Shah

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION

NILESH SHAH, :

:

Plaintiff, : Case No. 1:22-cv-00312

:

v. : Judge Jeffery P. Hopkins

:

FORTIVE CORPORATION, et al.,

:

:

Defendants.

:

OPINION AND ORDER

As one court observed, “[l]itigation is not a game. It is the timehonored-method of

seeking the truth, finding the truth, and doing justice.”1 Before the Court is Defendants’

Fortive Corporation, Advanced Sterilization Products, Inc., and Advanced Sterilization

Products Services, Inc. (collectively, “Defendants”)2 Motion to Strike (Doc. 94) (the

“Motion”) the declarations of two of Defendants’ former employees offered by Plaintiff

Nilesh Shah (“Plaintiff” or “Mr. Shah”) in support of his Motion for Partial Summary

Judgment (Doc. 77) against Defendants. Mr. Shah filed a response opposing (Doc. 101) the

Motion to Strike to which Defendants replied (Doc. 105). The Court heard oral argument in

this matter on April 22, 2026, and took the Motion to Strike (Doc. 94) under advisement.

Notation Order, 4/22/26.

1 Haeger v. Goodyear Tire & Rubber Co., 793 F.3d 1122, 1126 n.1 (9th Cir. 2015) (quoting Haeger v. Goodyear Tire

& Rubber Co., 906 F. Supp. 2d 938, 941 (D. Ariz. 2012)).

2 Defendants Fortive Corporation, Advanced Sterilization Products, Inc., and Advanced Sterilization

Products Services, Inc. are collectively referred to as “Defendants” in this Opinion and Order. Separately,

Fortive Corporation is referred to as “Fortive”; Advanced Sterilization Products, Inc. as “ASP”; and

Advanced Sterilization Products Services, Inc. as “ASPS.” Defendants ASP and ASPS are both wholly

owned subsidiaries of Defendant Fortive. See Am. Compl., Doc. 37, ¶ 8; Ivankovich Decl., Doc. 75, ¶ 2;

Doc. 78, PageID 1023.

The Motion to Strike and the opposition to it reflect the parties’ competing efforts to

use the discovery and evidentiary rules to shape the record in the manner most advantageous

to them but in so doing push the boundaries of those rules. Mr. Shah attempts to supplement

the record with new declarations of key witnesses filed; Defendants respond by moving to

strike those declarations and by submitting a new declaration of their own from one of the

witnesses. However, the Federal Rules of Evidence and Civil Procedure do not dictate such

a restrictive approach and the Court declines to adopt one here. Accordingly, for the reasons

provided below, Defendants’ Motion to Strike (Doc. 94) is DENIED.

I. BACKGROUND

This case arises from an employment contract dispute between Mr. Shah and

Defendants, his former employers. See Am. Compl., Doc. 37. Mr. Shah alleges in the

Amended Complaint that Defendants are obligated to cover his foreign tax liabilities incurred

while he was working for Defendants as an expatriate in Singapore. Id. ¶¶ 21–22. During

discovery, Mr. Shah identified former executives Aliza Scott (“Ms. Scott”) and Dominic

Ivankovich (“Mr. Ivankovich”) as persons who possessed information relevant to those

allegations. Ds.’ Ex. 1, Doc. 105-1, PageID 3253–54. On September 11, 2024, Mr. Shah

served his initial disclosures and identified Ms. Scott, ASP’s former Vice President of Human

Resources, and Mr. Ivankovich, ASP’s former President, as persons likely to have

“discoverable information” that he would use “to support his claims and defenses, including

. . . information regarding Defendants’ breaches of express and/or implied contracts . . . and

the resulting emotional distress and damages suffered by Plaintiff.” Id. Consistent with that

disclosure, Mr. Shah later identified Ms. Scott and Mr. Ivankovich in his Disclosure of Lay

Witnesses (Ds.’ Ex. 3, Doc. 105-3) filed on February 24, 2025, and in his Responses to

Defendant Fortive Corporation’s First Interrogatories and Requests for Production (Ds.’ Ex.

2, Doc. 105-2), listing each as lay witnesses “who may testify at the trial” and stating that they

“may have information regarding Defendants’ breaches of contract . . . and the impact they

had on Plaintiff.” Ds.’ Ex. 3, Doc. 105-3, PageID 3281; Ds.’ Ex. 2, Doc. 105-2, PageID 3261.

During this litigation, Mr. Shah disclosed and then produced declarations he had

obtained from Mr. Ivankovich and Ms. Scott to Defendants.3 Ds.’ Ex. 1, Doc. 94-1, PageID

3051–54. Importantly, for determining the outcome in this dispute, Ms. Scott and Mr.

