Opposition Brief — Vesuvius USA Corporation, et al., Petitioners v. Royston Phillips

Supreme Court briefApr 13, 2021

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No. 20-1275

IN THE

SUPREME COURT OF THE UNITED STATES

__________________

VESUVIUS USA CORPORATION AND CHRISTOPHER YOUNG,

Petitioners,

ROYSTON PHILLIPS,

Respondent.

__________________

On Petition for a Writ of Certiorari to the Court of

Appeals of Ohio, Eighth Appellate District

__________________

BRIEF IN OPPOSITION TO PETITION FOR A WRIT OF CERTIORARI

__________________

ANN-MARIE AHERN

JOHN E. MORAN -- Counsel of Record

McCARTHY, LEBIT, CRYSTAL

& LIFFMAN CO., L.P.A.

101 West Prospect Avenue

1800 Midland Building

Cleveland, Ohio 44115

Tele No. (216) 696-1422

Fax No. (216) 696-1210

Email: ama@mccarthylebit.com

jem@mccarthylebit.com

Attorneys for Respondent

COUNTERSTATEMENT OF THE QUESTION PRESENTED

Should the Court abandon the long-established precedent set forth in Société

Nationale Industrielle Aérospatiale v. United States Dist. Court for Southern Dist. of

Iowa, 482 U.S. 522, 107 S.Ct. 2542, 96 L.Ed.2d 461 (1987) and instead mandate that

a new regulation adopted by the European Union block a civil litigant’s access to

otherwise discoverable information?

TABLE OF CONTENTS

COUNTERSTATMENT OF THE QUESTION PRESENTED .................................... ii

TABLE OF CONTENTS ............................................................................................... iii

TABLE OF AUTHORITIES ......................................................................................... iv

COUNTERSTATEMENT OF THE PROVISIONS INVOLVED ................................. 1

COUNTERSTATEMENT OF THE CASE .................................................................... 1

REASONS FOR DENYING THE PETITION FOR CERTIORARI ............................. 3

II.

III.

This Case Is Not the Proper Vehicle for the Court to Reassess the

Well Established Test Set Forth in Aérospatiale .............................................. 5

Petitioners Have Waived the Core Arguments Presented to the

Court ......................................................................................................... 5

There Is No Lower Court Determination That the GDPR Applies to

the Information at Issue .......................................................................... 7

Petitioners’ Question Is Not Important Enough to Merit Resolution by

This Court............................................................................................................ 8

The Court of Appeals Did Not Decide an Important Question Of

Unsettled Federal Law............................................................................. 8

There Is No Circuit Split and The Court of Appeal’s Decision Did

Not Depart from the Accepted and Usual Course of Proceedings .......... 9

No Policy Reasons Exist for The Court to Consider this Case ............. 11

Respondent Will Prevail on The Merits of this Case ....................................... 12

Petitioner Cannot Show That the GDPR Applies ................................. 12

The Appellate Court’s Application of Aérospatiale Was Correct ......... 13

CONCLUSION............................................................................................................. 17

iii

TABLE OF AUTHORITIES

Animal Sci. Prods. v. Hebei Welcome Pharm. Co., 585 U.S. ___, 138 S.Ct.

1865 (2018) ..................................................................................................................... 9

Dexia Credit Local v. Rogan, 231 F.R.D. 538 (N.D.Ill. 2004) ...................................... 8

Finjan, Inc. v. Zscaler, Inc., N.D.Cal. No. 17-cv-06946, 2019 U.S. Dist. LEXIS

24570 (Feb. 14, 2019) .................................................................................................... 9

Laydon v. Mizuho Bank, Ltd., 183 F.Supp.3d 409 (S.D.N.Y.2016) ......................... 8, 9

Phoenix Process Equip. Co. v. Capital Equip. & Trading Corp., W.D.Ky. No.

16CV-00024, 2019 U.S. Dist. LEXIS 44390 (Mar. 18, 2019)....................................... 9

Republic of Arg. v. NML Capital, Ltd., 573 U.S. 134 (2014) ........................................ 9

Société Nationale Industrielle Aérospatiale v. United States Dist. Court for

Southern Dist. of Iowa, 482 U.S. 522 (1987)............................................. 3-9, 11, 13-16

Rules, Statutes and Other Authorities:

EDPB Guidelines 2/2018 on derogations of Article 49 under Regulation

2016/679, adopted 25 May 2018, 2.5 ...................................................................... 12-13

Federal Rules of Civil Procedure................................................................................. 11

General Data Protection Regulation, https://eurlex.europa.eu/legalcontent/EN/TXT/PDF/?uri=CELEX:32016R0679 ....... 1, 4-13,16-17

General Data Protection Regulation, Article 2, Section 1 ......................................... 12

General Data Protection Regulation (2016), Article 6, Section 1(f) ........................... 13

General Data Protection Regulation (2016), Article 49, Section 1(e) ................... 12-13

Knapp, Enforcement of US Electronic Discovery Law Against Foreign

Companies: Should US Courts Give Effect to the EU Data Protection

Directive?, 10 Rich.J.Global L.& Bus. 111 (2010) ................................................. 10-11

Ohio Civil Rights Act, R.C. §4112.01 ............................................................................ 2

Ohio Civ. R. 26 .............................................................................................. 1, 14-15, 17

Restatement of the Law 3d, Foreign Relations Law, §442(1)(c) ........................... 13-14

COUNTERSTATEMENT OF THE PROVISIONS INVOLVED

Petitioners’ appeal implicates Ohio Rule of Civil Procedure 26 and the

European Union’s General Data Protection Regulation. Petitioners never mentioned

the Convention on the Taking of Evidence Abroad in Civil or Commercial Matters

(the “Hague Convention”) to the trial court and thus waived any reliance thereon.

COUNTERSTATEMENT OF THE CASE

This case concerns claims of age discrimination and retaliation brought by

Respondent, Royston Phillips (“Respondent”), after the termination of his stellar fourdecade career with Vesuvius USA Corporation (“Vesuvius”) and its predecessors.

From 2014 to 2016, Respondent worked for Vesuvius as part of a three-year

assignment in China. As he neared the conclusion of this overseas assignment,

Respondent expressed interest in two available positions, but was told that he was

not a suitable candidate for either due to his age. As a result, Respondent raised

concerns of age discrimination directly to human resources representative

Christopher Young (“Young,” together with Vesuvius, the “Petitioners”), before any

severance was offered to him or any exit was proposed.

Shortly after Respondent made his complaint, however, Petitioners

approached Respondent, in March 2017, to advise him of their intent to push him into

retirement and offer him severance terms. Respondent rejected Petitioner’s exit

proposal, reemphasized his age discrimination complaints, and continued his

employment. Petitioners then began creating self-serving and secretive internal

emails, without including Respondent, to suggest that Respondent somehow “lacked

motivation.” Petitioners further retaliated against Respondent by (i) cabining him

into a newly-formed, fake position that lacked a job description, then (ii) terminating

his employment involuntarily, and (iii) dramatically reducing Respondent’s

severance terms to punish his previously-raised age discrimination complaints.

Respondent filed his original Complaint against Petitioners on September 28,

2018. On July 29, 2019, Respondent was granted leave to add two (2) additional

counts based on newly-discovered information. As a result, Respondent’s current

complaint alleges seven (7) counts, consisting of claims of age discrimination,

retaliation, and aiding-and-abetting discrimination and retaliation liability under the

Ohio Civil Rights Act, Ohio Rev. Code §4112.01 et seq.

On December 18, 2018, Respondent served Petitioners with his First Set of

Interrogatories, Requests for Production of Documents, and Requests for Admissions.

Those requests sought, inter alia, the location of individuals with discoverable

knowledge and the personnel records of seven (7) individuals relevant to

Respondent’s claims.1

Petitioners refused to provide the location of individuals with discoverable

knowledge and refused to provide the requested personnel records. On May 16, 2019,

Respondent filed a Motion to Compel Discovery seeking, inter alia, the abovedescribed items. Respondent’s Appendix, hereinafter “Resp. App.,” 1a-25a. Contrary

to the Petition for Certiorari, Respondent has never taken the position that the

One of the personnel files has since been produced by Petitioners.

relevant personnel records are in Europe. Instead, Respondent has actively, clearly,

and consistently disputed that issue at the trial court and beyond. Resp. App. 22a.

Conversely, and despite heavily relying on it before this Court, Petitioners

never objected on the basis of compliance with the Hague Convention at the trial

court level. Resp. App. 70a-77a.

On July 29, 2019, the trial court granted Respondent’s Motion to Compel in its

entirety. Instead of complying with the trial court’s order and producing the location

of individuals with knowledge and relevant personnel records, however, Petitioners

filed an interlocutory appeal with the Court of Appeals of Ohio, Eighth Appellate

District.

In its June 11, 2020 opinion, the court of appeals affirmed in part, modified the

trial court’s motion to compel, and remanded the matter for the trial court to conduct

an in camera review of the personnel records to protect against the disclosure of

irrelevant information. In reaching this decision, the court of appeals applied the

balancing test enunciated by this Court in Société Nationale Industrielle

Aérospatiale v. United States Dist. Court for Southern Dist. of Iowa, 482 U.S. 522,

(1987).

Petitioners sought review in the Supreme Court of Ohio, but their request was

denied.

REASONS FOR DENYING THE PETITION FOR CERTIORARI

Petitioners are asking this Court to intercede in a standard discovery dispute

on a single-plaintiff age discrimination claim when (1) they did not preserve the

record below to adequately support the relief sought before this Court; and (2) wellestablished precedent adequately protects civil litigants, and there has been no

jurisdictional split or other unique justification to warrant abandoning that

entrenched law. These flaws expose that what Petitioners actually want this Court

to do is wade into a rather routine dispute over the scope of document production in

a case that involves a quite limited universe: the parties to this particular dispute.

The Court of Appeals of Ohio, Eighth Appellate District properly applied the

balancing test for resolving international cross-border discovery disputes, as was first

set forth by this Court over 30 years ago in Aérospatiale. Petitioners do not like how

the scales tipped, but this Court should not use its limited resources to get involved

in an interlocutory discovery dispute regarding six personnel files, only to secondguess a state trial court’s application of Aérospatiale.

Although Petitioners dangle the General Data Protection Regulation (“GDPR”)

as an opportunity for the Court to “reassess” Aérospatiale, this case is not the proper

vehicle for the Court to embark on such a journey because such “reassessment” of

Aérospatiale was never argued in the lower courts and it is not preserved for the

Court’s review. Resp. App. 70a-77a. Further, while the court of appeals found that

Respondent was entitled to the discovery sought even if it fell within GDPR’s purview,

the court expressly declined to determine whether the GDPR even covered the

information sought. Thus, the record is not fully developed to reach the merits of the

conclusion that Petitioners seek.

Further, the instant matter does not provide a novel legal question of

nationwide importance for this Court to consider. Over the past thirty years, state

and federal courts have routinely applied Aérospatiale – including application to

information covered by the GDPR.

Aérospatiale has thus provided consistent,

functional guidance enabling U.S. courts to address foreign statutes that conflict with

discovery sought under the applicable civil rules. There is no unique question, circuit

split, or anything for this Court to revisit or fix implicated in this appeal – other than

an unfavorable outcome for these Petitioners under the well-established legal test.

Petitioners’ real grievance is that they just do not agree with how Aérospatiale

applied in this case. While Petitioners contend that the court of appeals “misapplied”

Aérospatiale, a review of that court’s decision reflects that it carefully balanced the

applicable factors to the specific facts of this particular case. Thus, Petitioners simply

disagree with the outcome of this Court’s test as it was applied. That case-specific

disagreement, however, should not inform this Court’s wholesale abandonment of the

battle-tested Aérospatiale factors.

This Case Is Not the Proper Vehicle for the Court to Reassess the WellEstablished Test Set Forth in Aérospatiale.

Petitioners Have Waived the Core Arguments Presented to the Court.

This case is procedurally problematic for Petitioners because they never raised

to the lower courts the arguments that are central to their request for a Writ of

Certiorari.2 Specifically, Petitioners never argued that the Aérospatiale balancing

test is inapplicable to the GDPR, nor did they make any argument that this test

should be altered because of the GDPR. Resp. App. 74a-75a. Accordingly, Petitioners

have waived these issues and the Court should not review matters that the lower

courts did not have the opportunity to decide.

Moreover, at the trial court level, Petitioners never mentioned the Hague

Convention nor did they bother to argue any of the Aérospatiale factors. Resp. App.

70a-77a.

While they broadly referenced the existence of the GDPR, Petitioners

briefing to the trial court wholly neglected to cite to a section of the GDPR, or even

provide that state trial court with access to, or a copy of, this novel European

regulation. Now, in explaining their Question Presented, Petitioners assert that the

Aérospatiale factors should not apply to this appeal because the GDPR is not a

“blocking” statute, but rather a “privacy” regulation that deserves greater deference

and compliance with the Hague Convention. But given that Petitioners did not

mention the Hague Convention or Aérospatiale factors to the trial court, it should

come as no surprise that they certainly made no argument about any “blockingprivacy” dichotomy to the trial court.

It was only during Petitioners’ interlocutory appeal (following their retention

of new counsel) that they argued, for the first time, that the court of appeals must

balance the Aérospatiale factors because of the restrictions that the GDPR imposes.

Respondent does note that Petitioners made such arguments – for the first

time – to the Ohio Supreme Court in arguing that the court should assert jurisdiction.

The Ohio Supreme Court declined to assert jurisdiction over this matter.

Even then, Petitioners still did not raise to the appellate court the so-called “blockingprivacy” dichotomy that they now hype to this Court.3 Thus, Petitioners have failed

to preserve these issues for this Court to review.

There Is No Lower Court Determination That the GDPR Applies to the

Information at Issue.

In addition to Petitioners having already waived their central arguments, this

matter is also an inappropriate vehicle to address the implications of the GDPR

because, put simply, no lower court has even determined that the GDPR even applies

to the discovery sought in this case.

In finding that the Aérospatiale factors weighed in favor of production, the

appellate court qualified its opinion by stating that it was “[a]ssuming without

deciding” that the discovery fell within the GDPR’s protections.

Petitioners’

Appendix, hereinafter “Pet. App.,” 13a. The court noted that, where the alleged

obstacle to production of discovery is foreign law, the party resisting discovery has

the burden of proving what that law is and why it impedes production. Pet. App.,

12a.

Petitioners fell significantly short of their burden. Instead of Petitioners’

sweeping, generalized reference to a new European regulation, they were required to

Even in front of this Court, Petitioners belatedly assert arguments. For

example, Petitioners argue that the appellate court did not consider that Ohio has an

interest in “upholding the rule of law,” or that foreign countries might retaliate

against the United States for enforcing domestic discovery orders. But they did not

raise these issues with the lower courts. Petitioner’s Petition for Writ of Certiorari,

herein referred to as “Pet.,” 20. Petitioners are continually raising new arguments

without giving lower courts the opportunity to review them.

provide the trial court with information of sufficient particularity and specificity to

allow a determination whether the discovery sought was indeed prohibited by the

GDPR. Laydon v. Mizuho Bank, Ltd., 183 F.Supp.3d 409, 413 (S.D.N.Y. 2016); Dexia

Credit Local v. Rogan, 231 F.R.D. 538, 541 (N.D.Ill. 2004). Instead, Petitioners failed

to (i) adequately reference the GDPR or a section thereof to the trial court, (ii) mention

the Hague Convention, or (iii) introduce any evidence demonstrating that the

requested discovery was covered by the GDPR. Accordingly, Petitioner’s Question is

flawed because it never provided the lower courts with the necessary information to

answer it.

II.

Petitioners’ Question Is Not Important Enough to Merit Resolution by This

Court.

Although Petitioners attempt to present this case as addressing a “novel” issue

in light of the GDPR, this Court has already successfully instructed lower courts

regarding conflicts between foreign laws and domestic discovery rules.

Indeed,

nationwide, courts have applied Aérospatiale’s straightforward guidance for over

thirty years. The Aérospatiale standard should not be disturbed here, just because

Petitioners dislike the outcome it produces in this particular case.

The Court of Appeals Did Not Decide an Important Question of

Unsettled Federal Law.

The court of appeals did not decide an important question of unsettled federal

law. Instead, it simply applied this Court’s rule of law as set forth in Aérospatiale.

Indeed, by applying Aérospatiale to the specific facts of this case, the appellate court

preserved consistency and predictability throughout our court system. For the Court

to now review the court of appeals’ application of Aérospatiale would actually create

uncertainty in how courts should resolve such disputes, where none existed before.

There Is No Circuit Split and the Court of Appeal’s Decision Did Not

Depart from the Accepted and Usual Course of Proceedings.

