayer during the 

liability period. Not surprisingly, this discovery has revealed that many of Plaintiffs’ alleged 

comparators listed in the current Interrogatory responses are inappropriate for a variety of 

reasons.4 Yet, Plaintiffs refuse to update their list of comparators, despite the fact that they now 

possess all of the information they need to identify their appropriate comparators. 

Plaintiffs’ refusal to supplement their responses to Interrogatory No. 14 is prejudicial to Bayer. 

The crux of Plaintiffs’ claims is that Bayer treated similarly situated male employees more 

favorably in terms of pay, promotions, and performance evaluations. To prove these claims, 

Plaintiffs bear the burden of identifying these male employees, establishing that they are 

similarly situated, and showing that they received higher merit increases, better performance 

evaluations, or promotions. Now that fact discovery is closed, Defendants are entitled to know 

the final list of comparators, as this information will inform Bayer’s assessment of its defenses to 

the merits of the Plaintiffs’ individual claims (and thus its ability to prepare dispositive motions), 

as well as how Bayer conducts expert discovery and prepares its defenses to class certification 

(e.g., the identity of comparators will inform the commonality, typicality, and adequacy

requirements, among others, of Rule 23(a)). Thus, Bayer respectfully requests that the Court 

compel Plaintiffs to supplement their responses to Interrogatory No. 14 or confirm that their 

current responses are complete based on the information provided during pre-certification fact 

discovery. Moreover, if Plaintiffs confirm that their current responses are final, they should not 

be permitted to modify these lists. “Pursuant to Rule 37(c)(1), if a party fails to . . . supplement a 

discovery response . . . ʻthe party is not allowed to use that information or witness to supply

evidence on a motion, at a hearing, or at trial, unless the failure was substantially justified or is 

 

4 Appropriate comparators in a Title VII case are those outside of the plaintiff’s protected class who are 

“nearly identical” to the plaintiff in “all of the relevant aspects” of employment and were treated more favorably 

than the plaintiff. See, e.g., Neely v. U.S. Postal Serv., 307 F. App’x 681, 684 (3d Cir. 2009); Wilcher v. Potter, No. 

08-2723, 2010 WL 2545963, at *4-5 (D.N.J. June 18, 2010). By contrast, Plaintiffs’ alleged comparators include 

women (i.e., those in the same protected class as Plaintiffs), Plaintiffs’ managers, employees with entirely different 

positions than Plaintiffs, and men who were paid less (not more) than the Plaintiffs.

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harmless.ʼ” Steele v. Aramark Corp., No. 09-4340, 2013 WL 6536184, at *1 (D.N.J. Dec. 13, 

2013) (citing Fed. R. Civ. P. 26(e) and 37(c)(1)). 

II. Plaintiffs Must Identify the Policies That They Challenge.

Plaintiffs purport to assert both disparate treatment and disparate impact claims. To state a 

cognizable disparate impact claim, Plaintiffs must first identify a specific policy or practice that 

allegedly has a significant, discriminatory effect on women. See Lanning v. SEPTA, 181 F.3d 

478, 485 (3d Cir. 1999); Smith v. City of Jackson, Miss., 544 U.S. 228, 241 (2005) (holding that 

parties must do more than allege a disparate impact or point to generalized policies in support 

thereof). Here, Plaintiffs insist that their responses to Interrogatory No. 15, which largely parrot 

allegations from the TAC,5do not require supplementation “at this time,” even though the parties 

have engaged in extensive discovery regarding Bayer’s actual policies and practices since 

Plaintiffs served their current responses to this interrogatory. Specifically, Bayer has produced 

thousands of documents, including emails from over 80 custodians, regarding its policies and 

practices and presented 10 corporate designees to testify regarding its policies and practices. 

Still, Plaintiffs offer no explanation as to why their responses to Interrogatory No. 15 “do not 

require supplementation at this time,” when such supplementation is mandated by Rule 26(e). 

Bayer is entitled to know which of its actual policies and practices Plaintiffs are challenging. As 

they now stand, Plaintiffs’ responses to Interrogatory No. 15 mimic allegations from the TAC 

rather than identify any of Bayer’s produced policies and practices. To the extent that Plaintiffs 

continue to insist that they need not supplement their responses, they should not be permitted to 

rely on any of Bayer’s policies and practices provided in discovery at a later date. Indeed, the 

Seventh Circuit in Bennett v. Roberts, 295 F.3d 687, 698-99 (7th Cir. 2002), held that the district 

court properly refused to consider specific employment policies raised for the first time at 

summary judgment because plaintiff did not disclose them in discovery despite defendant’s 

interrogatories specifically requesting the same. Numerous other courts routinely dismiss 

disparate impact claims where plaintiffs fail to identify the specific employment policy or 

practice they challenge. See, e.g., Voltz v. Coca-Cola Enters. Inc., 91 F. App’x 63, 73-74 (10th 

Cir. 2004) (affirming summary judgment on disparate impact claim where plaintiff “failed to 

identify any specific employment practice or policy” and instead made only “general allegations” 

regarding employment practices); Llamas v. Butte Cmty. Coll. Dist., 238 F.3d 1123, 1127 (9th 

Cir. 2001) (same); Batey v. M.P.W. Stone, 24 F.3d 1330, 1336 n.17 (11th Cir. 1994) (same). 

For the foregoing reasons, Bayer respectfully requests that this Court order Plaintiffs to provide 

full and complete responses to Interrogatory Nos. 14 and 15.

 

5

For instance, Plaintiffs’ responses to Interrogatory No. 15 allege that Bayer “employs performance 

objectives [] that lack sufficient standards and oversight, such that they can be manipulated to artificially depress the 

performance-based compensation and bonuses of women and mothers.” Compare Ex. C with TAC ¶ 673.

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Respectfully submitted,

Sarah E. Bouchard

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