Ivankovich both testified in their respective declarations that they were directly involved in

negotiating the terms of Mr. Shah’s 2019 employment letter, central to the dispute in this

litigation. Ivankovich Decl., Doc. 75, ¶¶ 6, 11; Scott Decl., Doc. 76, ¶ 3. Important, here, also,

Mr. Ivankovich avers that he and other senior leaders negotiated the tax assistance provisions

personally with Mr. Shah to ensure that he would not be placed in a worse position financially

by virtue of working in Singapore, and that the “agreed-upon tax terms” were drafted in order

to protect Mr. Shah from double taxation on his income. Ivankovich Decl., Doc. 75, ¶¶ 8, 10.

Adding to the narrative, Ms. Scott’s testimony in her declaration went further to state that “as

part of Nilesh’s compensation,” an agreement was made that “ASP would pay the income

taxes [Mr. Shah] would owe to Singapore, while [Mr. Shah] would be responsible for paying

the income taxes he would owe to the U.S.” Scott Decl., Doc. 76, ¶ 5.

3 The relevant dates are as follows. The Court’s Scheduling Order (Notation Order, 10/03/2025) set December

15, 2025, as the discovery deadline. Mr. Shah’s counsel obtained Mr. Ivankovich’s declaration on December

15, 2025, and produced it to Defendants on January 9, 2026. Ivankovich Decl., Doc. 75, PageID 983; Ds.’

Ex. 1, Doc. 94-1, PageID 3051. He obtained Ms. Scott’s declaration on January 14, 2026, and presented it

to Defendants that same day. Scott Decl., Doc. 76, PageID 989; Ds.’ Ex. 1, Doc. 94-1, PageID 3053; Doc.

100, PageID 3152. Both declarations were filed on the docket on January 14, 2026. Docs. 75, 76. It also bears

noting that Plaintiff’s Motion for Partial Summary Judgment (Doc. 77) and Defendants’ Motion for

Summary Judgment (Doc. 83) were filed on January 14, 2026, the same day that Mr. Shah filed the

declarations of Ms. Scott and Mr. Ivankovich. As of this Opinion and Order, those summary judgment

motions (Docs. 77, 83) are currently pending before the Court.

In the Motion to Strike (Doc. 94) currently under review, Defendants oppose the

introduction of any of the evidence from both declarations for three separate reasons. First,

Defendants argue that Plaintiff’s counsel violated procedures purportedly adopted by this

Court governing ex parte contact with a former employee of an opponent. Doc. 94, PageID

3043. In essence, Defendants claim that Mr. Shah was required to provide them with written

notice before obtaining the declarations of its former employees so that Defendants could give

informed consent but failed to do so in violation of the procedures purportedly adopted by

the Southern District of Ohio. Id. at PageID 3043–44. Second, Defendants contend that Mr.

Shah also failed to timely disclose the declarations during the discovery period, which closed

on December 15, 2025. Id. at PageID 3045; Notation Order, 10/3/25. Lastly, Defendants

argue that the declarations constitute inadmissible hearsay and are irrelevant because neither

declarant had authority to speak on behalf of Defendants’ legal department regarding complex

tax matters. Id. at PageID 3045–46.

In addition to other documents, Defendants attached to the Motion to Strike (Doc. 94)

a second declaration from Mr. Ivankovich. Ivankovich Decl., Doc. 94-2. In the second

declaration proffered by Defendants, Mr. Ivankovich states, among other things, that

Plaintiff’s counsel failed to warn him not to reveal privileged information and that the

expatriate provision in Mr. Shah’s letter was not intended to provide a “tax windfall” to Mr.

Shah. Id. ¶¶ 6, 8, 9. Mr. Ivankovich also makes clear in the second declaration that he “did

not view Shah’s two page, 2019 offer letter as an employment contract.” Id. ¶ 9 (“The desire

of the 2019 offer letter was to assist [Mr.] Shah to be in no worse financial position as it related

to his tax returns by virtue of working in Singapore. There was no intent, per the offer letter

or otherwise, for [Mr.] Shah to receive a tax windfall by virtue of his employment . . . [t]here

was also no intent, per the offer letter or otherwise, for ASP to pay all of Shah’s taxes.”). In

his response opposing the Motion to Strike (Doc. 101), Mr. Shah argues strenuously that the

controlling authority permits ex parte contact with former employees, that the declarations

were not untimely, and that the declarations contain admissible testimony based on the

witnesses’ personal knowledge. Doc. 101. Defendants filed a reply (Doc. 105), and the matter

is now fully briefed and ripe for decision.

II. LAW AND ANALYSIS

The Court will address in turn each of the three arguments Defendants have advanced

in support of the Motion to Strike (Doc. 94) the declarations of Mr. Ivankovich (Doc. 75) and

Ms. Scott (Doc. 76) to wit: (1) Plaintiff’s counsel engaged in improper ex parte contact with

former employees without following required consent procedures; (2) Mr. Shah’s counsel

untimely disclosed the declarations outside of the agreed upon Rule 26(f) discovery period;

and (3) Ms. Scott and Mr. Ivankovich’s declarations include inadmissible hearsay and are

irrelevant.