Although Petitioners contend that there have been significant “developments”

following Aérospatiale, there is nothing new about foreign companies doing business

in the United States, or that the international nature of these business relationships

occasionally gives rise to discovery disputes. After all, this was the problem posed in

Aérospatiale over three decades ago. And Aérospatiale’s resolution of that issue was

not a one-time outlier, either. Instead, Aérospatiale has been cited with approval by

this Court as recently as 2018. Animal Sci. Prods. v. Hebei Welcome Pharm. Co., 585

U.S. ___, 138 S.Ct. 1865, 1868 (2018); see also Republic of Arg. v. NML Capital, Ltd.,

573 U.S. 134, 146 at n. 6, (2014).

As briefed to the courts below, jurisdictions

throughout the country have long relied on Aérospatiale’s five factors. See, e.g.,

Laydon, 183 F.Supp.3d at 419-20 (S.D.N.Y.2016); Phoenix Process Equip. Co. v.

Capital Equip. & Trading Corp., W.D.Ky. No. 16CV-00024, 2019 U.S. Dist. LEXIS

44390, *38 (Mar. 18, 2019); Finjan, Inc. v. Zscaler, Inc., N.D.Cal. No. 17-cv-06946,

2019 U.S. Dist. LEXIS 24570, *4 (Feb. 14, 2019) (all recently relying on Aérospatiale

factors). Aérospatiale thus represents the opposite of a jurisdictional split – courts

throughout the country have consistently depended upon it.

In arguing that there should be a departure from Aérospatiale’s wellestablished balancing test, Petitioners assert that courts “err when they unthinkingly

apply Aérospatiale to enforce American discovery obligations with respect to

documents or information protected by the GDPR” because the GDPR is a “privacy”

regulation. As a result, say Petitioners, the GDPR should be accorded more deference

than other foreign laws when used to block discovery. Pet., 16-17. Petitioners cite to

a 2014 Delaware decision and a 2013 New York decision to support the claim that the

GDPR is a “privacy” regulation, and not a “blocking” statute.

Those decisions,

however, do not involve the GDPR in any way and were issued several years before

the GDPR was even implemented.

And since Petitioners never mentioned a

“blocking-privacy” dichotomy to either the trial court or the court of appeals, they

have no basis to suggest that the lower courts did not afford the GDPR the proper

“weight” as a “privacy” regulation, as opposed to a “blocking” statute.

Additionally, even if this “blocking-privacy” dichotomy were to be formally

recognized by U.S. courts, it would be of limited value: any “blocking” statute could

be easily justified under the pretext of protecting “privacy,” and any “privacy”

regulation will have the same practical effect as a “blocking” statute.

Perhaps

recognizing this blurred line, Petitioners cite to a law review article in an attempt to

clarify the distinction. Knapp, Enforcement of US Electronic Discovery Law Against

Foreign Companies: Should US Courts Give Effect to the EU Data Protection

Directive?, 10 Rich.J.Global L.& Bus. 111 (2010). But Petitioners’ authority actually

undercuts their position. Specifically, the Knapp article recognizes that companies

can abuse foreign “privacy” statutes to frustrate discovery rules:

In the future, U.S. courts should not succumb to the temptation of

allowing companies to hide behind foreign data privacy statutes as a

means of escaping U.S. jurisdiction for the purposes of e-discovery.

Succumbing to this temptation would give those litigants willing to

abuse the situation a leg up in international disputes litigated in U.S.

courts. Furthermore, it would generally frustrate the policy choices

embodied by the Federal Rules of Civil Procedure, specifically that

access to more information, indeed all information that is at least

“reasonably calculated to lead to the discovery of admissible evidence”

encourages and promotes the discovery of truth through the adversarial

process.

Id. at 130-31. Thus, even Petitioners’ own authority rejects this greater deference

towards “privacy” laws, as opposed to “blocking” statutes.

This Court should not rely on Petitioners’ artificial distinction between

“blocking” and “privacy” regulations to disregard long-standing, settled U.S. Supreme

Court law, which has aided courts throughout the nation for over three decades.

No Policy Reasons Exist for the Court to Consider this Case.

Not only is there no legal reason for the Court to consider this case, there also

are no facts that would support Petitioners’ claim that this is a question of federal

law that needs to be settled by this Court. The GDPR is not a federal or global law;

it applies only to European countries. Should the Court create a new test specific to

the GDPR, such test would be completely irrelevant to statues enacted by other

countries or regions. Then, every time a foreign country adopts a law that potentially

impacts domestic discovery rules, lower courts will no longer have a singular

procedure to follow, but will wonder what, if any, standard applies. This confusion –

and likely increase of similar appeals to this Court – would be entirely avoided by

this Court simply maintaining the Aérospatiale factors.

III.

Respondent Will Prevail on the Merits of this Case.

Petitioner Cannot Show That the GDPR Applies.

Should the Court grant the Petition, Respondent will nevertheless win on the

merits. As mentioned above, the appellate court did not determine whether the

GDPR applies to Respondent’s requested discovery. It does not. First, the GDPR

only covers “the processing of personal data wholly or partly by automated means

and to the processing other than by automated means of personal data which form

part of a filing system or are intended to form part of a filing system.” General Data

Protection Regulation, Article 2, Section 1 (emphasis added). Respondent does not

seek personal data by “automated means.” Further, Petitioners have never shown

how Respondent’s discovery requests seek data that form part of a “filing system.”

Petitioners boldly claim that all of an employee’s personnel records fall under the

GDPR, but they have no authority or support for that sweeping statement. Pet., 4.

Indeed, even as this issue winds its way through the appellate court system,

Petitioners have still never proved that the six sets of personnel records even pertain

to citizens of the European Union. Neither Respondent nor this Court have any basis

to accept that the GDPR even applies.

Even if the GDPR did apply, Article 49 of that regulation permits the transfer

of data to a non-EU country when “necessary for the establishment, exercise or

defense of legal claims.” General Data Protection Regulation (2016), Article 49,

Section 1(e). The European Data Protection Board has stated that “data transfers for

the purpose of formal pre-trial discovery procedures in civil litigation may fall under

this [Article 49] derogation.” EDPB Guidelines 2/2018 on derogations of Article 49

under Regulation 2016/679, adopted 25 May 2018, 2.5, p. 11.4 Yet, without any

authority, Petitioners state that Article 49 does not allow U.S.-based discovery. Pet.,

4 at n. 6. They claim that the “transfer” of information would also need to be

permitted under the GDPR’s “processing” rules. But those “processing” rules permit

“processing” when “necessary for the purposes of the legitimate interests pursued by”

Petitioners.

General Data Protection Regulation (2016), Article 6, Section 1(f).

Surely Petitioners would agree that compliance with duly-served discovery requests,

or with a Court Order, is a “legitimate interest” justifying the “processing” (and then

the “transfer”) of the information.

Based on the foregoing, the appellate court’s decision was correct, if for no other

reason than Petitioners never met their threshold burden of demonstrating that the

GDPR applied to block, or would be violated by the production of, the discovery at

issue.

The Appellate Court’s Application of Aérospatiale Was Correct.

The appellate court determined that, if the GDPR applied, Aérospatiale’s five

factors of international comity would still favor production in this particular case.

The appellate court did not ignore Aérospatiale; on the contrary, it cited to

Aérospatiale in its analysis, noting its five comity factors as derived from the

Full text available at:

https://edpb.europa.eu/sites/edpb/files/files/file1/edpb_guidelines_2_2018_derogations_en.pd

Restatement of the Law 3d, Foreign Relations Law, §442(1)(c). Pet. App. 11a-12a. It

then applied those factors methodically as follows:

Factor One.

The appellate court first considered “the importance of the

documents or other information requested to the litigation.”

While Respondent

worked for Vesuvius USA Corporation and its predecessor entities for approximately

40 years, he sought only (a) six sets of personnel records, and (b) location information

for witnesses who played a role in (1) rejecting Respondent for two vacant positions

(because he was “not a young, high-potential candidate”), or (2) terminating his

lengthy career. As explained to the courts below, the records requested likely contain

information bearing on central aspects of Respondent’s civil rights action, like (a)

qualifications of the candidates seeking the vacant employment positions, (b)

Respondent’s performance, (c) the performance of the units in which Respondents

worked, (d) prior discrimination complaints against Respondents, (e) Petitioners’

management of Respondent’s termination, and (f) Petitioners’ knowledge of Ohio and

American antidiscrimination laws, and potentially other issues. While this is far

from a “broad fishing expedition,” the appellate court even took pains to further

protect Petitioners by sua sponte requiring that the trial court conduct an in camera

inspection of the files for otherwise sensitive data prior to production to Respondent.

Factor Two.

Given that Respondents sought such targeted information,

Petitioners do not take issue with the lower court’s determination of the second

Aérospatiale factor: the degree of specificity of the request. The court of appeals

determined that seeking location information of witnesses (a mandatory disclosure

under Ohio Civ.R. 26) and six personnel files was not overbroad.

Factor Three. The lower court found that the third factor – whether the

information originated in the United States – weighed in neither party’s favor

because it was unclear from the record.

Petitioners now fervently dispute this

conclusion, yet they have never provided any evidence to support their position – and

Respondent has never conceded it.

Factor Four. The fourth Aérospatiale factor is the “availability of alternative

means of securing the information.” The appellate court again found in favor of

Respondent on this factor, and did so correctly for at least two reasons.

First, as discussed above, Petitioners never raised compliance with the Hague

Convention until they filed their Merits Brief with the court of appeals. This was

over ten months after Respondent served his discovery requests, and after

Respondent had obtained an order compelling production from the trial court. At

that point, the appellate court correctly determined that Respondent should not have

to “start over” through the Hague Convention when Ohio discovery rules provided a

more efficient resolution, stating that “[b]ased on the record before this court,

requiring Phillips to undergo another avenue of seeking the requested documents,

which have been requested for over a year, is not a viable alternative to the liberal

discovery rules of Civ.R. 26.” Pet. App., 14a.

Second, Petitioners’ insistence on the Hague Convention procedures was

explicitly rejected by Aérospatiale.

More specifically, this Court has already

recognized that the Hague Convention is not the mandatory method of obtaining

discovery abroad, nor was it even the method of “first resort,” as this would “be

inconsistent with the overriding interest in the ‘just, speedy, and inexpensive

determination’ of litigation in our courts.” Aérospatiale, 482 U. S. at 542-43.

Factor Five. Petitioners reserve their most strenuous argument for

Aérospatiale’s fifth factor, claiming the appellate court failed to consider how

compliance with Respondent’s discovery requests “would undermine important

interests of the state where the information is located.” Petitioners never established

which countries were actually implicated, and they did not provide any evidence that

the employees at issue were employed by foreign affiliates. Noticeably absent from

their Petition is any explanation for how a court would conduct a targeted balance of

competing national interests without Petitioners demonstrating which countries

were at issue.

Despite this glaring weakness in Petitioners’ position, the appellate court still

considered foreign interests in its opinion by noting that “[t]he GDPR concerns the

data protection and privacy of all EU citizens and regulates the transfer of EU

citizens’ personal data outside of EU member states, such as the transfer to the U.S.”

Pet. App., 11a. Thus, the court of appeals not only assumed the GDPR applied, but

also explicitly noted the privacy interests that would be at stake.

Only after recognizing those interests did the appellate court further note that

Petitioners “failed to produce evidence that the disclosure of the personnel files would

lead to hardship or an enforcement action from an EU data protection supervisory

authority for breach of the GDPR.” Pet. App. 14a. Thus, the court determined that

there was no evidence to suggest that the European Union would actually enforce the

interests purportedly protected by the GDPR. The court contrasted this with Ohio’s

“clear public policy prohibiting age discrimination and unlawful retaliation” and that

Civ.R. 26 requires disclosure of location information.

Taken together, the appellate court properly balanced all of the respective

interests and determined they weighed in favor of disclosure. That decision should

not be disturbed.

CONCLUSION

For the foregoing reasons, the Court should deny the petition.

Respectfully submitted,

/s/John E. Moran

ANN-MARIE AHERN

JOHN E. MORAN -- Counsel of Record

McCARTHY, LEBIT, CRYSTAL

& LIFFMAN CO., L.P.A.

101 West Prospect Avenue

1800 Midland Building

Cleveland, Ohio 44115

Tele No. (216) 696-1422

Fax No. (216) 696-1210

Email: ama@mccarthylebit.com

jem@mccarthylebit.com

Attorneys for Respondent

APPENDIX

Table of Contents

Plaintiff’s Motion to Compel filed on May 16, 20191 ....................................... 1a

Defendant’s Brief in Opposition to Plaintiff’s Motion to Compel filed

on May 23, 2019 .............................................................................................. 70a

1 Respondent omits in this Appendix the Exhibit 5 that was originally attached to Plaintiff’s

Motion to Compel. That Exhibit consisted entirely of a voluminous compilation of

unpublished case law relied upon by Respondent at the trial court, and was attached in

accordance with Cuyahoga County Local Rule 11(H).

{01560626-1}

IN THE COURT OF COMMON PLEAS

CUYAHOGA COUNTY, OHIO

ROYSTON PHILLIPS,

Plaintiff,

)

CASE NO. CV-18-904574

JUDGE PETER J. CORRIGAN

)

VESUVIUS USA CORPORATION,

et al.,

Defendants.

)

PLAINTIFF'S MOTION TO COMPEL

DISCOVERY

Plaintiff, Royston Phillips, through counsel, and pursuant to Civ. R. 37 and Cuy. Co. Loe.

R. 11 (F), hereby moves for an Order compelling Defendants, Vesuvius USA Corporation

("Vesuvius") and Christopher Young ("Young," together with Vesuvius, the "Defendants"), to

provide complete answers and produce documents in response to Plaintiffs discovery requests.

In derogation of Civ. R. 26's liberal policy of discovery, Defendants have failed to produce

discovery that is critical to affording Plaintiff an adequate opportunity to present his claims.

Plaintiff has complied with his duty to attempt to resolve this matter without the Court's

intervention pursuant to Civ. R. 37(E) and Cuy. Co. Loe. R. ll(F). In addition to the extensive

correspondence attached to the Memorandum in Support hereof, Plaintiffs counsel has convened

or attempted to convene discovery telephone conferences with the Court on March 5, 2019, April

3, 2019, and April 11, 2019, and discussed Defendants' deficient discovery production during

the April 17, 2019 in-person conference with the Court. Nevertheless, Defendants have refused

to produce answers and documents that are patently discoverable. Thus, Plaintiff has been

forced to involve this Court again through this Motion, and hereby respectfully seeks an Order

compelling Defendants to abide by their obligations in discovery. A Memorandum in Support is

attached hereto and incorporated herein.

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Resp9c£¥lly su

itted,

(/,.//

, . arie Altern (#0070020)

a a@mccarthylebit, com

John E. Moran (#0087272)

jem@mccarthylebit.com

McCARTHY, LEBIT, CRYSTAL

& LIFFMAN CO., LP.A.

101 West Prospect Avenue

1800 Midland Building

Cleveland, Ohio 44115

(216) 696-1422

(216) 696-1210 (facsimile)

Attorneys for Plaintiff

CERTIFICATE OF SERVICE

I hereby certify that on this 16th day of May, 2019, the foregoing Plaintiffs Motion to

Compel and Memorandum in Support was filed electronically. Notice of this filing will be sent

to all parties by operation of the Court's electronic filing system.

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IN THE COURT OF COMMON PLEAS

CUYAHOGA COUNTY, OHIO

ROYSTON PHILLIPS,

Plaintiff,

VESUVIUS USA CORPORATION,

et al.,

Defendants.

)

CASE NO. CV-18-904574

JUDGE PETER J. CORRIGAN

MEMORANDUM IN SUPPORT OF

PLAINTIFF'S MOTION TO COMPEL

DISCOVERY

FACTUAL BACKGROUND

Plaintiff, Royston "Roy" Phillips ("Roy" or "Plaintiff'), has worked for Vesuvius and its

predecessor entities for approximately 40 years. Vesuvius is a metal flow engineering business

that provides engineering services to customers in the steel and foundry industries.

Working in the steel market for the past few decades, Roy has weathered many changes

m his industry.

.For example, in 2008, Roy's then-employer, Foseco Metallurgical Inc.

("Foseco"), was purchased by - and merged into - Vesuvius. Prior to that merger, Roy had

executed a document with Foseco that promised him certain terms of severance when and if his

employment terminated (the "Severance Contract"). 1 (See, Exhibit I to Amended Complaint.)

Without belaboring this Motion with a detailed discussion, Roy was an excellent

performer and regularly received positive performance reviews, raises, and promotions, all while

making countless sacrifices to advance Vesuvius' interests. For example, in early 2014, Roy

accepted a three-year position relocation to China as the company's Marketing & Technology

The Severance Contract promised that Roy would be given, inter alia, {a) 12 months of

severance, (b) a payment equal to the average of the bonuses received in the three years

preceding termination, (c) six months of healthcare continuation, and (d) a $15,000 payment for

the loss of a company car.

