By: Ty Hyderally, Esq, Jennifer Vorih, Esq., and Adela Barbura

In the realm of employment litigation, there are times when the courts favor individuals who have been retaliated against and ultimately terminated, compelling multinational corporations to cooperate with discovery and bear the associated costs. In a recent David vs. Goliath case, Willson v. Gerber Prods. Co., N.J. Super. Unpub. LEXIS 2393 (Super. Ct. App. Div. Dec. 26, 2023), the New Jersey Superior Court ordered a multinational corporation to bring an upper-level manager of a related corporation from Switzerland to New Jersey for an in-person deposition, and even to bear the associated costs.

Plaintiff Denise Willson (“Willson”) brought an action against Defendants Gerber Products Company (“Gerber”), Nestlé Healthcare Nutrition, Inc., doing business as Nestlé Health Science (Nestlé Health), Nestlé Holdings, Inc. (Nestlé Holdings), and William Partyka (“Partyka”), the President and CEO of Gerber and plaintiff’s former direct supervisor (“hereinafter collectively referred to as Defendants”), alleging age and gender discrimination, along with unequal pay and retaliatory termination in violation of the New Jersey Law Against Discrimination (“LAD”), N.J.S.A. 10:5-1 to -49. Willson did not include as a defendant either Defendant Partyka’s supervisor, Alexandre Costa (“Costa”), or Costa’s employer, Nestlé Enterprises S.A.

In her complaint, Willson alleged that Defendant Partyka “fostered and promoted a male ‘boys club’ culture,” where he was “promoting and rewarding male employees over female employees,” and “paying senior level male employees more than their female counterparts.” Willson, N.J. Super. Unpub. LEXIS 2393 at *3-4. After Willson turned sixty-three, Defendant Partyka denied her consideration for a well-deserved promotion and ultimately gae the position to a “less qualified younger male employee.” Id.

Willson had complained to upper managers, including Costa, about discrimination, and believed that she was retaliated against and ultimately terminated because of her complaints. She alleged that Costa and other “upper-level managers were aware of the hostile work environment.” Id. at *4. Willson alleged that she met with Costa and informed him of the Defendants’ sex discrimination, failure to promote her, and retaliatory termination. Costa confirmed that this meeting occurred, but denied having “any discussion” with Willson about “retaliatory conduct, sex discrimination, or failure to promote.” Id. at *6. Costa claimed the meeting was held to discuss “the progress of the [m]edical and [i]nfant [f]ormula sales force that [Willson] led.” Id. at *6-7 (internal quotation marks omitted).

Willson sought to depose Costa in person in New Jersey, to obtain his testimony about this meeting. Defendants objected, claiming that Costa had “limited knowledge of the matter,” and also claimed that “because Costa was a Swiss resident, any deposition must comply with Swiss law and the Hague Convention.” Id. at *2. Costa also attested that he had “limited interaction with [p]laintiff as she was not one of his direct report[s].” Id. at *6 (internal quotation marks omitted). According to Costa, “forc[ing him] to sit for a deposition … [would] unnecessarily interfere with [his] employment” and “create a tremendous burden on [his] business.”’ Id. at *7.

On November 18, 2022, the trial judge “order[ed] defendants to produce Costa in New Jersey [for an in-person deposition] at defendants’ expense.” Id. at *9. The trial judge found “no showing . . . that requiring a single executive of a large organization to appear for a deposition would be unduly burdensome or would interfere with the operation of his direct employer or the enterprise as a whole.” Id. The trial judge further reasoned that the deposition request was not directed at Costa, but rather at Defendants, who are “entities that are subject to the [c]ourt’s jurisdiction and that are required to respond to . . . [p]laintiff’s legitimate discovery demands.” Id. at *10.

Defendants appealed the November 18, 2022, order, arguing that “compelling Costa’s appearance without compliance with Swiss law violates Swiss law and the Hague Convention,” but the Appellate Division affirmed the trial court’s ruling. Id. The Appellate Division highlighted that “there is ample precedent for ordering a deposition to occur outside of Switzerland without offending foreign judicial sovereignty.” Id. at *15.

The Appellate Division noted that the United States Supreme Court had “expressly rejected the notion that the Hague Convention’s discovery procedures control the discovery of foreign litigants before an American court.” Id. at *13-14 (citing Société Nationale, 482 U.S. at 529). The Court stressed that “[a]n interpretation of the Hague Convention as the exclusive means for obtaining evidence located abroad would effectively subject every American court hearing a case involving a national of a contracting state to the internal laws of that state.” Société Nationale, 482 U.S. at 539.

In a previous New Jersey case, D’Agostino v. Johnson & Johnson, the Appellate Division stressed that, “[t]he mere fact that a person requested for deposition is a busy executive is not enough to bar that person’s examination.” 242 N.J. Super. 267, 278, 576 A.2d 893, 899 (Super. Ct. App. Div. 1990). Relying on this precedent, the Superior Court in Willson v. Gerber Prods. Co. found Willson’s request to depose Costa in New Jersey as “[not] unduly burdensome” because it would not “interfere with the operation of his direct employer or the enterprise as a whole.” Willson, N.J. Super. Unpub. LEXIS 2393 at *9.

This case serves as a huge win for plaintiffs seeking to compel large corporations to comply with discovery demands. The ability for plaintiffs to pursue discovery from large corporations is a critical element of ensuring a fair and comprehensive legal process. Discovery, including depositions, is a crucial mechanism, allowing plaintiffs to gather essential evidence to support their claims against seemingly formidable entities.

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