1. Ex Parte Contact with Former Employees

Initially, Defendants contend that Ms. Scott and Mr. Ivankovich’s declarations should

be stricken on the basis that Plaintiff’s counsel failed to comply with this District’s informed

consent procedures when wanting to obtain declarations from the company’s two former

high-level employees. Doc. 94, PageID 3043. It is important to note at the outset that both

Ms. Scott and Mr. Ivankovich are former, not current employees of Defendants. In

Defendants’ view, however, Mr. Shah’s counsel still improperly conducted ex parte interviews

with them by failing to provide notice to Defendants about the interviews and by not warning

Ms. Scott and Mr. Ivankovich against disclosing privileged information during the interviews.

Id. at PageID 3043–44.

To support this contention, Defendants rely principally upon a magistrate judge’s

decision in a case called Summers v. Rockwell Int’l Corp., No. C292301, 1993 WL 1480622, at

*4 (S.D. Ohio Apr. 9, 1993). In Summers, an environmental contamination case, the plaintiffs

“raised the issue of their ability to communicate directly with current or former employees of

[the] defendant” who may have had information pertaining to hazardous substances being

released from the company’s plant. Id. at *1. When confronted with similar facts as those

presented here, the magistrate judge presiding over the Summers case imposed specific

procedures upon the attorneys involved in that litigation in order to assist the parties during

discovery when conducting ex parte interviews with the company’s former employees. Id. at

*4–5. Those procedures required, among other things, that counsel seeking the deposition

provide the former employee with a one-page written notice advising them that litigation was

pending, that the interview was voluntary, that the defendant company was represented by

counsel, that the former employee could contact defendant’s counsel for further information

or retain separate counsel, and that the deponents could not reveal privileged attorney client

communications. Id.

Defendants argue strenuously that these requirements are the established procedures

of the Southern District of Ohio based upon the magistrate judge’s decision in Summers. Doc.

94, PageID 3043. They, however, are not. Summers makes clear that the notice requirements

used in that matter were case-specific guidelines proposed by the magistrate judge which the

parties in that litigation specifically agreed to follow. Summers, 1993 WL 1480622, at *3

(explaining that the guidelines implemented “were suggested to plaintiffs in th[e] case, and

they . . . agreed to them”). At best, Summers offers guidance for courts grappling with similar

discovery issues, but in no way establishes a blanket policy, rule, or procedure of this Court

governing all cases when a party opponent of a company seeks to engage in ex parte

communications with a former employee of the company.

Rather, courts in this District look to the Ohio Rules of Professional Conduct to

address matters concerning attorney communications with former employees. See Davis v.

Washington Cnty. Open Door Home, No. C-2-98-636, 2000 WL 1457004, at *5 (S.D. Ohio Sept.

21, 2000); United States v. McCurdy, No. 1:24-cr-184-1, 2026 WL 352868, at *2 (N.D. Ohio

Feb. 9, 2026) (“There are no established federal rules of professional conduct . . . Instead,

federal courts look to state rules of professional conduct.”); Johnson v. Ohio Dep’t of Youth

Servs., 231 F. Supp. 2d 690, 692 (N.D. Ohio 2002) (citation omitted); United States v. Beiersdorf-

Jobst, Inc., 980 F. Supp. 257, 261 (N.D. Ohio 1997); see also S.D. Ohio Civ. R. IV(B)4.

As this Court reads Rule 4.2 of the Ohio Rules of Professional Conduct5, the one

applicable to these proceedings, it prohibits a lawyer, when representing a client, from

communicating about the subject matter of the representation with “a person the lawyer knows

to be represented by another lawyer in the matter” without that lawyer’s consent. Prof. Cond.

Rule 4.2. By its terms, Rule 4.2 protects represented parties. On its face, the Rule does not bar

counsel from speaking with unrepresented former employees of a company. This interpretation

4 The local rule, S.D. Ohio Civ. R. IV(B), states, in relevant part: “The Rules of Professional Conduct adopted

by this court are the Rules of Professional Conduct adopted by the highest court of the state in which this

Court sits, as amended from time to time by that state court, except as otherwise provided by specific Rule

of this Court after consideration of comments by representatives or bar associations within the state.” S.D.

Ohio Civ. R. IV(B). Because this Court sits in Ohio, it applies the Ohio Rules of Professional Conduct in this

Opinion and Order.

5 See Rule 4.2, Ohio Rules of Professional Conduct (eff. Feb. 1, 2007, as amended eff. Jan. 1, 2026).

is consistent with the views expressed in the advisory opinions of the Ohio Board of

Professional Conduct. Sup. Ct. of Ohio Bd. of Prof’l Conduct, Op. 2016-5 (Aug. 5, 2016).