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Director. Roy skillfully executed this overseas commitment, and enjoyed such success that

Vesuvius asked him to continue his time in China beyond the original three-year period.

With his wife eager to return to the United States, Roy declined the proposal that he

remain in China.

Vesuvius management then suggested that Roy consider what position

openings he would want in the United States.

First, Roy selected the position of Global Product Director - also known as the Flux

Director position. But Vesuvius balked, telling Roy that it was looking for a candidate with a

"longer term future in the company." Instead, thal position was awarded to Michael Chetwyn

("Chetwyn"), a significantly younger counterpart.

Roy then pursued his second choice - the position of Global Development Director. He

was told, however, that this job needed to be filled by a "young," "high-potential" candidate.

Vesuvius continued to seek applicants for that job, though it eventually elected to reassign those

duties to a younger employee named Mark Snyder.

Ultimately, Vesuvius forced Roy into the newly-created role of "Special Projects

Director." Roy was told that he would report half (50%) of the time to Chetwyn, and the other

half (50%) to Vincent Boisdequin ("Boisdequin") in the "Flow Control" division.

In the

meantime, Vesuvius representatives began to press Roy on his plans for retirement or

resignation. Internal emails recently produced by Vesuvius show discussions occurring behind

Roy's back, revealing that Vesuvius management "believe[d] he [would] personally elect to

retire in the next 12 to 18 months," that it was a "delicate situation," and that "[ o]ver the year we

will manage him towards retirement." In March 2017, Defendant Christopher Young ("Young")

acknowledged in writing that "Roy has 38 years continuous (sic) service if we end the contract in

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the US after 12 months then we will have a substantial severance liability, which we do not want

to initiate. The best outcome is that Roy elects to retire and then we can manage any liability."

A year later, in March 2018, Young ("Young") offered Roy a severance of one year of

salary plus 18 months of COBRA reimbursement. Young never provided anything in writing

regarding this offer to Roy. Roy expressed his concern that he should have had a secure position

when he returned from China, and told Young directly: "I think there's been age discrimination."

Roy further stated his preference that legal counsel not be involved, hut that the severance offer

had to be increased.

Discussions about severance then stopped until May 2018. At that point, Young told Roy

he would be given a dramatically lower severance - only three months of severance pay. Roy

reminded Vesuvius of its obligations under the Severance Contact. Vesuvius' human resources

representative, Ryan van der Aa, told Roy that the Severance Contract did not apply. Roy's

employment then ended in June 2018, \Vith no severance having been paid.

Even though Vesuvius had selected Chetwyn over Roy for the Flux Director position,

Chetwyn actually left his employment in the Fall of 2018. Roy learned of this shortly after he

filed his Complaint in this action and, on October 3, 2018, Roy wrote to Vesuvius, expressing

interest in the now-vacant position. Defendants never responded to Roy's attempts at reemployment. Instead, Defendants filled the position with Olaf Schultz, yet another substantially

younger candidate.

II.

PLAINTIFF' HAS EXHAUSTIVELY SATISFIED HIS MEET AND CONFER

OBLIGATIONS

On December 18, 2018, Plaintiff served his First Set of Interrogatories, Requests for

Production of Documents, and Requests for Admissions on Defendants. Defendants produced

their responses to the Requests for Admissions on January 15, 2019.

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Thereafter, Defendants sought repeated extensions of time to produce responses to the

remaining discovery requests. On January 15, 2019, Defendants' counsel asked for an additional

two (2) weeks, with the responses to be produced by January 29, 2019. On January 29, 2019,

Defendants' counsel asked for additional time, with the responses to be produced by February 4,

2019. On February 11, 2019, Plaintiffs counsel attempted to confer with Defendants' counsel,

as he still had no discovery responses. Defendants' counsel was on vacation, so Plaintiffs

counsel waited until February 19, 2019 to follow-up further. At that point, counsel for both

parties spoke by telephone and, based on Defendants' counsel's representations in that

conversation and in the interest of avoiding Court intervention, Plaintiffs counsel agreed to

provide Defendants until February 27, 2019 to produce their discovery.

(See, email

correspondence, attached hereto collectively as Exhibit 1.)

On February 28, 2019, Defendants produced some responsive documents (e.g., a series of

emails and portions of Plaintiffs personnel file), but no written responses or other documents.

With much of the production entirely missing, the parties contacted the Court for further

direction on March 5, 2019, Defendants were given until March 15, 2019 to produce discovery.

(See, Journal Entry dated March 5, 2019.) Defendants failed to meet that deadline. As such, the

Court scheduled another telephone conference for the morning of April 3, 2019.

On April 2, 2019, at approximately 5:30 p.m., Defendants produced amended admission

responses, written responses to interrogatories and document requests, and some responsive

documents.

(See, Defendants' Answers to Interrogatories and Requests for Production of

Documents, attached hereto as Exhibit 2.)

In the telephone conference the next morning,

Plaintiffs counsel acknowledged that he had just received this production, but that it appeared to

be deficient and that further production would be necessary. Since Plaintiff had not had adequate

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time to review the production, the parties were directed to confer with each other and call back

for a telephone conference the morning of April l l, 2019. (See, Journal Entry dated April 3,

2019.)

Thus, on April 5, 2019, Plaintiffs counsel sent a letter outlining the deficiencies in

Defendants' production. So that a meaningful discussion could be had, Plaintiff's counsel asked

for a response from Defendants by April 9, 2019. Defendants did not respond, however, until

6:54 p.m. on April 10, 2019, again preventing Plaintiffs counsel from having a meaningful

opportunity to assess their response prior to the conference scheduled for the following morning.

(See, April 5 and April l 0, 2019 letters, attached hereto as Exhibit 3.)

As such, the Court scheduled an in-person conference for April 17, 2019. Despite the

above-described four months of foot-dragging, delay, and missed deadlines, Defendants'

counsel incredulously claimed at this conference that Plaintiffs counsel had not fully exhausted

his "meet and confer" obligations, and expressed to the Court a desire to continue working

through the discovery dispute.

In light of Defendants' counsel's concerns about exhausting efforts to resolve any issues,

and in an effort to give such counsel every benefit of the doubt, Plaintiffs counsel thus arranged

for a telephone conference on April 24, 2019 to further discuss discovery issues. Plaintiff's

counsel then memorialized that telephone conference in an April 26, 2019 email, asking for a

response to the outstanding issues by May 3, 2019. Unfortunately, however, a familiar pattern

then re-emerged. On May 3, 2019, Defendants' counsel produced nothing. Instead, he asked

that Plaintiff refrain from further action until May 7, 2019.

On May 8, 2019, having still

produced nothing, Defendants' counsel asked that Plaintiffs counsel refrain from a motion to

compel until May 9, 2019. On May 13, 2019, having still produced no response, Defendants'

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counsel again asked for more time - until May 15, 2019. In response, Plaintiffs counsel wrote:

"I understand. We will hold off on filing a motion to compel until then. However, we cannot

wait any longer than this latest delay." (See, email correspondence, attached hereto collectively

as Exhibit 4.) After all, at this point, PlaintifI's counsel had agreed to provide Defendants'

counsel with no less than eight separate extensions of time, not including the several conferences

with the Court to compel production. 2

III.

LAW AND ARGUME~T

Under the Ohio Rules of Civil Procedure, the scope of discovery is liberal. Civ. R.

26(B)(1) provides:

Parties may obtain discovery regarding any matter, not privileged, which is

relevant to the subject matter involved in the pending action, whether it relates to

the claim or defense of the party seeking discovery or to the claim or defense of

any other party, including the existence, description, nature, custody, condition

and location of any books, documents, electronically stored information, or other

tangible things and the identity and location of persons having knowledge of any

discoverable matter. It is not ground for objection that the information sought will

be inadmissible at the trial if the information sought appears reasonably calculated

to lead to the discovery of admissible evidence.

As explained below, the information sought by Plaintiff falls well within the scope of Civ. R.

26(B)(1 ).

Nevertheless, Defendants have refused to permit such discovery.

Thus, Plaintiff

hereby moves for an Order compelling responses under Civ. R. 37, which empowers this Comt

to compel Defendants to answer discovery when they will not do so voluntarily.

Given the history of discovery, it is not surprising that, despite Plaintiff's counsel's

admonition that a Motion to Compel would finally be filed, Defendants' counsel wrote on May

16, 2019 that he was "preparing a response to your email" and asked for yet another extension.

Assuming that Defendants would meet this new self-imposed deadline - a dubious assumption at

best - Defendants' counsel did not actually promise he would produce anything, just that he was

"preparing a response." While Plaintiff is filing this Motion, should Defendants in fact produce

all responsive information, Plaintiff will gladly withdraw it.

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Plaintiff Is Entitled to Know the Location of Individuals with Discoverable

Knowledge

First, Interrogatory Number 1 requested the name, contact information, and job title of

any and all persons answering or in any way participating in answering the lnterrogatories.

Defendant provided several names but not their location or contact information. Defendant is

obligated to provide this information under Civ.R. 26(B)(l), which states that parties "may

obtain discovery regarding any matter, not privileged, which is relevant to the subject matter

involved in the pending action .. .including the ... identity and location of persons having

knowledge of any discoverable matter." (Emphasis added.)

This information is crucial because, inter alia, Plaintiff needs to be able to subpoena

witnesses. To resolve this efficiently, Plaintiffs counsel suggested that Defendants' counsel

simply accept subpoenas on behalf of the individuals it identified. But Defendants refused.

Not only have they refused to accept subpoenas, but Defendants also claim that they

cannot produce the addresses of these individuals because of the European Union's General Data

Privacy Regulation ("GDPR") and the United Kingdom's Data Protection Act of 2018.

Defendants never raised this issue until their discovery production was three months overdue, in

violation of Civ.R. 44. l(B).

Perhaps more importantly, where the alleged obstacle to production is foreign law, the

burden of proving what that law is and demonstrating why it impedes production falls on the

party resisting discovery. Laydon v. Mizuho Bank, Ltd., 183 F. Supp. 3d 409, 413 (S.D.N.Y.

Apr. 29, 2016) (internal quotations omitted). (Pursuant to Loc.R. 11.0(H), unpublished and outof-state cases are attached hereto collectively in the order they are cited as Exhibit 5.) In order

to meet that burden, the party resisting discovery must provide the Court with information of

sufficient particularity and specificity to allow the Court to determine whether the discovery

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10a

sought is indeed prohibited by foreign law. Id; see also, Phoenix Process Equip. Co. v. Capital

Equip. & Tradinf? Corp., W.D.Ky. No. 16CV-00024, 2019 U.S. Dist. LEXIS 44390, *30 (Mar.

18, 2019) ("the party claiming the 'shelter of foreign law' bears the burden of establishing that

foreign law in fact bars production"). Despite nearly a half-year of delay and withholding of

information, Defendants have never identified any specific section of the GDPR or any other

foreign law that supports their claimed position. Since Defendants have failed to meet their

obligation to explain why a European law somehow absolves them of their basic discovery

obligations under Civ.R. 26, Defendants should be compelled to produce the responsive

information.

Plaintiff Is Entitled to the Identity of the Individuals Who Reviewed

Plaintiff's Job Performance

Plaintiff's Interrogatory Number 5 asked for the name, contact information, date of birth,

and job title of each current or former employee, agent, or representative of Vesuvius whose

responsibility it was to review Plaintiffs job performance during his employment through his

termination, indicating the dates during which each person had that responsibility.

Plaintiff's Complaint alleges claims for both failure to promote and unlawful termination.

In order to meet his prima facie burden for either claim, Plaintiff must demonstrate his

qualifications - which Defendants have claimed are lacking despite his lengthy employment.

Provenzano v. LC! Holdings, Inc., 663 F.3d 806, 813-14 (6 th Cir. 2011); Shazor v. Prof'l Transit

Mgmt., 744 F.3d 948, 957 (6 th Cir. 2014). 3 Further, this discovery is relevant because, inter alia,

Defendants have asserted that Plaintiff's job performance wm; one of several reasons that his

Ohio courts look to federal case law when interpreting analogous claims under R.C. §

4112. Coryell v. Bank One Trust Co. NA., 101 Ohio St. 3d 175, 2004-Ohio-723, Pl5, 803

N.E.2d 781, ~15.

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11a

four-decade employment was terminated. (See, Defendants' Answers to Interrogatories, Ex. 2,

No. 7,)

In their response to Interrogatory No. 5, Defendants objected, but told Plaintiff to "see

produced documents."

This reference to documents, however, leaves the Interrogatory

completely unanswered. First, Plaintiff is now forced to guess which documents are responsive.

Second, assuming Defendants are referring to Plaintiff's performance evaluations, no such

evaluations were produced for the time period from 2006 to 2011 or from 2017 to 2018. Third,

the 2016 performance evaluation is blank.

Fourth, the evaluations from 2012 to 2016 are

objectively incorrect - they identify Plaintiffs position as "Special Projects Director" for years

in which he did not hold that role.

This would be a lot easier if Defendants would simply answer the Interrogatory.

Defendants' last substantive position on this issue, however, was that they would work toward

answering Plaintiff's question, but that "[t]he individual responsible for custody and control of

Vesuvius' performance reviews is located in Europe and is on a leave of absence until April 23,

2019." Despite this unidentified individual returning from leave more than three weeks ago,

Defendants still have not answered a very simple question: who do Defendants claim was

responsible for evaluating Plaintiffs employment? Defendants should be compelled to produce

this information.

Plaintiff Must Discover the Reason that Defendants Changed the Terms of

Severance

Interrogatory Number 7 sought, inter alia, each and every reason relied upon by

Vesuvius as justification for how the terms of severance offered to Plaintiff were determined. As

explained above, Young verbally offered Plaintiff one year of severance (in addition to other

terms) in March 2018. At that time, Plaintiff complained of age discrimination. Two months

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12a

later, Young ddivered a written severance agreement to Plaintiff, promising only three months

of severance. Since the one-year offer of severance was never delivered to Plaintiff in writing,

Document Request No. 27 sought all documents referenced in, created for, or otherwise related

to the meeting between Christopher Young and Plaintiff in March 2018 in which severance was

discussed.

The Reason for Defendants' Dramatic Reduction in Severance Terms Is

Directly Related to the Basic Elements of Plaintiff's Retaliation Claim

Interrogatory No. 7 and Document Request No. 27 seek information bearing directly on a

fundamental aspect of Plaintiffs retaliation claim. More specifically, Plaintiffs claims have

been brought under, inter alia, R.C. § 4112.02(A), which makes it unlawful for "any employer,

because of the ... age ... of any person, to ... discriminate against that person with respect

to ... terms, conditions, or privileges of employment_, or any matter directly or indirectly related to

employment." In his conversation with Young in March 2018, Plaintiff expressed his concerns

that Vesuvius was violating age discrimination law.

Roy was protected from retaliation for

expressing this concern - R.C. § 4ll2.02(I) states that it is illegal "[f]or any person to

discriminate in any manner against any other person because that person has opposed any

unlawful discriminatory practice defined in this section."

Retaliation claims under R.C. § 4112.02(1) can he proved circumstantially by showing

that the plaintiff (1) engaged in protected activity; (2) the employer knew of this protected

activity; (3) the employer subsequently took an employment action adverse to the plaintiff; and

(4) a causal connection between the protected activity and the adverse employment action exists.

Abbott v. Crown Motor Co., 348 F.3d 537, 542 (6 th Cir. 2003). If a plaintiff meets his primafacie

burden, the defendant then must advance a legitimate, non-retaliatory reason for the challenged

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13a

decision. Id. If the defendant advances such a reason, the plaintiff must then demonstrate that

the reason is pretextual.

Defendants are refusing to provide the reason that they reduced the severance - this

obviously would then prevent Plaintiff from demonstrating pretext. How can Plaintiff show that

a reason is pretextual ifhe does not even know what the reason is?

Defendants Cannot Rely on Evid.R. 408 to Witlt/,old Production,

Because No Claim by Plaintiff Was Pending When tlte Severance Was

Offered and the Claim at Issue Did Not Even Exist until that Offer Was

Made

Defendants have argued that Evid.R. 408 justifies their withholding of an explanation for

why Plaintiff's severance was reduced from 12 months to three after complaining of

discrimination. That rule states:

Evidence of (l) furnishing or offering or promising to furnish, or (2) accepting or

offering or promising to accept, a valuable consideration in compromising or

attempting to compromise a claim which was disputed as to either validity or

amount, is not admissible to prove liability for or invalidity of the claim or its

amount. Evidence of conduct or statements made in compromise negotiations is

likewise not admissible. This rule does not require the exclusion of any evidence

otherwise discoverable merely because it is presented in the course of

compromise negotiations. This rule also does not require exclusion when the

evidence is offered for another purpose, such as proving bias or prejudice of a

witness, negativing a contention of undue delay, or proving an effort to obstruct a

criminal investigation or prosecution.

(Emphasis added.)

First and foremost, Evid. R. 408 does not apply, because no claim was pending at the

time Defendants' offer was made. In Atkinson v. International Technegroup, 106 Ohio App. 3d

349 (I st Dist.1995), the defendant's human resources director had concerns about age

discrimination when the plaintiff was terminated. After consulting with lawyers, the HR director

offered the plaintiff a release at his discharge, even though the plaintiff had not raised a claim. In

her deposition, the HR director admitted that, when she offered the release, she was concerned

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14a

about an eventual age discrimination claim. The court affirmed the trial court's inclusion of that

admission at trial. The court held that Evid. R. 408 did not apply because, at the time the

agreement was offered to the plaintitt~ no claim by the plaintiff was pending.

Thus, Evid. R. 408 is only operative if the claim at issue precedes the offer of settlement.

Here, however, the claim for unlawful retaliation actually arose from Defendants' offer of three

months of severance in May 2018. Stated otherwise, it was the offer itself that created the claim,

so Evid. R. 408 does not control.

Even if Evid.R. 408 applied, the reason for Defendants' dramatic reduction in offered

severance - whatever that reason may be - would still be admissible because Plaintiff is clearly

not seeking to introduce it to prove "liability for or invalidity of the claim or its amount."

Instead, the purpose of the discovery is to explore whether Defendants punishes employees,

through the terms and conditions of their employment (including severance offers), when those

employees raise retaliation concerns.

Perhaps most importantly, the admissibility of the explanation for Defendants' reduction

in severance is an issue best left for summary judgment or pretrial proceedings. At the discovery

phase, this Court need not determine - before the discovery is even produced! - whether the

response to Plaintiffs request is admissible under Evid.R. 408.

Finally, Defendants have incorrectly claimed that documents already produced somehow

provide the explanation for the reduction in severance. A review of the produced documents

fails to illuminate why Defendants offered one year of severance in March 2018, and then three

months of severance just 60 days later. Defendants must be compelled to provide an explanation

for such a shift.

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15a

Defendants Should Be Compelled to Identify the Individuals Who Expressed

Interest in the Global Product (Flux) Director Position

Interrogatory Number 9 sought the name, contact information, date of birth, date of hire,

and the salary and bonus for individuals who applied for the Global Product Director position also known as the Flux Director - at any time from January 1, 2016 to the present.

As explained above, Plaintiff has asserted an age discrimination failure to promote claim

with respect to this position. Plaintiff sought the role, but it was instead awarded to Chetwyn.

After Chetwyn's employment ended, Plaintiff expressed his interest in the position again, but

was again passed over in favor of a younger candidate. Thus, Plaintiff has moved to amend his

Complaint to include an additional age discrimination failure to hire claim.

Plaintiff is entitled to know if other individuals ~ besides him, Chetwyn, and Schulz expressed interest in this position. For example, if other, older applicants or employees sought

the position, but were passed over, similar to Plaintiff, it would show a pattern of denying

opportunities to older candidates in favor of younger, perhaps less-qualified alternatives. Such

evidence is clearly relevant to an age discrimination claim.

Discovery of Other Complaints Is Prototypical Evidence in Discrimination

and Retaliation Claims

In Interrogatory Number 16, Plaintiff sought the name, contact information, age, date of

birth, and job title of any person who has filed a wrongful discharge, retaliation, or age

discrimination complaint or charge against Defendant Vesuvius <luring the past five (5) years,

including, but not limited to, any formal or informal, written or verbal, and/or complaints or

charges made through internal company procedmes, or filed with any State or Federal agency.

In Request Number 18, Plaintiff asked for any and all documents relating to any age

discrimination complaint or concerns (including Plaintiffs), whether formal or informal, written

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16a

or verbal, made by any employee of Defendants in the last five (5) years, including, but not

limited to, notes, memoranda, letters, emails, tapes, and any documents relating to any

investigation. 4

Initially, Defendants identified eight separate individuals in response to these requests,

but did not provide the other requested information. When Plaintiff followed up to seek contact

information and ages, Defendants only produced the information for three of the eight (besides

Plaintiff). Defendants have not produced any documents related to these complaints.

Evidence of how discrimination and retaliation affected other employees is relevant and

discoverable in this case.

More specifically, "[c]ircumstantial evidence establishing the

existence of a discriminatory atmosphere at the defendant's workplace in turn may serve as

circumstantial evidence of individualized discrimination directed at the plaintiff," and evidence

of a discriminatory atmosphere "tend[s] to add 'color' to the employer's decision making

processes and to the influences behind the actions taken with respect to the individual plaintiff."

Ercegovich v. Goodyear Tire & Rubber Co., 154 F.3d 344, 356 (6 th Cir. 1998). Further, courts

have routinely determined that discovery spanning five years prior to the alleged discriminatory

acts is appropriate is discrimination cases. Stevenson v. General Electric Co., S.D.Ohio No. C-177-122, 1978 U.S. Dist. LEXIS 15133, at *3 (Ocl. 4, 1978); Leibforth v. Belvidere Nat'l Bank,

N,D.111. No. 99 C 50381, 2001 U.S. Dist. LEXIS 7725, at *4 (June 7, 2001); Tomanovich v.

Autumn Glen, N.D.Ind. No. IP 01-1247, 2002 U.S. Dist. LEXIS 14885, at *6 (Aug. 13, 2002).

Plaintiffs counsel proposed a revised version of this request to resolve an impasse, but

Defendants did not produce anything in response to either Plaintiffs original or revised version.

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17a

Plaintiff Should Be Permitted to Discover the Personnel Files of Key Players

Involved in Plaintiff's Claims.

Request No. IO sought personnel files of Christopher Young, Ryan Van der Aa, Michael

Chetwyn,

Patrick Andre,

Vincent Boisdequin, Alan Charnock,

and

Roel

van der

Sluis. Defendants have objected on various grounds, including that the personnel files are not

relevant nor likely to lead to the discovery of admissible evidence.

The Personnel Files Are Relevant and Likely to Lead to the Discovery of

Admissible Evidence

Michael Chetwyn is Vesuvius' former Global Flux Director.

As explained above,

Chetwyn was hired into the Global Product (Flux) Director position instead of Plaintiff. In a

failure to promote claim, the plaintiff's prima facie burden is to show: ( 1) he is a member of a

protected class; (2) he applied and was qualified for the job; (3) he was considered for and

denied the promotion; and (4) another employee of similar qualifications who was not a member

of the protected class was instead hired. Provenzano, 663 F .3d at 813-14. Thus, Plaintiff must

be permitted to explore Chetwyn' s qualifications - it is basic discovery in a failure to promote

case. Chetwyn's personnel file is thus clearly relevant.

Further, Chetwyn ultimately became one of Plaintiff's supervisors when Roy took the job

as Special Projects Director. Though Young promised that Plaintiff would have a job description

for that position, none was ever created. Thus, Plaintiff is now forced to seek discovery of other

personnel documents (e.g, Chetwyn's personnel file) to explore what roles and responsibilities

were held by the individuals overseeing the areas of Vesuvius' business relevant to Roy's duties

as Special Projects Director.

For the same reason, Boisdequin's personnel file is also relevant.

Boisdequin was

Vesuvius' Vice President Marketing & Technology, Flow Control. As Roy's other supervisor in

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18a

the Special Projects Director position, Boisdequin's records may have information about duties,

responsibilities, and performance of the areas in which Plaintiff worked. Given that Plaintiff's

performance is cited as a reason for his termination, the performance of the areas in which

Plaintiff worked is obviously relevant to this dispute.

Given the relevance of Plaintiff's performance, Plaintiff also sought the personnel files of

Patrick Andre and Roel van der Sluis, each of whom presided over Vesuvius' "Flow Control"

division. At the time he was given the Special Projects Director role, Plaintiff was told that 50%

of the role was to support this division.

Since Defendant has (a) limited (and seemingly

inaccurate) performance documentation related to Plaintiffs performance, (b) no job description

for Special Projects Director, and (c) very little documents related to this role, Defendants must

produce documents showing how the individuals overseeing the relevant area of the company

were performing.

Young and Ryan van der Aa are each in human resources roles at Vesuvius. Their

personnel files are relevant first and foremost to discover whether they have any training in

American or Ohio antidiscrimination laws and/or whether any prior discrimination complaints

have been lodged against them.

Additionally, given their roles in Plaintiff's termination,

Plaintiff should be permilted to discover whether either of them were criticized for how they

handled Plaintiff's departure or any other, similar situation.

Finally, Alan Charnock was Plaintiffs former supervisor during: his employment in

China. Chamock would have reviewed Plaintiff's performance and, Charnock's performance

would have bore on how Plaintiffs performance was perceived.

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Defendants Have Possession, Custody, or Control over the Requested

Documents

Defendants know that the above-descrihed personnel files are relevant, so they have

lobbed a series of other meritless arguments to avoid production. for example, Defendants claim

that "these requested files are maintained in Europe" and, thus, "the files are not under the

custody or control of either Vcsuvius USA Corporation or Young."

First, since at least 2010, Plaintiffs W-2 employer has been "Vesuvius USA

Corporation." The idea that this Vesuvius entity would not have possession of documents so

clearly related to Plaintiffs employment is exceedingly suspect. Instead, Defendants' argument

is, in actuality, an attempt by Defendants to force Plaintiff into participating in an everexpanding shell game of its 127 separate affiliates, most of whom are headquartered overseas.

Notably, Defendants withheld this objection about "custody or control" for four months before

raising it the evening before a telephone conference with the Court. And, when they bothered to

make this dubious claim, Defendants could not trouble themselves to actually identify the foreign

affiliate that purports to possess the responsive files. This is simply an abusive delay tactic.

Several of the employees at issue - like Chetwyn and Young - worked in the United

States. The other individuals supervised employees and operations in Ohio and throughout the

United States. Defendant should not be permitted to employ individuals in Ohio and then, once

litigation is filed, claim that information directly related to that employment is stored overseas

and thus incapable of production.

Civ.R. 34(A)(l) states that Plaintiff is entitled "to inspect and copy any designated

documents or electronically stored information ... that are in the possession, custody, or control

of' Defendants. In interpreting the Ohio Civil Rules of Procedure, the Ohio Supreme Court has

consistently advised that federal cases provide guidance to our interpretation of those rules.

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20a

State ex rel. Portune v. NFL, 155 Ohio App. 3d 314,316, 2003-Ohio-6195, 800 N.E.2d 1188, 'U6

(1 st Dist.2003).

A review of such federal cases demonstrates that discovery material is within a party's

"control" when the party has the practical ability to obtain the documents, particularly when the

opposing party does not have the same practical ability to do so. Union Commer. Servs. v. FCA

Int'! Operations LLC, E.D. Mich. No. 16-cv-10925, 2018 U.S. Dist. LEXIS 11820, t-6-7 (Jan. 25,

2018). Indeed, neither physical possession nor legal ownership of the documents is required;

instead, Rule 34 requires production if the party has the "practical ability" to obtain the

documents from another, irrespective of legal entitlement. Libertarian Party of Ohio v. Husted,

S.D. Ohio No. 13-cv-953, 2014 U.S. Dist LEXIS 111338, t-3_4 (Aug. 12, 2014); see also,

Chicago Ins. Co. v. Wiggins, E.D. Mich. No. 02-73801, 2005 U.S. Dist. LEXIS 27159, t-6-7

(Aug. 12, 2005).

Importantly, this "practical ability" test applies with respect to documents held by a

foreign parent or affiliate. ML.C., Inc. v. North American Philips Corp., 109 F.R.D. 134, 138

(S.D.N.Y. 1986). Contrary to Defendants' efforts here, parties "cannot be alJowed to shield

crucial documents from discovery by parties with whom it has dealt in the United States merely

by storing them with its affiliate abroad .. . .If defendant could so easily evade discovery, every

United States company would have a foreign affiliate for storing sensitive documents. Cooper

Industries, Inc. v. British Aerospace, Inc., 102 P.R.D. 918, 920 (S.D.N.Y. 1984) (emphasis

added).

The fact that Defendants have stored the personnel files of key players in foreign

affiliates does not absolve them of their obligation to produce.

Since Defendants have the

practical ability to obtain these documents, the Court should compel them to produce any

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responsive documents that are technically maintained by Vesuvius or any of its parent,

subsidiary, or affiliate entities.

The GDPR Does Not Block Production

Like the location of witnesses discussed above in Section IIl(A), Defendants nebulously

claim that the GDPR and other foreign laws preclude their production of these personnel files.

As explained above, Defendants have failed to carry their burden of identifying whal sections of

these laws, if any, they actually claim support their position. As such, the Court should not

credit this argument at all. 5

While the GDPR is a relatively recent E.U. law, at least one American court has

confronted the same argument advanced by Defendants - and rejected it. In Finjan, Inc. v.

Zscaler, Inc., N.D. Cal. No. 17-cv-06946, 2019 U.S. Dist. LEXIS 24570 (Feb. 14, 2019), the

defendant claimed that it could not produce certain emails because they were purportedly

protected by the GDPR.

The court wrote that, "[i]n general, a foreign country's statute

precluding disclosure of evidence do [es] not deprive an American court of the power to order a

party subject to its jurisdiction to produce evidence even though the act of production may

violate that statute." Id. at *3-4. Therefore, even if Defendants could coherently explain how

production of the personnel files would violate the GDPR - which they have not - such an

explanation would not preclude production.

Instead, under the U.S. Supreme Court's decision in Societe Nationale Industrielle

Aerospatiale v. United States Dist. Court for Southern Dist., 42 U.S. 522, 107 S. Ct. 2542

(1987), the Finjan, Inc. court used five factors to determine that production was appropriate: (1)

Plaintiff anticipates that Defendants will - for the first time - identify sections of Lhe

GDPR and other laws in the opposition briefing. If that occurs, it would, of course, completely

undercut the burden Defendants bear, and would entirely prevent Plaintiff from a meaningful

opportunity to rebut their position. Thus, the Court should not permit such a tactic.

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the importance of the documents or other information requested to the litigation; (2) the degree

of specificity of the request; (3) whether the information originated in the United States; (4) the

availability of alternative means of securing the information; and (5) the extent to which

noncompliance would undermine important interests of the United States, In weighing these

factors, the court determined that the defendant needed to produce the requested information.

The same analysis results in the same outcome here.

For example, factor (1) clearly weighs in favor of production. The personnel records, as

explained above, bear directly on central issues to this litigation like (a) Plaintiffs performance,

(b) the performance of the units in which Plaintiff worked, (c) prior discrimination complaints,

(d) Defendants' management of Plaintiffs termination, (e) Defendants' knowledge of Ohio and

American antidiscrimination laws, and potentially other issues.

Factor (2) also weighs in favor of production. Plaintiff only seeks the personnel files of

m£!! individuals. Plaintiff did not seek "all" personnel files for certain units or divisions, nor

did he request "any" personnel files that fell within broad, vague parameters.

Instead, he

specifically identified seven specific individuals relevant to this lawsuit.

Factor (3) is unclear. Plaintiff knows that Chetwyn and Young performed significant job

responsibilities within the United States, Upon information and belief, all of the other identified

employees oversaw work, divisions, and employees in the United States. Thus, at least some of

the responsive personnel records likely did originate in the United States.

Factor (4) again weighs in favor of disclosure. Plaintiff has no alternative means of

obtaining the requested files.

Factor (5), perhaps more than any other factors, tips the scales entirely in favor of

production.

Ohio has a clear public policy prohibiting age discrimination and unlawful

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23a

retaliation. As explained herein, personnel records (performance evaluations, training, etc.) are

basic discovery in such cases. If a foreign company were permitted to employ individuals in this

state, but then evade liability for flagrantly violating our laws by simply warehousing personnel

files overseas, it would dramatically undermine the state's public policy.

Defendants Should Not Be Permitted to Hide behind Their "Custody or

Contror Argument

In addition to Document Request No. 10 (discussed above), Defendants' "possession,

custody, and control" argument was also made in response to Document Request No. 25, which

sought all personnel files/applicant materials for all applicants for the following positions: ( 1)

Global Product Director; (2) Global Development Director; and (3) Special Projects Director,

For the reasons explained above in Section III(D), this information is critical to Plaintiffs failure

to promote claim.

Indeed, the "possession, custody, and control" argument was advanced by Defendants in

response to the following discovery requests: Interrogatory Number 2, Interrogatory Number 3,

Interrogatory Number 4, Interrogatory Number 26, Interrogatory Number 29, Interrogatory

Number 30, Interrogatory Number 31, Request Number 1, Request Number 2, Request Number

4, Request Number 7, Request Number 8, Request Number 13, and Request Kumbcr 19. For the

reasons outlined above in Section III(F)(2), any responsive information held by sister or parent

companies that is responsive to these requests should be produced in response.