In Advisory Opinion 2016-5, the Board stated the following about contact with a

former employee of a corporation by attorneys representing a party suing that corporation:

Once a management employee has left the corporation, he or she no longer supervises,

directs, or consults with the corporation’s lawyer and cannot obligate the organization.

Former employees cannot bind the organization and their statements cannot be

introduced as admissions of the organization. Geoffrey Hazard, Jr. & W. William

Hodes, The Law of Lawyering, Sec. 38.7 (3d ed. Supp. 2011). Similarly, under the law

of agency, the former management employee is no longer acting on behalf of the

organization. See Mich. Op. RI-360 (2013). Consequently, a lawyer may communicate on

the subject matter of the representation with any former and unrepresented corporate employees,

including those in management, without notification or consent of the corporate lawyer.

Doc. 100, PageID 3165–66 (emphasis added) (“This conclusion is supported by the

distinction between current and former employees . . . thus clarifying that a lawyer’s

communication is permitted with former employees, even those whose prior act or omissions

may eventually be imputed to the corporation.”). The Board further explained that, because

former employees “cannot bind or obligate the organization” and because “their statements

cannot be introduced as admissions of the organization . . . communication with a former

employee . . . is permissible under Prof. Cond. R. 4.2.” Id. In Opinion 2016-5, the Board

simply reiterated the same conclusion it reached in its 1996 opinion on this same issue. See

Sup. Ct. of Ohio Bd. of Prof’l Conduct, Op. 1996-1 (Feb. 2, 1996) (stating that “an attorney

may communicate on the subject matter of the representation with former employees of the

corporation without notification or consent of corporate counsel”).

Federal courts in Ohio have routinely applied the same principles with respect to an

attorney’s ability to interview or obtain information from former employees of a corporation

without first having to notify or receive the consent of corporate counsel. In Johnson, for

example, the court rejected the same argument Defendants advance here when denying a

motion to strike an affidavit from the defendant’s former employee, by explaining that “ex

parte contact with a former employee is not . . . prohibited.” Johnson, 231 F. Supp. 2d at 692.

In reaching this decision, the Johnson court relied on Beiersdorf-Jobst, Inc., 980 F. Supp. at 261–

62, which reasoned that “the underlying rationale behind the rule, i.e., maintaining the

integrity of the attorney-client relationship, is not undermined by allowing uncounseled

interviews with former employees who have no existing relationship with, and therefore

cannot bind, a represented corporation.”

As the court in Beiersdorf-Jobst put it, “the proscription against communications with

represented parties does not extend to former employees of a represented corporation.” Id. at

261. Here, it is undisputed that Mr. Ivankovich and Ms. Scott are former ASP employees,

albeit managers, with no existing relationship with ASP (or any of the other Defendants) and

thus no ability to bind Defendants. See Doc. 94, PageID 3043 (“Both declarations were taken

from former executive level managers.”) (emphasis added); see also Doc. 100, PageID 3165

(“[A] lawyer may communicate on the subject matter of the representation with any former

and unrepresented corporate employees, including those in management, without notification or

consent of the corporate lawyer.”) (emphasis added).

Defendants separately assert that even though Ms. Scott and Mr. Ivankovich are

Defendants’ former employees, Mr. Shah’s counsel still failed to warn them not to divulge

any privileged communications prior to receiving their declarations. Ivankovich Decl., Doc.

94-2, ¶ 6 (“I was not informed of the specific details of the claims Shah was making against

ASP . . . and that I should not reveal any privileged information.”); Ryan Decl. Ex. 1, Doc.

94-1, ¶ 5 (“Counsel for Defendants inquired if either Ivankovich or Aliza Scott had been

informed in writing that no attorney-client privileged information should be shared. Plaintiff’s

counsel indicated that they had not.”). According to Defendants, absent the warning, the

declarations should be deemed inadmissible.

Having already determined that this Court has no blanket policy or rule governing ex

parte communications of former employees of a corporation by attorneys of a party opponent,

the Court looks again to the Ohio Rules of Professional Conduct for guidance. Defendants

argue correctly that Opinion 2016-5 directs counsel to “immediately inform [a] former

employee not to divulge any privileged communications” when conducting ex parte

interviews. Doc. 100, PageID 3166. Importantly, however, Defendants do not identify any

specific statement in either declaration in which either Mr. Ivankovich or Ms. Scott revealed

any privileged attorney-client communications during the interviews. Instead, Defendants

assert only that its two former high-level employees had access to attorney-client privileged

information. Ryan Decl. Ex. 1, Doc. 94-1, ¶ 4.

The Court agrees that Plaintiff’s counsel should have followed best practices and

should have expressly cautioned Ms. Scott and Mr. Ivankovich not to reveal privileged

information before interviewing them. That omission, however, does not justify striking both

declarations in their entirety, particularly since Defendants cannot show that any privileged

information was actually divulged. Indeed, a “blanket assertion of . . . privilege is insufficient.”