Defendants Must Produce Documents Related to Plaintiff's Breach of

Contract Claim

Plaintiff's Document Request Number 23 sought all agreements, assignments,

memoranda, notes, filings, and other documents associated with the merger/acquisition between

Vesuvius and Foseco Metallurgical Inc. in 2008. Plaintiff sought this information based on his

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24a

breach of contract claim, arising from Defendants' failure to comply with the obligations under

the Severance Contract. In refusing to pay Plaintiff what he was owed, Ryan van der Aa claimed

that the Severance Contract did not apply because it was executed by Foseco, Vesuvius'

predecessor. In response to this Request, Defendants initially objected and produced nothing.

They have since produced a few pages filed with Ohio Secretary of State, but the merger

agreement, assignment documents, and other related discovery is still being withheld.

ln Acordia of Ohio, L.L.C. v. Fishel, 133 Ohio St.3d 356, 2012-Ohio-4648, 978 N.E.2d

823, the Ohio Supreme Court held that, while an "absorbed company ceases tu exist as a separate

business entity," it is not "completely erased from existence" and instead "becomes part of the

resulting company following the merger." The merged company thus "step[s] into the shoes of

the absorbed company" with respect to agreements between employers and employees. Id. at 17.

The Fishel decision related to non-compete agreements, but has since been applied in other

unrelated drcumstances. See, e.g., Nationstar Mortgage, L.L.C. v. Wagener, 8th Dist. Cuyahoga

No. 101280, 2015-Ohio-1289, 163 at n.12.

Plaintiff needs to evaluate the documentation related to the merger between Foseco and

Vesuvius to ascertain whether liabilities (like those under the Severance Contract) were

explicitly retained or transferred, whether the documents have a choice of law provision, and

other related issues. Defendants should be compelled to produce all responsive documents.

Plaintiff is Entitled to an Award of Attorneys' Fees

Civ.R. 37(A)(S)(a) provides, in pertinent part:

If the motion [to compel] is granted, the court shall, after giving an

opportunity to be heard, require the party or deponent whose conduct

necessitated the motion, the party or attorney advising that conduct, or

both to pay the movant's reasonable expenses incurred in making the

motion, including attorney's fees.

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25a

The only limitation on the award of attorneys' fees is that they be reasonable. See, Swanson v.

Swanson, 48 Ohio App. 2d 85,355 N.E.2d 894 (1976).

Defendants' unjustified delay, refusal to answer discovery, and deficient production is

either an unfair delaying tactic or simply a disregard for the Ohio Rules of Civil Procedure.

Either way, Plaintiff should be entitled to an award of reasonable attorneys' fees in connection

with the filing of this Motion to Compel.

IV.

CONCLUSION

Civ. R. 26 adopts the liberal discovery philosophy, implementing a "policy of affording

attorneys every opportunity and advantage in preparing their case before trial." Rossman v.

Rossman, 47 Ohio App.2d 103, 107, 352 N.E.2d 149 (8 th Dist.1975). In derogation of this

policy, Defendants have failed to produce discovery that is crucial to affording Plaintiff an

adequate opportunity to present his claims. Despite ample efforts, however, and compliance

with Civ. R. 37(E) and Cuy. Co. Loe. R. 1 l(F), Defendants have refused to produce this

discovery. Thus, based on the foregoing, Plaintiff respectfully moves this Court for an Order

compelling Defendants to thoroughly respond to and produce the discovery at issue.

.1..Ll

Re~Ctnily so/1ttted,

.· i

I10 _~~---

Ann ' 1e A ' (#0070020)

a @mccarthylebit.com

John E. Moran (#0087272)

jem@mccarthylebit.com

McCARTHY, LEBIT, CRYSTAL

& LIFFMAN CO., L.P.A.

101 West Prospect Avenue

1800 Midland Building

Cleveland, Ohio 44115

(216) 696-1422

(216) 696-12 l O (facsimile)

Attorneys for Plaintiff

(00734748-1}

Electronically Filed 05/16/2019 13:46 /MOTION/ CV 18 90457il5 Confirmation Nbr. 1711891 / BATCH

26a

Moran, Jack E.

Cc:

Subject:

Moran, Jack E.

Tuesday, February 19, 2019 4:33 PM

Peters, Patrick 0. (Cleveland)

Ahern, Ann Marie; Brown, Sabrina L. (Cleveland); Mazzone, Charlene M.; Saghy, Joy D.

RE: Royston Phillips v. Vesuvius USA Corporation

Follow Up Flag:

Copied to Worldox (Clients\ 18569\00001\01286506.MSG)

From:

Sent:

To:

Pat:

Thank you for our call today. I understand that you will be speaking with your client later this week. In the interest of

avoiding Court involvement, we will wait until Wednesday, February 27, 2019 for Defendants' discovery responses. If

we do not have them at that time, however, we will contact the Court to seek an order compelling the responses.

Jack E. Moran• Principal • McCarthy, Le bit, Crystal & Liffman Co., LPA

101 W. Prospect Ave., Suite 1800 • Cleveland, OH 44115 • Phone: 216.695.1422

jem@mccarthvlebit.com • www.mccarthylebit.com • Download my vCard

Linked In • I witter • Google+ • Facebook • IR Global Member Firm

Confidentiality Notice to Incorrect Addressee: http://www.rnccarthylebit.com/confidential~cornrnunicaticn/

From: Peters, Patrick 0. (Cleveland) <Patrick.Peters@jacksonlewis.com>

Sent: Thursday, February 14, 2019 3:17 PM

To: Moran, Jack E. <JEM@mccarthylebit.com>

Cc: Ahern, Ann Marie <AMA@mccarthylebit.com>; Brown, Sabrina L.(Cleveland)<Sabrina.Brown@Jacksonlewis.com>;

Mazzone, Charlene M.<CMM@mccarthylebit.com>; Saghy, Joy D.<jds@mccarthylebit.com>

Subject: Re: Royston Phillips v. Vesuvius USA Corporation

Will do.

On: 14 February 2019 13:02,

Patrick 0. Peters

Attorney at Law

Jackson Lewis P.C.

Park Center Plaza I, Suite 400

6100 Oak Tree Blvd.

Cleveland, OH 44131

Direct: (216) 750-4338 I Main: (216) 750-0404 I Mobile: (216) 288-9972

Patrick.Peters@jacksonlewis.com I www.jacksonlewis.com

Jackson Lewis P.C. is honored to be recognized as the "Innovative Law Firm of the Year" by the International Legal

Technology Association {IL TAJ and is a proud member of the CEO Action for Diversity and Inclusion initiative

"Moran, Jack E." <JEM@mccarthylebit.com> wrote:

EXHIBIT

Electronically Filed 05/16/2019 1346 /MOTION/ CV 18 904574 / Confirm

iln Nbr. 171 [91 / BATC

27a

Pat:

Please let me know a time in the afternoon on Monday that will work for you.

Jack E. Moran• Principal • McC:irthy, Lcbit, Crystal & Liffman Co., LPA

101 W. Prospect Ave., Suite 1800 • Cleveland, DH 44115 • Phone: 216.696.1422

jem@mccarthylebit.com • www.mccarthylebit.com • Download my vCard

Linl1edln • Twitter • Google+ • Facebook • IR Global Member Firm

Confidentiality Notice to Incorrect Addressee: http://www.rnccarthylebit.com/ronfidential-com1nunication/

From: Peters, Patrick 0. (Cleveland) <Patrick.Peters@jacksonlewis.com>

Sent: Thursday, February 14, 2019 10:44 AM

To: Moran, Jack E.<JEM@mccarthylebit.com>

Cc: Ahern, Ann Marie <AMA@mccarthylebit.com>; Brown, Sabrina L.(Cleveland)<Sabrina.Brown@Jacksonlewis.com>;

Mazzone, Charlene M.<CMM@mccarthylebit.com>; Saghy, Joy D.<jds@mccarthylebit.com>

Subject: RE: Royston Phillips v. Vesuvius USA Corporation

Hi Jack,

I am out of the office this week but will call you on Monday.

Thanks,

Pat

Patrick 0. Peters

Attorney at Law

Jackson Lewis P.C.

Park Center Plaza I, Suite 400

6100 Oak Tree Blvd.

Cleveland, OH 44131

Direct: (216) 750-4338 I Main: (216) 750-0404 I Mobile: (216) 288-9972

Patrick.Peters@jacksonlewis.com I www.jacksonlewis.com

Jackson Lewis P.C. is honored to be recognized as the "Innovative Law Firm of the Year" by the International Legal

Technology Association {ILTA) and is a proud member of the CEO Action for Diversity and Inclusion initiative

From: Moran, Jack E.<JEM@mccarthylebit.com>

Sent: Monday, February 11, 2019 5:18 PM

To: Peters, Patrick 0. (Cleveland) <Patrick.Peters@jacksonlewis.com>

Cc: Ahern, Ann Marie <AMA@mccarthylebit.com>; Brown, Sabrina L.(Cleveland)<Sabrina.Brown@Jacksonlewis.com>;

Mazzone, Charlene M.<CMM@mccarthylebit.com>; Saghy, Joy D.<jds@mccarthylebit.com>

Subject: RE: Royston Phillips v. Vesuvius USA Corporation

Pat:

I just left you a voicemail on this. Can we please have the written responses and what documents you do have?

Jack E. Moran• Principal • McCarthy, Lebit, Crystal & Liffman Co., LPA

101 W. Prospect Ave., Suite 1800 • Cleveland, OH 44115 • Phone: 216.696.1422

jem@mccarthvlebit.com • www.mccarthylebit.com • Download my vCard

linked In • Twitter • Goo1Jle+ • Facebook • IR Glubal Member Firm

~ronicalfyFTTed 05/1672019 1346 7 MO flOITTCV71r904574TConfirmation Nbr. 1711891 / BATCH

28a

Confidentiality Notice to Incorrect Addressee: http:/jwww.mccarthylebit.com/confidential-communicaticn/

From: Peters, Patrick 0. (Cleveland) <Patrick.Peters@jacksonlewis.com>

Sent: Tuesday, January 29, 2019 5:45 PM

To: Moran, Jack E.<JEM@mccarthylebit.com>

Cc: Sturgess, Cheryl (Cleveland) <Cheryl.Sturgess@jacksonlewis.com>; Ahern, Ann Marie <AMA@mccarthylebit.com>;

Brown, Sabrina L. (Cleveland) <Sabrina.Brown@Jacksonlewis.com>; Mazzone, Charlene M.<CMM@mccarthylebit.com>;

Saghy, Joy D. <jds@mccarthylebit.com>

Subject: RE: Royston Phillips v. Vesuvius USA Corporation

Good evening Jack,

I have not been able to complete our discovery responses by today's extended deadline, but anticipate being able to do

so by the end of the week/beginning of next. I will get our responses to you ASAP.

Thanks in advance for your courtesies.

Patrick 0. Peters

Attorney at Law

Jackson Lewis P.C.

Park Center Plaza I, Suite 400

6100 Oak Tree Blvd.

Cleveland, OH 44131

Direct: (216} 750-4338 I Main: (216) 750-0404 I Mobile: (216) 288-9972

Patrick.Peters@jacksonlewis.com

I www.jacksonlewis.com

Jackson Lewis P.C. is honored to be recognized as the "Innovative Law Firm of the Year" by the International

Legal Technology Association (IL TA) and is a proud member of the CEO Action for Diversity and Inclusion initiative

From: Moran, Jack E.<JEM@mccarthylebit.com>

Sent: Tuesday, January 15, 2019 5:04 PM

To: Peters, Patrick 0. (Cleveland) <Patrick.Peters@jacksonlewis.com>

Cc: Sturgess, Cheryl (Cleveland) <Cheryl.Sturgess@jacksonlewis.com>; Ahern, Ann Marie <AMA@mccarthylebit.com>;

Brown, Sabrina L. (Cleveland} <Sabrina.Brown@Jacksonlewis.com>; Mazzone, Charlene M.<CMM@mccarthylebit.com>;

Saghy, Joy D. <jds@mccarthylebit.com>

Subject: Re: Royston Phillips v. Vesuvius USA Corporation

Pat:

Two weeks is acceptable, thanks.

Jack E. Moran

(216) 696-1422

On Jan 15, 2019, at 4:53 PM, Peters, Patrick 0. (Cleveland} <Patrick.Peters@jacksonlewis.com> wrote:

Hi Ann-Marie and Jack,

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29a

We're working on gathering the documents and information needed to respond to the interrogatories

and requests for production. Can we have an additional two weeks? I know you want to keep this case

moving and I am working to do that, but the intervening holidays delayed my efforts a bit. Please let me

know.

Thanks,

Pat

Patrick 0. Peters

Attorney at Law

Jackson Lewis P.C.

Park Center Plaza I, Suite 400

6100 Oak Tree Blvd.

Cleveland, OH 44131

Direct: (216) 750-4338 I Main: (216) 750-0404 ] Mobile: (216) 288-9972

Patrick,Peters@jacksonlewis.com

I www.jacksonlewis.com

Jackson Lewis P.C. is honored to be recognized as the "Innovative law Firm of the Year" by the International

legal Technology Association (ILTA) and is a proud member of the CEO Action for Diversity and Inclusion initiative

From: Sturgess, Cheryl (Cleveland) <Cheryl.Sturgess@jacksonlewis.com>

Sent: Tuesday, January 15, 2019 4:44 PM

To: ama@mccarthylebit.com; jem@mccarthylebit.com

Cc: Peters, Patrick 0. {Cleveland) <Patrick.Peters@iacksonlewis.com>; Brown, Sabrina L. (Cleveland)

<Sabrina.Brown@Jacksonlewis.com>

Subject: Royston Phillips v. Vesuvius USA Corporation

This message is being sent on behalf of Patrick Peters

Attached are correspondence from Mr. Peters and Defendants' Responses and Objections to Plaintiff's

First Set of Requests for Admissions.

Cheryl Sturgess

Legal Secretary

Jackson lewis P.C.

Park Center Plaza I, Suite 400

6100 Oak Tree Blvd.

Cleveland, OH 44131

Direct: (216) 750-4325 I Main: (216) 750-0404

Cheryl.Sturgess@jacksonlewis.com

I www.jacksonlewis.com

Jackson Lewis P.C. is honored to be recognized as the "Innovative law Firm of the Year" by the International

Legal Technology Association {IL TA) and is a proud member of the CEO Action for Diversity and Inclusion initiative

Electronically Filed 05/16/2019 1346 / MOTION / CV 18 90457 4 / Confirmation Nbr. 1711891 / BATCH

30a

Confidentiality Note: This e-mail, and any attachmentto it, contains privileged and confidential information intended only for the use of the

individual(s) or entity named on the e-mail. If the reader of this e-mail is not the intended recipient, or the employee or agent responsible for

deiivering it to the intended recipient, you are hereby notified that reading it is strictly prohibited. If you have received this e-mail in error,

please immediately return it to the sender and delete it from your system. Thank you.

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31a

IN THE COURT OF COMMON PLEAS

CUYAHOGA COUNTY, OHIO

ROYSTON PHILLIPS,

Plaintiff,

VESUVIUS U.S.A. CORPORATION,

eta!.,

Defendants.

)

CASE NO. CV-18-904574

JUDGE PETER J. CORRIGAN

DEFENDANTS' RESPONSES AND

OBJECTIONS TO PLAINTIFF'S FIRST

SET OF INTERROGATORIES AND

REQUESTS FOR PRODUCTION OF

DOCUMENTS DIRECTED TO

DEFENDANTS

Defendants Vesuvius USA Corporation 1 ("Vesuvius") and -Christopher Young

(collectively "Defendants") respond to Plaintiff's Royston Phillips' ("Plaintiff') First Set of

Interrogatories and Requests for Production of Documents ("Discovery Requests") as follows:

GENERAL OBJECTIONS

Except where otherwise noted, these general objections apply to each Discovery Request

and are incorporated into the answer to each inquiry.

Defendants object to the Discovery Requests insofar as they seek information that is

neither relevant to any party's claims or defenses nor proportional to the needs of the case.

Defendants object to the Discovery Requests insofar as they seek to impose on

Defendant obligations beyond those imposed by the Court and any other relevant rules, orders, or

mandates from the Court.

Improperly identified as "Vesuvius U.S.A. Corporation" in the original filed Complaint.

EXHIBIT

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n Nbr. 1711891 / BATCH

32a

By making a specific objection to a particular Discovery Request, Defendants do not

imply that the specific objection is not applicable in response to any other particular Discovery

Request, or that the general objections are not applicable to that particular Discovery Request.

While Defendants have responded to the Discovery Requests, they do so without

waiver of their rights to object to any further inquiry by Plaintiff or any effort by him to compel

responses beyond those provided herein.

Defendants object to the Discovery Requests to the extent they seek information

and/or documents about persons, entities and/or subject matters that are unrelated to the matters

before the Court.