Meyer v. Bank of Am., N.A., No. 2:18-cv-218, 2018 WL 6436268, at *3 (S.D. Ohio Dec. 7, 2018)

(citation omitted). It should be noted here too that after learning of Mr. Ivankovich’s first

declaration, Defendants separately interviewed him and obtained a second declaration from

him (Ivankovich Decl., Doc. 94-2). Yet Defendants still have not identified any privileged

communication that may have been disclosed by either declarant, Mr. Ivankovich or Ms.

Scott for that matter. See Johnson, 231 F. Supp. 2d at 693 (rejecting motion to strike where

defendants had not even “suggested that the . . . affidavit reference[d] information covered

by that privilege”).

Under the circumstances, we believe Ms. Scott and Mr. Ivankovich’s declarations are

usable. The result we reach here obtains from the well-established principle that the

attorney-client privilege must be construed narrowly because it restricts access to otherwise

relevant evidence. See United States v. Collis, 128 F.3d 313, 320 (6th Cir. 1997) (“[T]he

[attorney-client] privilege is narrowly construed because it reduces the amount of information

discoverable during the course of a lawsuit”); In re Columbia/HCA Healthcare Corp. Billing

Practices Litig., 293 F.3d 289, 294 (6th Cir. 2002). Moreover, to the extent that there may be

legitimate concerns about unauthorized disclosures of confidential attorney-client

communications by counsel, these can be readily addressed by Defendants when objecting to

specific questions or portions of testimony. Indeed, as has been noted, courts have a duty to

consider only admissible evidence and to disregard any material that could not be admitted

at trial. See Foster v. Americare Healthcare Servs., Inc., 150 F. Supp. 3d 868, 870 (S.D. Ohio 2015).

All in all, the circumstances presented in this case militate against the Court invoking

the drastic measure of striking wholesale the two declarations of former management

employees who have been shown to otherwise possess highly relevant unprivileged testimony.

Accordingly, the Court finds that Plaintiff’s ex parte interviews with Ms. Scott and Mr.

Ivankovich did not result in the disclosure of any privileged communications, such that it

would provide any bases for striking their declarations in their entirety.

2. Timeliness of Disclosure of Witness Testimony

Defendants next seek to strike the declarations of Mr. Ivankovich and Ms. Scott by

arguing that Mr. Shah’s attorneys failed to timely disclose the subject matter of the

information they possessed that would be used to support Plaintiff’s claims in his Rule

26(a)(1) initial disclosures and in his subsequent interrogatory responses. Doc. 94, PageID

3045; Doc. 105, PageID 3246–47. Mr. Shah, on the other hand, states that he identified both

witnesses by name in multiple discovery documents, indicated that they possessed

information supporting his claims, and identified them “well in advance of the discovery

cutoff.” Doc. 101, PageID 3176–79 (stating that “Defendants knew for over a year and three

months before the discovery deadline that Mr. Ivankovich and Ms. Scott possessed

information relevant to Plaintiff’s claims, and that Plaintiff might use them as witnesses in the

case”).

Rule 26(a)(1)(A)(i) requires parties, such as Mr. Shah, to provide “the name and, if

known, the address and telephone number of each individual likely to have discoverable

information—along with the subjects of that information—that the disclosing party may use to

support its claims or defenses.” Fed. R. Civ. P. 26(a)(1)(A)(i) (emphasis added). In turn, Rule

37(c)(1) provides that if a party fails to provide such information or identify a witness as

required by Rule 26(a)6, “the party is not allowed to use that information or witness to supply

evidence on a motion, at a hearing, or at a trial,” that is, unless that party’s “failure was

substantially justified or is harmless.” Fed. R. Civ. P. 37(c)(1).

6 Rule 26(e) of the Federal Rules of Civil Procedure imposes a continuing duty on parties to supplement

disclosures “in a timely manner if the party learns that in some material respect the disclosure or response is

incomplete or incorrect, and if the additional or corrective information has not otherwise been made known

to the other parties during the discovery process or in writing; or . . . as ordered by the court.” See Fed. R.

Civ. P. 26(e).

The circumstances presented in this dispute closely resemble those resolved by the

Sixth Circuit in the Gipson v. Vought Aircraft Indus., Inc. decision. There, the plaintiff identified

the declarant by name in his initial disclosures as a person likely to have discoverable

information but provided little else about that witness’s specific knowledge. Later in the

proceedings, the plaintiff over the objection of the defendant in that case, sought to submit

the witness’s affidavit for the first time with his summary-judgment papers. Gipson v. Vought

Aircraft Indus., Inc., 387 F. App’x 548, 551–52 (6th Cir. 2010). The Sixth Circuit held that

merely listing the witness’s name, without fairly describing the subject matter of the person’s

knowledge, did not satisfy Rule 26(a)(1)(A)(i) and affirmed the district court’s decision to

strike portions of the affidavit. Id. at 554–55.