Defendants understand the Discovery Requests are continuing in nature. Defendants

will provide responses to the Discovery Requests and will supplement such responses in

accordance with the Federal Rules of Civil Procedure and any rule, order or mandates of the

Court.

Defendants object to the Discovery Requests to the extent that they seek information

that are not in their possession, custody, or control.

Defendants object to any Discovery Requests that may request the production of

documents or information that is subject to the attorney-client privilege, work product doctrine,

or any other applicable privileges or as otherwise protected from disclosure, To the extent there

is any inadvertent disclosure of privileged or otherwise protected information, such disclosure

shall not constitute any waiver of the privileges and protections, and all such material will be

promptly returned,

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Defendant reserves the right to object to the introduction into evidence before the

Court of infonnation that is privileged or protected under the law or that has been revealed or

produced inadvertently. Defendants do not by these answers knowingly or intentionally waive

any claim of attorney-client privilege, work product, or any other applicable protection.

Subject to and in accordance with the foregoing General Objections, Defendants respond

to the Discovery Requests as follows:

INTERROGATORIES

Please state the name, residential and business addresses, residential and business

telephone numbers, and job title of any and all persons answering or in any way

participating in answering these Interrogatories, and briefly describe in what way each

person participated in answering these Interrogatories.

ANSWER: Objection. This Interrogatory impermissibly seeks to invade the attorney-client

privilege and is otherwise not reasonably calculated to lead to the discovery of admissible

evidence. Subject to and without waiving the foregoing objection, Defendant Christopher

Young ("Young") and various representatives of Defendant Vesuvius USA Corporation

("Vesuvius") with the assistance of undersigned counsel.

Please state the salary, commission, bonuses, and any other compensation received by

Plaintiff for each year of his employment with Defendant Vesuvius U.S.A. Corporation

(hereinafter, "Vesuvius").

ANSWER: Objection. This Interrogatory is overly broad and unduly burdensome due to

Plaintiff's long employment history with Vesuvius and Foseco. Subject to and without

waiving the foregoing objections, see produced documents.

Please state your cost for any benefits provided to Plaintiff for the last two (2) years of

Plaintiff's employment and state what the costs would be through today if Plaintiff were

still employed.

ANSWER: See produced documents.

Please list the title, job duties, and responsibilities of each position Plaintiff held while he

was employed by Defendant Vesuvius, providing the dates for which each position was

held.

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ANSWER: Objection. This Interrogatory is overly broad and unduly burdensome due to

Plaintifrs long employment history with Vesuvius and Foseco. Subject to and without

waiving the foregoing objections, see produced documents.

Please state the name, residential and business addresses, residential, business, and

mobile telephone numbers, date of birth, and job title of each current or former employee,

agent or representative of Defendant Vesuvius whose responsibility it was to review

Plaintiffs job performance during his employment through his termination, indicating the

dates during which each person had that responsibility.

ANSWER: Objection. This Interrogatory is not reasonably calculated to lead to the

discovery of admissible evidence. Vesuvius employees can be contacted through counsel.

Further, this Interrogatory is overly broad and unduly burdensome due to Plaintiff's long

employment history with Vesuvius and Foseco. Subject to and without waiving the

foregoing objections, see produced documents.

Please state the name, residential and business addresses, residential, business and

mobile telephone numbers, date of birth, and job title of each employee of Defendant

Vesuvius who (a) participated in the decision to terminate Plaintiff's employment; (b)

participated in the decision regarding who would hold the Global Product Director

position in 2016/2017; (c) participated in the decision regarding who would hold the

Global Development Director position in 2016/2017; participated in the decision to

assign Plaintiff to the Special Projects Director position; and (e) participated in deciding

what severance terms, if any, should be offered to Plaintiff during 2016-2018; identifying

the role each person had in the decision making of each above-described decision.

ANSWER: Objection. This Interrogatory is overly broad, unduly burdensome, and seeks a

narrative responses better suited for a deposition. Subject to and without waiving the

foregoing objections, personnel decisions for senior management employees are made by

relevant members of the senior executive board. At the time of Plaintiff's termination,

Ryan van der Aa, Vice President Human Resources, Foundry; Vincent Boisdequin, Vice

President M&T Flow Control; and Roel van der Sluis, President, Flow Control were the

relevant members of the senior executive committee involved in the decision to terminate

Plaintifrs employment and offer him severance. Mr. Boisdequin made the decision

regarding who would hold the Flux Director position in 2016/2017. Mr. Boisdequin made

the decision regarding who would assume the duties contemplated for the Global

Development Director position in 2016/2017. Mr. Boisdequin made the decision to create

the Special Projects Director position for Plaintiff.

Please state each and every reason or reasons relied upon by Vesuvius as justification for

the following decisions and list the name, residential and business addresses, residential,

business, and mobile telephone numbers, date of birth, and job title of each current or

former employee who has knowledge of the reasons allegedly supporting (a) the

termination of Plaintiff's employment, (b) Plaintiff not being assigned to the Global

Product Director position, (c) Plaintiff not being assigned to the Global Development

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Director position, (d) Plaintiff's assignment to the Special Projects Director position, and

(e) how the terms of severance offered to Plaintiff at any time were determined.

ANSWER: Objection. This Interrogatory is overly broad, unduly burdensome, and seeks a

narrative responses better suited for a deposition. Subject to and without waiving the

foregoing objections, Defendants state that Vesuvius terminated Plaintifrs employment

primarily on account of his desire to relocate back to Ohio from China and the lack of a

position available to him in Ohio. While Plaintiff was offered the position of Global

Development Director with Vesuvius in Europe following his tenure in China, Plaintiff

declined the same due to the location and travel required of the position. Plaintiff was not

considered for the Flux Director position due to the fact that it was also located in Europe

and Plaintiff lacked recent line and P/L experience. In order to ease his transition to

retirement, Vesuvius created the position of Special Projects Director for Plaintiff for a

one~year term. As Special Projects Director, Plaintiff expressed a clear lack of motivation

in contributing to Vesuvius due to his disagreements with the direction of the company and

did not contribute much, if anything, towards the Special Projects Director role over the

last several months of his employment. His performance as Special Projects Director was,

therefore, disappointing and contributed to the decision to terminate his employment.

Please state the name, residential and business addresses, residential, business, and

mobile telephone numbers, current salary, commission, bonuses, date of birth, job title

and the date of hire for the person(s) who assumed or perfonned Plaintiff's job

responsibilities after Plaintiff's tennination from employment, identifying the duties each

person assumed and the date on which the person assumed the duties.

ANSWER: Objection. This Interrogatory is overly broad and not reasonably calculated to

lead to the discovery of admissible evidence, Subject to and without waiving the foregoing

objections, Plaintiff's position at Vesuvius was a temporary, term position, created for

Plaintiff upon his return from China. As such, no Vesuvius employee assumed his job

duties following his termination.

Please state the name, address, telephone number, date of birth, date of hire, and the

salary and bonus for individuals who applied for the Global Product Director position at

any time from January l, 2016 to the present, identifying which candidate was given the

position (if any candidate).

ANSWER: Objection. This Interrogatory is overly broad and unduly burdensome. Subject

to and without waiving the foregoing objections, the Flux Director position was filled by

current employees Michael Chetwyn and Olaf Schulz through the succession planning

process. There were no internal or external candidates. Michael Chetwyn's date of birth is

July xx, 1972, and Olaf Schulz's date of birth is March xx, 1970.

10.

Please state the name, address, telephone number, and date of birth of the individuals

who applied for the Special Projects Director position at any time from January 1, 2016

to the present, identifying which candidate was given the position (if any candidate).

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ANSWER: Objection. This Interrogatory is overly broad and unduly burdensome. Subject

to and without waiving the foregoing objections, Plaintifrs position at Vesuvius was a

temporary, term position, created for Plaintiff upon his return from China to ease his

transition to retirement. As such, there were no applicants for the Special Projects Director

position.

11.

Please state the name, address, telephone number, and date of birth of the individuals

who applied for the Global Development Director position at any time from January 1,

2016 to the present, identifying which individual was given the position (if any

candidate).

ANSWER: Objection. This Interrogatory is overly broad and unduly burdensome. Subject

to and without waiving the foregoing objections, the Global Development Director position

was never filled. Rather, Mark Snyder, Global R&D Director, assumed the duties that

were contemplated to comprise the Global Development Director position. Mark Snyder's

date of birth is April xx, 1976.

12.

Please state the name, residential and business addresses, and residential, business, and

mobile telephone numbers, date of birth, and job title of each person who has relevant

knowledge concerning or relating to the subject matter of Plaintiff's Complaint.

ANSWER: Objection. This Interrogatory is overly broad and unduly burdensome, and

seeks information covered by the attorney-client privilege and work product doctrine.

Subject to and without waiving the foregoing objections, Defendants state that the

following individuals may have knowledge of the claims or defenses asserted in this matter

and may be contacted through undersigned counsel:

1. Royston Phillips ("Phillips"). Phillips has knowledge of his employment with

Vesuvius and the claims and defenses asserted in this matter.

2. Christopher Young ("Young"). Young has knowledge of Phillips' employment with

Vesuvius and the claims and defenses asserted in this matter.

3. Ryan van der Aa ("van der Aa"), van der Aa has knowledge of Phillips'

employment with Vesuvius and the claims and defenses asserted in this matter.

4. Roel van der Sluis ("van der Sluis"). van der Sluis has knowledge of Phillips'

employment with Vesuvius and the claims and defenses asserted in this matter.

5. Vincent Boisdequin ("Boisdequin"). Boisdequin has knowledge of Phillips'

employment with Vesuvius and the claims and defenses asserted in this matter.

Defendants reserve the right to supplement its response to this Interrogatory as discovery

progresses.

13.

Please state the name, residential and business addresses, residential, business, and

mobile telephone numbers, and job title of the person(s) having the most knowledge of

Defendant Vcsuvius' personnel policies for the years 2014 to the present.

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ANSWER: Objection. This Interrogatory is overly broad and unduly burdensome. Subject

to and without waiving the foregoing objections, Sonya Santos, Human Resources

Manager. Santos can be contacted through undersigned counsel.

14.

Please state the name, residential and business addresses, residential, business, and

mobile telephone numbers, and job title of the person(s) having the most knowledge of

Defendant Vesuvius' computer systems, e-mail systems and file retention policies and

practices for the years 2014 to the present.

ANSWER: Objection. This Interrogatory is overly broad, unduly burdensome, and not

reasonably calculated to the discovery of admissible evidence. Subject to and without

waiving the foregoing objections, Marek Frackiewicz, Chief Information Officer,

15.

Please state whether any statement, affidavit or other related documents have been

obtained by you, your agents, attorneys, or representatives from any of the persons

having any knowledge of the facts of this case, and identify the person from whom the

statement or document was obtained and the dates on which the statement or docwnent

was obtained.

ANSWER: Objection. This Interrogatory seeks information covered by the attorney-client

privilege and work product doctrine. Subject to and without waiving the foregoing

objection, no formal statements, affidavits 1 or related documents have been obtained to

date. Defendants reserve the right to supplement its response to this Interrogatory as

discovery progresses.

16.

Please provide the name, residential and business addresses, residential, business and

mobile telephone numbers, age, date of birth, and job title of any person who has filed a

wrongful discharge, retaliation, or age discrimination complaint or charge against

Defendant Vesuvius during the past five (5) years, including but not limited to any formal

or informal, written or verbal, and/or complaints or charges made through internal

company procedures, or filed with any State or Federal agency.

ANSWER: Objection, This Interrogatory is overly broad and seeks categories of

information not reasonably calculated to the discovery of admissible evidence. Subject to

and without waiving the foregoing objections, Plaintiff, Alireza Rezaie, Angel Davis,

Marcus Walker, Kevin Greeson, Mary Matson, Robert Hiltebeitel, and Raymond

Anderson.

17.

Except experts, state the name, residential and business addresses, residential, business,

and mobile telephone numbers of each person you intend to call as a witness at trial

and/or use as a witness on swnmary judgment, and as to each, state the issue or issues as

to which each individual will be called to testify.

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ANSWER: Objection. This Interrogatory is premature and seeks information covered by

the attorney-client privilege and work product doctrine. Defendants have not yet

determined what witnesses they will call in the defense of this matter. Defendants will

supplement this Response as required by the Ohio Rules of Civil Procedure, Local Rules,

or any applicable Court order,

18.

State the name, residential and business addresses, residential and business telephone

numbers of every person whom you intend to call as an expert witness at the trial of this

case and state the general field of his or her expertise; the subject matter on which each

such expert is expected to testify; the substance of the facts and opinions to which each

expert is expected to testify; and a summary of the grounds for each opinion which each

such expert is expected to express.

ANSWER: Objection, This Interrogatory is premature. Defendants have not yet

determined what experts, if any, they will use in the defense of this matter. Defendants will

supplement this Response as required by the Ohio Rules of Civil Procedure, Local Rules,

or any applicable Court order.

19.

For each expert identified above, state whether each such expert has rendered a Wl'itten

report, the date of each Wl'itten report prepared or approved by each expert, and the name

and address of each person now having custody of each Wl'itten report prepared or

approved by each expert.

ANSWER: Objection. This Interrogatory is premature. Defendants have not yet

determined what experts, if any, they will use in the defense of this matter. Defendants will

supplement this Response as required by the Ohio Rules of Civil Procedure, Local Rules,

or any applicable Court order.

20.

Identify each document Defendant Vesuvius intends to offer as evidence at trial or

summary judgment in this case.

ANSWER: Objection. This Interrogatory is premature and seeks information covered by

the attorney-client privilege and work product doctrine. Defendants have not yet

determined what exhibits they will use in the defense of this matter. Defendants will

supplement this Response as required by the Ohio Rules of Civil Procedure, Local Rules,

or any applicable Court order.

21.

Please state the name of any person or company who has issued any insurance policy or

agreement under which any person or company carrying on an insurance business may be

liable to satisfy part or all of a judgment which may be entered in this action or to

indemnify or reimburse any such judgment or settlement, and the limits of the liability for

injury to any one person under the terms of each such insurance agreement or policy.

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ANSWER: Objection. This Interrogatory is overly broad and not reasonably calculated to

lead to the discovery of admissible evidence, Subject to and without waiving the foregoing

objections, see produced documents.

22.

Please state whether Defendants will agree that all documents produced by Defendants

during discovery are "records of regular conducted activity" as defined in Ohio Evid. R.

803(6) and that testimony from a records custodian is not necessary in order to

authenticate originals or any copies of the documents.

ANSWER: Defendants agree that all documents produced to date are "records of regular

conducted activity" as defined by Ohio Evid. R. 803(6) and that testimony from a records

custodian is not necessary to authenticate said documents.

23.

If your response to Inten-ogatory Number 22 is "no", please state the name, business

address and residential, business, and mobile phone number of Custodian of Records for

Defendants,

ANSWER: Please see Defendants' Answer to Interrogatory No. 22.

24.

State, in dollar amounts, the volume of sales performed by Vesuvius to customers located

in the state of Ohio for the years 2015, 2016, 2017, and 2018.

ANSWER: Objection. This Interrogatory is overly broad, unduly burdensome, and not

reasonably calculated to lead to the discovery of admissible evidence.

25.

Identify all customers in the state of Ohio for whom Vesuvius has solicited business in

the years 2015, 2016, 2017, and 2018,

ANSWER: Objection. This Interrogatory is overly broad, unduly burdensome, and not

reasonably calculated to lead to the discovery of admissible evidence.

26.

Identify all evidence that supports the allegations set forth in Paragraph 13 of your

Answer, in which you state that "Plaintiff indicated that it was his intention to only hold the

[M&T Position in China] for the three years, after which he would return to the United States

and retire."

ANSWER: Objection. This Interrogatory seeks information covered by the attorney-client

privilege and work product doctrine. Subject to and without waiving the foregoing

objections, see produced documents and witness testimony,

27.

State any and all reasons that Vesuvius decreased its severance offer to Plaintiff between

March 2018 and May 2018.

ANSWER: Objection. This Interrogatory is overly broad, unduly burdensome, and seeks a

narrative response better suited for a deposition. Further responding, Ohio Evid. R, 408

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protects discussions related to offers of compromise, and as such, interrogatories relating to

Defendants' discussions regarding severance are not reasonably calculated to the discovery

of admissible evidence.

28.

Identify all locations in the state of Ohio from which Vesuvius conducts business.

ANSWER: Objection. This Interrogatory is vague, ambiguous, and overly broad. Subject

to and without waiving the foregoing objections, Vesuvius operates facilities in Avon Lake,

Ohio; Brook Park, Ohio; and Conneaut, Ohio.

29.

State the basis for the allegations you made in Paragraph 13 of your Affirmative Defenses

in your Answer.

ANSWER: Objection. This Interrogatory seeks information covered by the attorney-client

privilege and work product doctrine.

30.