Mr. Shah’s conduct in this case follows a similar pattern as the plaintiff in Gipson. Here,

Mr. Shah in his initial disclosures, made on September 11, 2024 (Ds.’ Ex. 1, Doc. 105-1,

PageID 3253–54), identified both Ms. Scott and Mr. Ivankovich as individuals likely to have

discoverable information that he might use “to support his claims and defenses, including . .

. information regarding Defendants’ breaches of express and/or implied contracts . . . and the

resulting emotional distress and damages suffered by [Mr. Shah].” On September 16, 2024,

Mr. Shah again identified Ms. Scott and Mr. Ivankovich as individuals likely to have

discoverable information in Plaintiff’s Responses to Defendant Fortive Corporation’s First

Interrogatories & Requests for Production of Documents. Ds.’ Ex. 2, Doc. 105-2, PageID

3261. Further in the proceedings, on February 24, 2025, Mr. Shah also identified Ms. Scott

and Mr. Ivankovich as “lay witnesses who may testify at the trial.” Ds.’ Ex. 3, Doc. 105-3,

PageID 3281. As in Gipson, these disclosures clearly identified the witnesses by name and

indicated that they possessed relevant information but did not describe with any specificity

the knowledge or details generally that these potential witnesses retained to the degree that

Ms. Scott and Mr. Ivankovich would later testify to in their declarations. Gipson, 387 F. App’x

at 554–55.

Likewise, the timing of the declarations filed by Mr. Shah’s counsel mirrors Gipson.

Here, discovery closed on December 15, 2025. Notation Order, 10/3/2025. And counsel for

Mr. Shah obtained Mr. Ivankovich’s declaration on December 15, 2025, yet did not provide

it to Defendants until January 9, 2026, nearly three weeks later. Ivankovich Decl., Doc. 75,

PageID 983; Ds.’ Ex. 1, Doc. 94-1, PageID 3051. In the case of Ms. Scott, Mr. Shah’s

attorneys obtained her declaration on January 14, 2026, and provided it to Defendants on the

same day—nearly one month after the discovery period ended on December 15, 2025. Doc.

76, PageID 989; Ds.’ Ex. 1, Doc. 94-1, PageID 3053. Notably, also, Mr. Shah filed the two

declarations on the same day as the dispositive motion deadline on January 14, 2026.

Notation Order, 10/03/2025. Taken together, the record shows that although discovery

closed on December 15, 2025, Defendants did not receive both declarations—or learn,

partially, of the nature and scope of the witnesses’ anticipated testimony—until after the close

of discovery. In light of the factual similarities between this case and Gipson, the Court

concludes that Mr. Shah’s Rule 26(a) disclosures to Defendants were woefully inadequate

and violative of the principles established by the Circuit in that case. Though Mr. Shah

identified Ms. Scott and Mr. Ivankovich by name, he did not, during the discovery period,

fairly apprise Defendants of the specific subject matter of the testimony that would be the

focus of their statements presented in their declarations later.

With the missteps that occurred surrounding the timing of the disclosures being so

similar to Gipson, Defendants insist that Ms. Scott and Mr. Ivankovich’s declarations should

be stricken. However, exclusion of testimony proffered through declarations, under Rule

37(c)(1), is not automatic. As noted, Rule 37(c)(1) provides that if a party fails to provide such

information or identify a witness as required by Rule 26(a), “the party is not allowed to use

that information or witness to supply evidence on a motion, at a hearing, or at a trial,” unless

that party’s “failure was substantially justified or is harmless.” Fed. R. Civ. P. 37(c)(1). In

essence, the Rule establishes exclusion of evidence as the general rule but recognizes two

critical exceptions.

As an initial matter, the Court finds little support for any claim that can be made that

Mr. Shah’s failure to disclose information to Defendants regarding the subject matter of Ms.

Scott and Mr. Ivankovich’s declarations was substantially justified. More relevant to the

discussion here, though, is the determination of whether Mr. Shah’s late disclosure of the

subject matter of the declarations was harmless. To guide that determination, the Court finds

instructive the framework set out by the Sixth Circuit in Howe v. City of Akron, 801 F.3d 718,

747–48 (6th Cir. 2015) adopted from Russell v. Absolute Collection Servs., Inc., 763 F.3d 385,

396–97 (4th Cir. 2014). Under that framework, a trial court assessing whether nondisclosure

by a party was harmless may consider a number of factors, including: “(1) the surprise to the

party against whom the evidence would be offered; (2) the ability of that party to cure the

surprise; (3) the extent to which allowing the evidence would disrupt the trial; (4) the

importance of the evidence; and (5) the nondisclosing party’s explanation for its failure to

disclose the evidence.” Howe, 801 F.3d at 748 (quoting Russell, 763 F.3d at 396–97).

Applying Howe to the facts in this case, the Court first considers the surprise factor.