State the basis for the allegations you made in Paragraph 15 of your Affirmative Defenses

in your Answer.

ANSWER: Objection. This Interrogatory seeks information covered by the attorney-client

privilege and work product doctrine.

31.

State the basis for the allegations you made in Paragraph 5 of your affirmative Defenses

in your Answer.

ANSWER: Objection. This Interrogatory seeks information covered by the attorney-client

privilege and work product doctrine.

REQUEST FOR PRODOUCTION OF DOCUMENTS

REQUEST NO.1. Please provide all documents reflecting positions held by Plaintiff, all

transfers made, including the name/title of the position, the dates during which he held each

position, and the rate of pay in each position during his employment with Defendant Vesuvius.

RESPONSE: Objection. This Interrogatory is overly broad and unduly burdensome due to

Plaintiff's long employment history with Vesuvius and Foseco. Subject to and without

waiving the foregoing objections, see produced documents.

REQUEST NO. 2. Please provide all documents which show income, commission, bonuses and

any other compensation received by Plaintiff during his employment with Defendant Vesuvius.

RESPONSE: Objection. This Interrogatory is overly broad and unduly burdensome due to

Plaintiff's long employment history with Vesuvius and· Foseco. Subject to and without

waiving the foregoing objections, see produced documents.

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REQUEST NO. 3. Please provide all documents which show income, commission, bonuses and

any other compensation paid to the position of M&T Director Steel, China/North Asia from

January 1, 2016 to the present.

RESPONSE: See produced documents,

REQUEST NO. 4. Please provide all documents which show income, commission, bonuses and

any other compensation paid to the position of Global Product Director from January 1, 2016 to

the present.

RESPONSE: See produced documents.

REQUEST NO. S. Please provide all documents which show income, commission, bonuses and

any other compensation paid to the position of Global Development Director from January 1,

2016 to the present

RESPONSE: As this position does not and has never existed, no such documents exist.

REQUEST NO. 6. Please provide any and all information concerning benefits extended to

Plaintiff before his termination of employment, including but not limited to life insurance,

accidental death insurance, disability insurance, and vision insurance, and any and all

documentation regarding all benefits offered and all premiums paid with respect to Plaintiff.

RESPONSE: See produced documents.

REQUEST NO. 7. Please provide a copy of the job description for each position held by

Plaintiff throughout his employment with Defendant Vesuvius.

RESPONSE: Objection. This Interrogatory is overly broad and unduly burdensome due to

Plaintiff's long employment history with Vesuvius and Foseco. Subject to and without

waiving the foregoing objections, see produced documents.

REQUEST NO. 8. Please provide copies of all performance appraisals, evaluations, and any

notes, memoranda, and/or other documents which pertain to Plaintiff's performance throughout

his employment with Defendant Vesuvius.

RESPONSE: Objection. This Interrogatory is overly broad and unduly burdensome due to

Plaintiff's long employment history with Vesuvius and Foseco, Subject to and without

waiving the foregoing objections, see produced documents.

REQUEST NO. 9. Please provide the complete personnel, and any other file or document

maintained by any agent or employee of the Defendant Vesuvius, including but not limited to

performance, performance evaluations, discipline, termination, all documents reflecting

compensation, salary, W-2's, raises, merit increases and bonus information, employment

applications, documents related to experience and training, educational transcripts of any sort, all

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documents reflecting change in position, title or compensation and the reasons therefore for

Plaintiff, and all e-mails that refer or relate to Plaintiff and/or Plaintiffs performance as an

employee of Defendant Vesuvius.

RESPONSE: Objection, This Interrogatory is overly broad and unduly burdensome due to

Plaintiff's long employment history with Vesuvius and Foseco. Subject to and without

waiving the foregoing objections, see produced documents.

REQUEST NO, 10. Please produce the complete personnel file, excluding medical records, and

any other file maintained by any agent or employee of the Defendant Vesuvius, including but not

limited to performance, performance evaluations, discipline, tennination, all documents

reflecting compensation, salary, W-2's, raises, merit increases and bonus information,

employment applications, documents related to experience and training, educational transcripts

of any sort, all documents reflecting change in position, title or compensation and the reasons

therefor for Christopher Young, Ryan Van der Aa, Michael Chetwyn, Patrick Andre, Vincent

Boisdequin, Alan Charnock, and Roel van der Sluis.

RESPONSE: Objection. This Request is not reasonably calculated to lead to the discovery

of admissible evidence.

REQUEST NO. 11. Please provide any and all documents reflecting the severance offered to

Plaintiff, whether or not it was rejected, including but not limited to any notes, memoranda,

recordings, or email correspondence regarding the approval, agreement or terms to offer to

Plaintiff.

RESPONSE: Objection, This Request seeks information covered by the attorney-client

privilege and work product doctrine. Subject to and without waiving the foregoing

objections, see produced documents.

REQUEST NO. 12. Please produce any documents regarding the "Severance Arrangements for

the Foseco Businesses in the USA" document executed by Plaintiff and Foseco Metallurgical

Inc., including but not limited to any notes, memoranda, recordings, or email regarding the

enforcement of such document.

RESPONSE: Objection. This Request seeks information covered by the attorney-client

privilege and work product doctrine. Subject to and without waiving the foregoing

objections, see produced documents.

REQUEST NO. 13. Please produce in native format any and all job postings, descriptions, or

any other documents related to the positions of M&T Director Steel, China/North Asia; Global

Product Director; Global Development Director; and the Special Projects Director.

RESPONSE: See produced documents.

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REQUEST NO. 14. Please provide any and all documents regarding the following decisions,

including but not limited to any email correspondence, notes and memorandum discussing the

reason and/or the details supporting such decisions:

(1)

(2)

(3)

(4)

Plaintiffs termination;

Plaintiffs non-assignment to Global Product Director;

Plaintiff's non-assignment to Global Development Director;

Plaintiff's assignment to Special Projects Director.

RESPONSE: Objection. This Request seeks information covered by the attorney-client

privilege and work product doctrine. Subject to and without waiving the foregoing

objections, see produced documents.

REQUEST NO. 15. Please produce the complete personnel file, excluding medical records, and

any other file maintained by any agent or employee of the Defendant Vesuvius, including but not

limited to performance, performance evaluations, discipline, tennination, all documents

reflecting compensation, salary, W-2's, raises, merit increases and bonus information,

employment applications, documents related to experience and training, educational transcripts

of any sort, all docwnents reflecting change in position, title or compensation and the reasons

therefor for any person who assumed any of Plaintiff's responsibilities after Plaintiff's

tennination from employment.

RESPONSE: Objection. This Request is not reasonably calculated to lead to the discovery

of admissible evidence. Subject to and without waiving the foregoing objections, Plaintiff's

position as Special Projects Director was a temporary, term position, created for Plaintiff

upon his return from China to ease his transition to retirement. As such, no person

assumed any of Plaintiff's responsibilities after Plaintiff's termination from employment.

Please produce any and all statements, affidavits or other related

REQUEST NO. 16.

docwnents containing information relating to any of the allegations in this litigation which have

been obtained by you, your agents, attorneys or representatives from any of the persons having

any knowledge of the facts of this case.

RESPONSE: Objection. This Request seeks information covered by the attorney-client

privilege and work product doctrine. Subject to and without waiving the foregoing

objections, see produced documents.

REQUEST NO. 17. Please provide a copy of each document Defendants intend to produce as

evidence at trial in this case.

RESPONSE: Objection. This Request is premature and seeks information covered by the

attorney-client privilege and work product doctrine. Defendants have not yet determined

what exhibits they will use in the defense of this matter. Defendants will supplement this

Response as required by the Ohio Rules of Civil Procedure, Local Rules, or any applicable

Court order.

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REQUEST NO. 18. Please provide any and all documents relating to any age discrimination

complaint or concerns (including Plaintiffs), whether formal or informal, written or verbal,

made by any employee of Defendants in the last five (5) years, including but not limited to notes,

memoranda, letters, emails, tapes, and any documents relating to any investigation.

RESPONSE: Objection. This Request is not reasonably calculated to the discovery of

admissible evidence. Further, this Request seeks information covered by the attorney-client

privilege and work product doctrine.

REQUEST NO. 19. Please provide all organizational charts that include any positions held or

applied for by Plaintiff at Defendant Vesuvius for the years 2008 through the present.

RESPONSE: Objection. This Request is overly broad and unduly burdensome. Subject to

and without waiving the foregoing objections, see produced documents.

REQUEST NO. 20. Please provide the complete file for any expert that you intend to call at

trial, including but not limited to copies of any and all documents given to or received from such

expert.

RESPONSE: Objection. This Request is premature. Defendants have not yet determined

what experts, if any, they will use in the defense ofthis matter, Defendants will supplement

this Response as required by the Ohio Rules of Civil Procedure, Local Rules, or any

applicable Court order.

REQUEST NO. 21. Please provide copies of any insurance policy or indemnification agreement

which may satisfy part or a11 of any judgment which may be entered in this lawsuit, or which

may indemnify or reimburse for payments made to satisfy any judgment related to the claims

asserted in this lawsuit.

RESPONSE: Objection, This Request is overly broad and not reasonably calculated to

lead to the discovery of admissible evidence. Subject to and without waiving said

objections, see produced documents.

REQUEST NO. 22. Please produce Defendant Vesuvius' annual reports for the years 2014 to

present.

RESPONSE: Objection. This Request is not reasonably calculated to lead to the discovery

of admissible evidence. Subject to and without waiving the foregoing objections, the annual

reports for Vesuvius PLC are available online.

REQUEST NO. 23, Please produce all agreements, assignments, memoranda, notes, filings, and

other documents associated with the merger/acquisition between Vesuvius and Foseco

Metallurgical Inc, in 2008.

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RESPONSE: Objection. This Request is overly broad and unduly burdensome and not

reasonably calculated to lead to the discovery of admissible evidence.

REQUEST NO. 24. Please produce all documents that support Paragraphs 5, 13, and 15 of your

Affirmative Defenses in your Answer.

RESPONSE: Objection. This Request seeks information covered by the attorney-client

privilege and work product doctrine. Subject to and without waiving the foregoing

objections, see produced documents.

REQUEST NO. 25. Please produce all personnel files/applicant materials for all applicants for

the following positions: (1) Global Product Director; (2) Global Development Director; (3)

Special Projects Director.

RESPONSE: Objection. This Request is overly broad and unduly burdensome. Subject to

and without waiving the foregoing objections, there were no applicants for the Special

Projects Director position as Vesuvius created the position of Special Projects Director for

Plaintiff for a one~year term to ease his transition to retirement upon 11,is return from

China. Further responding, the Flux Director position was filled by existing employees

through Vesuvius' succession planning. Further responding, no one has ever held the

Global Development Director position. Subject to the foregoing, see produced documents.

REQUEST NO. 26, Please produce all documents supporting the allegations in Paragraph 13 of

your Answer, in which you state "Plaintiff indicated that it was his intention to only hold the

[M&T Position in China] for the three years, after which he would return to the United States

and retire."

RESPONSE: See produced documents.

REQUEST NO. 27. Please produce all documents referenced in, created for, or otherwise

related to the tneeting between Christopher Young and Plaintiff in March 2018 in which

severance was discussed.

RESPONSE: Objection. This Request seeks information covered by the attorney-client

privilege and work product doctrine. Subject to and without waiving the foregoing

objections, see produced documents.

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As to objections,

Patrick 0. Peters (0079539)

Sabrina L. Brown (0096700)

6100 Oak Tree Blvd., Suite 400

Cleveland, Ohio 44131

Phone: (216) 750-0404

Fax: (216) 750-0826

Email: Patrick.Peters@jacksonlewis.com

Sabrina.Brown@jacksonlewis.com

Counsel for Defendants

Vesuvius USA Corporation and Christopher Young

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CERTIFICATE OF SERVICE

I hereby certify that on this 2nd day of April, 2019, a true and accurate copy of the

foregoing was sent to the following parties of record via email.

Ann•Marie Ahem (#0070020)

ama@mccarthvlebit.com

John E. Moran (#0087272)

iem@mccarthylebit.com

McCARTHY, LEBIT, CRYSTAL

& LIFFMAN CO., L.P.A.

101 West Prospect Avenue

1800 Midland Building

Cleveland, Ohio 44115

r:r:i1

Patrick 0, Peters (0079539)

One of the Attorneys for Defendants

Vesuvius USA Corporation and Christopher

Young

4816-0318-9894, V. 6

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11·

McCarthy, Lebit, Crystal & Liffman

Jack E. Moran

Attorney at Law

Writer's Ext.: 143

jem@mccarthylebit.com

April 5, 2019

VIA EMAIL

Patrick 0. Peters, Esq.

Sabrina L. Brown, Esq.

Jackson Lewis P.C.

6100 Oak Tree Blvd., Suite 400

Cleveland, Ohio 44131

Patrick.Peters@jacksonlewis.com

Sabrina.Brown@jacksonlewis.com

Re:

Royston Phillips v. Vesuvius U.S.A. Corporation, et al.

Cuyahoga County Common Pleas Court Case No. CV-18-904574

Dear Counsel:

Pursuant to Local Rule 1 l(F), I am writing to call your attention to certain deficiencies in

your responses to Plaintiffs first set of discovery in the above-captioned matter. In some

instances, we believe that your objections are without merit and that your failure to fully respond

is unjustified. In other instances, Defendants failed to respond completely. We are quite

disappointed with Defendants' lack ofresponse in light of the fact that Defendants were given over

three months to respond to these Requests. As explained below, the information sought by

Plaintiff clearly falls within the broad scope of Ohio Rule of Civil Procedure 26(A). Therefore,

we ask that you promptly supplement all of the deficient responses listed below.

Interrogatory Number 1 requested the name, residential and business addresses, residential

and business telephone numbers, and job title of any and all persons answering or in any way

participating in answering these Interrogatories, and briefly describe in what way each person

participated in answering these Interrogatories. We need to know the individuals that provided

information, by name, so that we can determine which individuals need to be deposed. Please

specifically identify the individuals that provided the information, as well as what information they

provided.

In Interrogatory Number 2, Plaintiff sought the salary, commission, bonuses, and any other

compensation received by Plaintiff for each year of his employment with Defendant Vesuvius

USA Corporation (hereinafter, "Vesuvius"). As with several of your responses, your Answer to

this Interrogatory says "see produced documents" but does not identify which documents answer

the question, as required by Civ. R. 33. The documents you provided do not appear to answer this

Interrogatory. If you are refen-ing to Foseco documents from 2008 and earlier, those documents

obviously do not shed light on the breakdown of compensation from 2009 and beyond. If you are

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Phone: 216.696.1422 ■ Fax: 216.696.1210 • www.mccarthylebit.com

49a

Patrick 0, Peters, Esq.

Sabrina L. Brown, Esq.

April 5, 2019

Page 2

referring to Mr. Phillips' W-2 statements, those documents do not provide a breakdown of salary,

commission, bonuses, and other compensation. That breakdown is relevant to, inter alia,

Plaintiff's job performance as well as his damages.

For Interrogatory Number 3, Plaintiff asked for your cost for any benefits provided to

Plaintiff for the last two (2) years of Plaintiffs employment and state what the costs would be

through today if Plaintiff were still employed. Again, your Answer referenced produced

documents, yet none of the documents produced show the cost to Defendant Vesuvius for

providing the referenced benefits. We need these documents for a damage calculation. If

Defendant elects not to provide the requested information, we will assume that it acquiesces to

Plaintiffs expert's benefit cost assumptions and calculations.

With respect to Interrogatory Number 4, we sought the title, job duties, and responsibilities

of each position Plaintiff held while he was employed by Defendant Vesuvius, providing the dates

for which each position was held. The documents you have provided make reference to certain

selected titles, duties, and responsibilities, but they do not provide a comprehensive picture of this

information - which is standard infonnation in an employment case. Please answer the

Interrogatory.

Interrogatory Number 5 asked for the name, residential and business addresses, residential,

business, and mobile telephone numbers, date of birth, and job title of each current or former

employee, agent or representative of Defendant Vesuvius whose responsibility it was to review

Plaintiff's job performance during his employment through his termination, indicating the dates

during which each person had that responsibility. Your reference to documents again still leaves

this Interrogatory unanswered. Presumably, you are referring to performance evaluations.

However, we are missing performance evaluations for the time period from 2006 to 2011 and from

2017 to 2018. The 2016 performance evaluation is blank - should it be blank? Further, the

evaluations from 2012 to 2016 are exceedingly irregular, in that, e.g., they identify Mr. Phillips'

position as Special Projects Director for years in which he did not hold this role, as well as other

pieces of incorrect information. Please provide all (and correct versions of) Plaintiffs

performance evaluations.

In Interrogatory Number 7, we sought, each and every reason or reasons relied upon by

Vesuvius as justification for the following decisions and list the name, residential and business

addresses, residential, business, and mobile telephone numbers, date of birth, and job title of each

current or former employee who has knowledge of the reasons allegedly supporting (a) the

tennination of Plaintiff's employment, (b) Plaintiff not being assigned to the Global Product

Director position, (c) Plaintiff not being assigned to the Global Development Director position, (d)

Plaintiffs assignment to the Special Projects Director position, and (e) how the terms of severance

offered to Plaintiff at any time were detennined. Defendants did not address subpart (e); please

provide the requested information.

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Patrick 0. Peters, Esq.

Sabrina L. Brown, Esq.

April 5, 2019

Page 3

In Interrogatory Number 9, Plaintiff sought the name, address, telephone number, date of

birth, date of hire, and the salary and bonus for individuals who applied for the Global Product

Director position at any time from January l, 2016 to the present, identifying which candidate was

given the position (if any candidate). Defendants have yet to provide (1) the full dates of birth, (2)

the dates of hire for each named individual, and (3) the salary and bonus information for each

person. This is relevant to an age claim as well as a damage calculation. Further, we requested

the identity of all applicants. Please identify any other applicants for this role.

With respect to Interrogatory Number 11, Plaintiff asked for the name, address, telephone

number, and date of birth of the individuals who applied for the Global Development Director

position at any time from January 1, 2016 to the present, identifying which individual was given

the position (if any candidate). You specify that the position was never filled, but you did not tell

us who applied for the position (or any other information related to them), as requested in the

Interrogatory. You also did not provide Mr. Snyder's date of birth. Please provide the requested

information.

Interrogatory Number 12 asked for the name, residential and business addresses, and

residential, business, and mobile telephone numbers, date of birth, and job title of each person who

has relevant knowledge concerning or relating to the subject matter of Plaintiffs Complaint. Please

provide the dates of birth for these individuals. Further, Christopher Young's job title was not

provided in response to this, or any other, Interrogatory. Please provide same.

In Interrogatory Number 16, we sought the name, residential and business addresses,

residential, business and mobile telephone numbers, age, date of birth, and job title of any person

who has filed a wrongful discharge, retaliation, or age discrimination complaint or charge against

Defendant Vesuvius during the past five (5) years, including but not limited to any formal or

informal, written or verbal, complaints and/or charges made through internal company procedures,

or filed with any State or Federal agency. You did not provide the age, date of birth, or job titles

for the individuals referenced in your Answer. This information is necessary to identify the people

at issue; for example, the name "Angel Davis" is exceedingly common and providing his or her

name alone does not provide Plaintiff with the information actually sought by this request. Plaintiff

is entitled to discover whether Defendant has a history or atmosphere of condoning discrimination

and/or treating certain, protected workers less favorably than others. See e.g., Sprint/United

Management Co., v. Mendelsohn, 552 U.S. 379,388, 128 S.Ct. 1140 (2008); Griffin v, Finkbeiner,

689 F.3d 584, 598 (6 th Cir.2012), The time period specified certainly is not objectionable, because

periods of five (5) years have been found appropriate for such discovery. See, e.g., Leibforth v.

Belvidere Nat'! Bank, No. 99 C 50381, 2001 U.S. Dist. LEXIS 7725, at *4 (N.D. Ill. June 7, 2001);

Tomanovich v. Autumn Glen, No. IP 01-1247, 2002 U.S. Dist. LEXIS 14885, at *6 (N.D. lnd. Aug.

13, 2002). The requested information falls well within the liberal purview of Civ. R. 26 and is

discoverable.

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Patrick 0. Peters, Esq.

Sabrina L. Brown, Esq.

April 5, 2019

Page 4

With respect to Interrogatory Number 24, Plaintiff requested that Defendant state, in dollar

amounts, the volume of sales performed by Vesuvius to customers located in the state of Ohio for

the years 2015, 2016, 2017, and 2018. Interrogatory Number 25 sought Defendant to identify all

customers in the state of Ohio for whom Vesuvius has solicited business in the years 2015, 2016,

2017, and 2018. If Defendants are willing to unequivocally consent to jurisdiction in this Court in

this action, then Plaintiff will not insist that Defendants provide the information requested in these

Interrogatories. However, Defendants denied that jurisdiction was proper in this Court. (Answer

to Amended Complaint, Y,5.) As such, the amount of business done, and the nature of Defendants'

contacts with this State, are directly relevant to the case. Please advise as to which course you

would like to take.

In Interrogatory Number 26, we requested that Defendant identify all evidence that

supports the allegations set forth in Paragraph 13 of your Answer, in which you state that "Plaintiff

indicated that it was his intention to only hold the [M&T Position in China] for the three years,

after which he would return to the United States and retire." Your Answer includes an objection.

Please confirm that you have not withheld any documents under this objection, but instead have

produced all responsive documents subject to your objection.

For Interrogatory Number 27, Plaintiff asked for any and all reasons that Vesuvius

decreased its severance offer to Plaintiff between March 2018 and May 2018. You objected and

asse1ted the provisions of Evid. R. 408. That rule says, in pertinent part:

Evidence of. .. furnishing or offering or promising to furnish ... a valuable

consideration in compromising or attempting to compromise a claim which was

disputed as to either validity or amount, is not admissible to prove liability

for ... the claim or its amount.

This information is not being requested to prove that an offer or promise was furnished. Fu1ther,

this information is not being requested to "prove liability ... for the claim or its amount." Instead,

Interrogatory No. 27 seeks the reasons that the offer was reduced in an approximately two-month

period, from, inter alia, one year of severance to three months of severance, when the only change

in circumstances was that Plaintiff had raised age discrimination concerns. Evid. R. 408 explicitly

says that the "rule ... does not require exclusion when the evidence is offered for another purpose,"

as in, a purpose other than establishing liability for the claim. Here, the purpose of the evidence

is to establish that Vesuvius unlawfully retaliated against Plaintiff in response to his protected

activity, by changing the tenns and conditions of his employment. Therefore, this Interrogatory

must be answered, as your objection is misplaced.

Interrogatory Number 29 sought the basis for the allegations you made in Paragraph 13 of

your Affinnative Defenses in your Answer. In Interrogatory Number 30, Plaintiff asked for the

basis for the allegations you made in Paragraph 15 of your Affirmative Defenses in your Answer.

For Interrogatory Number 31, we asked for the basis for the allegations you made in Paragraph 5

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Patrick 0. Peters, Esq.

Sabrina L. Brown, Esq,

April 5, 2019

Page5

of your affirmative Defenses in your Answer. If you have asserted an affirmative defense, we

assume that you are in possession of evidence that supports that defense. For example, in

Paragraph 15, you asserted the "after acquired evidence" defense. By its very nature, your

assertion of that defense suggests that you have "evidence" that you have "acquired." Please

identify that evidence, and the evidence supporting your other affirmative defenses as requested

in these interrogatories.

REQUEST FOR PRODUCTION OF DOCUMENTS

With regard to Request Number 1, Plaintiff asked for all documents reflecting positions

held by Plaintiff, all transfers made, including the name/title of the position, the dates during which

he held each position, and the rate of pay in each position during his employment with Defendant

Vesuvius. The employment records list spans until 2008, and you have provided a few offer letters

for different positions. This seems like a minimal production given Plaintiffs nearly 40-year

career. Can you please identify which documents are actually responsive to this request?

Request Number 2 sought all documents which show income, commission, bonuses and

any other compensation received by Plaintiff during his employment with Defendant Vesuvius.

As with our discussion of Interrogatory No. 2, above, we do not believe you have actually produced

documents that reflect the requested information for Plaintiff's recent employment, let alone his

entire employment.

In Request Number 3, Plaintiff requested all documents which show income, commission,

bonuses and any other compensation paid to the position of M&T Director Steel, China/North Asia

from January 1, 2016 to the present. You only produced information related to Plaintiff, but we

know that at least one other employee took this position during the requested time period. Please

produce the information requested.

For Request Number 4, we asked for all documents which show income, commission,

bonuses and any other compensation paid to the position of Global Product Director from January

1, 2016 to the present. While your response says "see produced documents," we do not actually

see any documents responsive to this request. Please clarify.

Request Number 6 sought any and all information concerning benefits extended to Plaintiff

before his termination of employment, including but not limited to life insurance, accidental death

insurance, disability insurance, and vision insurance, and any and all documentation regarding all

benefits offered and all premiums paid with respect to Plaintiff. We have no documents that relate

to this. Perhaps you can explain, but we do not have any benefit books, policies, employee

handbooks, or any documents showing the cost, premiums, etc. with respect to any of these

benefits. Please produce the same.

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Patrick 0. Peters, Esq.

Sabrina L. Brown, Esq.

April 5, 2019

Page 6

In Request Number 7, Plaintiff requested a copy of the job description for each position

held by Plaintiff throughout his employment with Defendant Vesuvius. You objected, referenced

produced documents, but we see no job descriptions in the production. Please identify which

documents you claim are responsive.

For Request Number 8, Plaintiff requested copies of all performance appraisals,

evaluations, and any notes, memoranda, and/or other documents which pertain to Plaintiffs

performance throughout his employment with Defendant Vesuvius. Please see our discussion

regarding Interrogatory No. 5, explaining the serious deficiencies in Defendant's production of the

perfonnance evaluations.

With respect to Request Number 9, Plaintiff asked for the complete personnel, and any

other file or document maintained by any agent or employee of the Defendant Vesuvius, including

but not limited to performance, performance evaluations, discipline, termination, all documents

reflecting compensation, salary, W-2's, raises, merit increases and bonus infonnation,

employment applications, documents related to experience and training, educational transcripts of

any sort, all documents reflecting change in position, title or compensation and the reasons therefor

for Plaintiff, and all e-mails that refer or relate to Plaintiff and/or Plaintiffs performance as an

employee of Defendant Vesuvius. In your February 28, 2019 email, you identified Bates Nos.

000077-000403 as the contents of Plaintiff's personnel file. However, you just recently produced

additional performance evaluations, which we assume would also constitute contents of Plaintiff's

personnel file. As such, please identify the Bates ranges of Plaintiffs full file.

Request Number 10 asked for the complete personnel file, excluding medical records, and

any other file maintained by any agent or employee of the Defendant Vesuvius, including but not

limited to performance, performance evaluations, discipline, termination, all documents reflecting

compensation, salary, W-2's, raises, merit increases and bonus infonnation, employment

applications, documents related to experience and training, educational transcripts of any sort, all

documents reflecting change in position, title or compensation and the reasons therefor for

Christopher Young, Ryan Van der Aa, Michael Chetwyn, Patrick Andre, Vincent Boisdequin,

Alan Chamock, and Roel van der Sluis. Young, van der Aa, Chetwyn, Boisdequin, and van der

Sluis are all managerial employees who played central roles in the decision-making leading to the

termination of Plaintiff's four-decade career. Charnock and Andre are managerial employees who

allocated Plaintiffs job duties in the latter years of his career, and thus had significant influence

over the trajectory of his career. We are entitled to discover all relevant information related to the

individuals who made the questioned decisions in this case, and this request is aimed at discovering

that admissible evidence regarding the positions held, personnel history, discipline, and

performance of the individuals who made the significant decisions leading to the end of Plaintiff's

employment. As but one example, personnel files would show whether these individuals have

ever been the subject of a discrimination or retaliation claim, and other potentially relevant

information.

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Patrick 0. Peters, Esq.

Sabrina L. Brown, Esq.

April 5, 2019

Page 7

In Request Number 11, Plaintiff requested any and all documents reflecting the severance

offered to Plaintiff, whether or not it was rejected, including but not limited to any notes,

memoranda, recordings, or email correspondence regarding the approval, agreement or tenns to

offer to Plaintiff. For Request Number 12, Plaintiff sought any documents regarding the

"Severance Arrangements for the Foseco Businesses in the USA" document executed by Plaintiff

and Foseco Metallurgical Inc., including but not limited to any notes, memoranda, recordings, or

email regarding the enforcement of such document. You objected to each request and it is not

clear whether you withheld documents subject to this objection, Please provide a privilege log as

required by Civ.R. 26, both for these requests and all other requests in which you asserted a work

product or attorney-client privilege objection.

With respect to Request Number 13 we requested Defendants produce in native format any

and all job postings, descriptions, or any other documents related to the positions of M&T Director

Steel, China/North Asia; Global Product Director; Global Development Director; and the Special

Projects Director. Please confinn that there are no job postings or job descriptions for these

positions, as none were provided.

In Request Number 16, Plaintiff sought any and all statements, affidavits or other related

documents containing infonnation relating to any of the allegations in this litigation which have

been obtained by you, your agents, attorneys or representatives from any of the persons having

any knowledge of the facts of this case. It is not clear whether you are in possession of statements

or affidavits, because nothing was provided but your response says "see produced documents."

Please clarify.

For Request Number 18, Plaintiff asked for any and all documents relating to any age

discrimination complaint or concerns (including Plaintiff's), whether fonnal or infonnal, written

or verbal, made by any employee of Defendants in the last five (5) years, including but not limited

to notes, memoranda, letters, emails, tapes, and any documents relating to any investigation. Please

see our discussion of Interrogatory No. 16; this infonnation is relevant and discoverable and must

be produced given the allegations in this case.

With respect to Request Number 19, Plaintiff requested all organizational charts that

include any positions held or applied for by Plaintiff at Defendant Vesuvius for the years 2008

through the present. Your production does not include an organizational chart involving the

Special Projects Director. Further, the only two charts you produced appear to be current but you

have not produced any for the full time frame requested. Please supplement with all responsive

charts.

Request Number 21 asked for any insurance policy or indemnification agreement which

may satisfy part or all of any judgment which may be entered in this lawsuit, or which may

indemnify or reimburse for payments made to satisfy any judgment related to the claims asserted

in this lawsuit. As you know, Civ. R. 26(B)(2) entitles us to "the existence and contents of any

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Patrick 0. Peters, Esq.

Sabrina L. Brown, Esq.

April 5, 2019

Page 8

insurance agreement.'' (Emphasis added.) A single declarations page is not sufficient to meet the

producing party's obligation. Painter v. Ju-Lin, E.D. Tenn. No. 08-CV-122, 2010 U.S. Dist.

LEXIS 29845, *3-4 (Mar. 29, 2010) (construing Fed. R. Civ. P. 26's similar provision). Please

produce the entire policy.

In Request Number 23, Plaintiff sought all agreements, assignments, memoranda, notes,

filings, and other documents associated with the merger/acquisition between Vesuvius and Foseco

Metallurgical Inc. in 2008. During our call with the Court, Sabrina said that responsive documents

would comprise "boxes and boxes" of documents. This is surprising, given that merger documents

typically are not so voluminous. Please provide the final, executed documents memorializing the

merger/acquisition in question (e.g., the merger agreement), as well as any publicly filed

documents giving notice of the transaction, as we are not in a position to know where (which

states) to look for such information.

For Request Number 24, Plaintiff requested all documents that support Paragraphs 5, 13,

and 15 of your Affirmative Defenses in your Answer. Please see our discussion oflnterrogatory

Nos. 29-31 and identify by Bates number or ranges what documents you claim actually support

these defenses.

With respect to Request Number 25, Plaintiff asked for all personnel files/applicant

materials for all applicants for the following positions: (1) Global Product Director; (2) Global

Development Director; (3) Special Projects Director. This is, in part, a failure to promote case.

(See Amended Complaint, Count I.) Thus, we are entitled to discovery on the individuals who

actually obtained the jobs in question. Thus, please provide the personnel files for Michael

Chetwyn and Olaf Schulz.

Request Number 26 sought all documents supporting the allegations in Paragraph 13 of

your Answer, in which you state "Plaintiff indicated that it was his intention to only hold the [M&T

Position in China] for the three years, after which he would return to the United States and retire."

Please identify by Bates number or ranges what documents you claim actually support this

statement.

In Request Number 27, Plaintiff sought all documents referenced in, created for, or

otherwise related to the meeting between Christopher Young and Plaintiff in March 2018 in which

severance was discussed. Again, please identify by Bates number or ranges what documents you

claim are responsive to this request.

Finally, there are several produced documents that appear, without explanation, to have

large, blank redactions. Further, Bates No. 000065 appears to be an incomplete production as does

Bates No. 000241. Please let us know whether there are additional pages or information related

to this production.

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56a

Patrick 0. Peters, Esq.

Sabrina L. Brown, Esq.

April 5, 2019

Page 9

Finally, we noticed that you failed to provide residential addresses for the individuals

identified in these requests. We need these addresses to subpoena these witnesses for trial. Please

either produce these addresses now or indicate your agreement to accept service of subpoenas on

behalf of all individuals identified in your Answers.

So that we can satisfy the Court's request for a single written document prior to the

Thursday conference call, please get back to us with your position on these matters by Tuesday,

April 9, 2019.

/'l.ely,

L£~.Moran

JEM:jds

{01304526- l )

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