Defendants cannot plausibly claim they were unaware of Mr. Ivankovich and Ms. Scott or of

the potential relevance of the evidence they possessed in this case. Long before the close of

discovery, Mr. Shah’s initial disclosures, interrogatory responses, and witness disclosures

identified both individuals as persons with information that Mr. Shah might use to support

his claims in the case. Ds.’ Exs. 1–3, Docs. 105-1, 105-2, 105-3. Though those disclosures did

not recite the precise contents of the later declarations, and there was therefore some element

of surprise when the declarations were served, Mr. Shah still put Defendants on notice that

he regarded Mr. Ivankovich and Ms. Scott as key witnesses on a central issue: whether

Defendants agreed to pay his Singapore taxes. Given their former roles with the company,

Defendants must not have been paying attention as this case proceeded or are now

sandbagging by feigning ignorance of why Plaintiff listed Mr. Ivankovich and Ms. Scott as

witnesses. Neither explanation is credible in light of how contentious this litigation has been

on both sides.

Second, as to Defendants’ ability to cure any surprise, the timing of Mr. Shah’s

production did not afford Defendants a realistic opportunity to pursue additional discovery

before the dispositive-motion deadline of January 14, 2026. Notation Order, 10/3/2025. Mr.

Shah produced Mr. Ivankovich’s declaration on January 9, 2026, and Ms. Scott’s declaration

on January 14, 2026, both of which events occurred after the December 15, 2025, discovery

cut off. Ds.’ Ex. 1, Doc. 94-1, PageID 3051–54. In practical terms, Defendants had only a few

days’ notice of the substance of Mr. Ivankovich’s declaration before the January 14, 2026,

dispositive-motion deadline, and essentially no lead time on Ms. Scott’s declaration. The

Court cannot minimize that concern. Id. at PageID 3052 (“This improper disclosure also

interferes with our preparing our summary judgment motion . . . due this week.”).

At the same time, however, the record also shows that Defendants were able to

respond to the substance of the two declarations in meaningful ways. For instance, after

receiving Mr. Ivankovich’s initial declaration (Ivankovich Decl., Doc. 75), Defendants

themselves contacted Mr. Ivankovich, obtained a second declaration (Ivankovich Decl., Ds.’

Ex. 2, Doc. 94-2) and filed that declaration on the docket in support of their Motion to Strike

(Doc. 94). In short, both sides have demonstrated an ability to supplement the

summary-judgment record with evidence obtained or produced after the close of formal

discovery, which severely undercuts Defendants’ claim of prejudice and shows that any initial

surprise was mitigated by Defendants’ ability to address both declarations in motion practice

and to also develop rebuttal evidence from Mr. Ivankovich himself.

Third, as for the potential for disruption, the Court is unconvinced that allowing the

declarations now being proffered by Mr. Shah will have anything more than a modest impact

on the proceedings or case schedule. No trial date has been set, nor have Defendants shown

that considering this evidence will require any change to existing deadlines. Fourth, the

importance of the evidence weighs heavily against exclusion. The declarations from Mr.

Ivankovich and Ms. Scott offer first-hand accounts from two key former senior executives of

Defendants who had a hand in negotiating Mr. Shah’s employment contract relevant to the

alleged tax arrangement the company made with him. Ivankovich Decl., Doc. 75, ¶¶ 6, 11;

Scott Decl., Doc. 76, ¶¶ 3, 5 (“It was further agreed that, as part of Nilesh's compensation,

ASP would pay the income taxes Nilesh would owe to Singapore, while Nilesh would be

responsible for paying the income taxes he would owe to the U.S.”). Their testimony goes

directly to the purpose and meaning of the contractual language at the heart of the dispute in

this case. See Am. Compl., Doc. 37. Thus, striking these declarations from consideration

would remove highly probative evidence and certainly hinder, if not disrupt, the search for

truth.

Finally, under the fifth prong of the Howe factors, the Court finds that Mr. Shah’s

explanation for not disclosing the evidence to Defendants is completely underwhelming to

put it kindly. There are few, if any, strong justifications for Mr. Shah’s counsel’s conduct in

this regard, knowing what he knew about the subject matter of the two witnesses’ proposed

testimony. Further, he obtained Mr. Ivankovich’s declaration on the last day of discovery,

December 15, 2025, and delayed producing it to Defendants for several weeks until January

9, 2026. Decl., Doc. 75, PageID 983; Ds.’ Ex. 1, Doc. 94-1, PageID 3051. And in the case of

Ms. Scott, he obtained her declaration and filed it on the docket on January 14, 2026—well

after the December 15, 2025, discovery deadline. Scott Decl., Doc. 76, PageID 989; Ds.’ Ex.

1, Doc. 94-1, PageID 3053.

However, the delay here is measured in weeks rather than months, and as noted,

Defendants were able to respond substantively to the evidence put forth in the first declaration

by obtaining a second declaration from Mr. Ivankovich (Ivankovich Decl., Ex. 2, Doc. 94-2)

after the discovery deadline, in effect mollifying the potential damage to Defendants’ case

caused by his earlier testimony. On balance, this imperfect explanation does not tip the scales

in favor of the Court excluding the declarations from Ms. Scott and Mr. Ivankovich that

Plaintiff is relying on to make his case. Considering all of the Howe factors together, the Court

concludes that any Rule 26 violations Plaintiff may have committed relating to the Ivankovich

and Scott declarations were harmless within the meaning of Rule 37(c)(1).

3. Hearsay and Relevance

Finally, Defendants argue that Ms. Scott and Mr. Ivankovich’s declarations are

hearsay and irrelevant because neither declarant had the authority to speak on behalf of

Defendants’ legal department. Doc. 94, PageID 3045; Doc. 105, PageID 3248. Under

Evidence Rule 801, “[h]earsay is when a party offers an out-of-court statement for its truth.”

Garrett v. Sw. Med. Clinic, 631 F. App’x 351, 358 (6th Cir. 2015). To be specific, the term

“hearsay” means that “(1) the declarant does not make [the statement] while testifying at the

current trial or hearing; and (2) a party offers [the statement] in evidence to prove the truth of

the matter asserted in the statement.” See Fed. R. Evid. 801(c). To support their contention,

Defendants rely on Garrett and state that Mr. Ivankovich “has no idea who even drafted the

offer letters” at issue in the case. Doc. 94, PageID 3045.

Defendants’ reliance on Garrett is misplaced, however. Garrett involved a plaintiff’s

attempt to introduce, through her own testimony—the statements supposedly made by a

coworker concerning what a supervisor allegedly said—a double hearsay problem. Garrett,

631 F. App’x at 357–58. In that situation, the plaintiff’s coworker also had no authority to

relay management statements on the employer’s behalf. Id. Here, by contrast, the Court is

presented with sworn declarations from two former high-level employees, who are themselves

recounting their own firsthand observations of their participation in Mr. Shah’s hiring and

their discussions with him pertaining to his Singapore tax obligations. Ivankovich Decl., Doc.

75, ¶¶ 6, 11; Scott Decl., Doc. 76, ¶ 3. As noted, the matters set forth in the declarations of

both these former employees of ASP contain relevant and important information that strikes

at the heart of the dispute in this case. Defendants’ reliance on Garrett is misplaced given that

that case does not stand for the proposition that such firsthand testimony grounded in

personal knowledge is inadmissible. Indeed, Defendants’ decision to pursue and then file their

own declaration containing additional testimony from Mr. Ivankovich is difficult to reconcile

with their assertion that only the portion of his statements Plaintiff seeks to elicit—rather than

all of his statements, including those favorable to Defendants—is inadmissible hearsay. See

Doc. 105, PageID 3248. In any regard, as earlier noted by this Court, any statements that

constitute inadmissible hearsay, when these proceedings reach the summary judgment stage,

will simply be disregarded. See Berry v. Frank’s Auto Body Carstar, Inc., 817 F. Supp. 2d 1037,

1041 (S.D. Ohio 2011), aff’d, 495 F. App’x 623 (6th Cir. 2012); Ulmer v. Dana Corp., 200 F.

Supp. 2d 804, 812 (N.D. Ohio 2002), aff’d, 115 F. App’x 787 (6th Cir. 2004) (declining to

strike affidavits where the objecting party “ma[de] generalized allegations” about lack of

personal knowledge and admissibility).

For similar reasons the Court is unpersuaded by Defendants’ relevance objections.

“Evidence is relevant if: (a) it has any tendency to make a fact more or less probable than it

would be without the evidence; and (b) the fact is of consequence in determining the action.”

See Fed. R. Evid. 401. To reiterate, the parties’ understanding surrounding who would be

responsible for paying the disputed Singapore taxes related to Mr. Shah’s employment in that

country is central to this litigation. See Am. Compl., Doc. 37. Defendants cannot plausibly

contend that the testimony of two of the individuals who negotiated the most salient terms

contained in that agreement is irrelevant. The record before the Court belies Defendants’

argument. On the one hand, Defendants assert that the two declarations are irrelevant but on

the other hand they still chose to obtain and file their own declaration from Mr. Ivankovich,

effectively conceding that his testimony is probative of the issues in this case. Ivankovich

Decl., Ds.’ Ex. 2, Doc. 94-2. The same logic applies to Ms. Scott’s declaration, even though

it does not appear that Defendants sought to interview her. Accordingly, Defendants’ hearsay

and relevance objections do not provide a basis for exclusion of Ms. Scott and Mr.

Ivankovich’s declarations.

I. CONCLUSION

For all the reasons stated, Defendants’ Motion to Strike (Doc. 94) is DENIED.

IT IS SO ORDERED.

June 17, 2026

effely @. Popkins

United States District Judge

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