Free Joint Case Management Statement - District Court of California - California

Case 3:07-cv-04916-MMC

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JOINT CASE MANAGEMENT CONFERENCE STATEMENT CASE NO. C-05-4979-MMC sf-2436940

LINDA E. SHOSTAK (BAR NO. 64599) [email protected] MARY A. HANSBURY (BAR NO. 191121) [email protected] MORRISON & FOERSTER LLP 425 Market Street San Francisco, California 94105-2482 Telephone: 415.268.7000 Facsimile: 415.268.7522 Attorneys for Defendant NOVARTIS PHARMACEUTICALS CORPORATION THOMAS MARC LITTON (BAR NO. 119985) [email protected] LITTON & GEONETTA, LLP 120 Montgomery Street, Suite 1600 San Francisco, CA 94104 Telephone: 415.421.4770 Facsimile: 415.421.4784

Attorneys for Plaintiff BARBARA SAITO

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO DIVISION

BARBARA SAITO, Plaintiff, v. NOVARTIS PHARMACEUTICALS CORPORATION, DOES 1 TO 20, Inclusive and each of them, Defendant.

Case No.

07 CV 04916 MMC

JOINT CASE MANAGEMENT CONFERENCE STATEMENT

Date Action Filed: August 22, 2007 Date of Removal: Sept. 21, 2007

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ADDITIONAL COUNSEL Additional counsel for Plaintiff Barbara Saito DAVID SANFORD (BAR NO. 457933) [email protected] ANGELA CORRIDAN (BAR NO. 492978) SANFORD WITTELS & HEISLER LLP 1666 Connecticut Ave., NW, Suite 310 Washington, D.C. 20009 Telephone: (202) 742-7780 Facsimile: (202) 742-7776 Attorneys for Plaintiff BARBARA SAITO GRANT MORRIS (926253) [email protected] LAW OFFICES OF GRANT E. MORRIS 1666 Connecticut Ave., NW, Suite 310 Washington, D.C. 20009 Telephone: (202) 742-7783 Facsimile: (202) 742-7776 Attorneys for Plaintiff BARBARA SAITO

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The parties to the above-entitled action submit this Joint Case Management Statement and [Proposed] Case Management Order and request the Court to adopt it as the Case Management Order in this case, pursuant to Federal Rule of Civil Procedure 16 and Civil Local Rule 16-10(b). I. JURISDICTION AND SERVICE OF PARTIES Plaintiff Barbara Saito ("Plaintiff" or "Saito") originally brought this action in the San Francisco County Superior Court. On September 21, 2007, Defendant Novartis Pharmaceuticals Corporation ("Defendant" or "Novartis") timely removed this action to this Court pursuant to 28 U.S.C. § 1441 (diversity jurisdiction pursuant to 28 U.S.C. § 1332(a)). Plaintiff asserts state law claims for: (1) sex discrimination (Cal. Gov't Code § 12940(a)); (2) age discrimination (Cal. Gov't Code § 12940(a)); and (3) retaliation (Cal. Gov't Code § 12940(h)). This Court may exercise supplemental jurisdiction over these claims pursuant to 28 U.S.C. § 1367. This case is at issue. Venue is proper in this District pursuant to 28 U.S.C. § 1391(a). The parties do not believe there are any outstanding issues relating to jurisdiction or service. II. FACTUAL CHRONOLOGY A. Plaintiff's Position regarding Factual Chronology

Plaintiff Dr. Barbara Saito has two advanced degrees, a PharmD and an MBA. Plaintiff began her employment with Novartis in April 1998, as a Business Relations Manager in the Oncology Division after years of experience as a pharmacy director for managed health care plans. Between 1998 and June, 2006, Plaintiff applied for various available positions at Novartis. In April 2001 she applied for the Regional Scientific Director's position in the Oncology Division. Novartis selected a white male instead of Plaintiff. In July 2004, Plaintiff applied for one of two Associate Director of Corporate Accounts positions. In a statement describing these positions, Novartis expressed a preference for candidates who possessed advanced degrees in pharmacology. However, Plaintiff was not selected. Rather, a male and a younger female were selected for the positions. Plaintiff claims that she was the best candidate of all the candidates selected for these positions and that Novartis gave her conflicting and factually inaccurate reasons explaining why she had not been selected for these positions. 1
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In February 2005, Plaintiff applied for the position of Business Relations Manager working with zoledronic acid, a compound that Plaintiff knew well and had worked on for years prior to her application. Novartis never advised Plaintiff whether the position had been filled and what happened to her application. Instead, Plaintiff later learned that the position had been filled by a white male employee. Given the repeated denied applications, and what she considered to be harassment perpetrated by her white male supervisor, Plaintiff filed a complaint of discrimination with the California Department of Fair Employment and Housing ("DFEH") in July 2005. Following the filing of her DFEH complaint, Plaintiff applied for the position of National Accounts Scientific Director. Novartis management denied Plaintiff's application, asserting that Plaintiff lacked sufficient research experience. Novartis management also denied that they discussed false rumors concerning whether Plaintiff was suffering from depression at meetings concerning Plaintiff's application. Plaintiff asserts that at least one Novartis employee informed her that management had discussed Plaintiff's alleged depression at the time Plaintiff's application was being considered by management. At the same time, Plaintiff's white male supervisor, who had previously told Plaintiff she would not be promoted, increased the frequency and intensity of his criticism of Plaintiff's performance. Plaintiff maintains that the criticism was without merit and therefore unfair. In February 2006, Plaintiff's supervisor advised her that she would be placed on a Performance Improvement Plan, despite her satisfactory performance rating. Her supervisor then rejected Plaintiff's request for objective performance measures to gauge her performance, to avoid being put on a PIP. By April 2006, Plaintiff was convinced that she was going to be put on a PIP, despite satisfying or exceeding the same performance requirements that had been placed on her peers, when met with her new manager. Accordingly, on April 28, 2006, Plaintiff announced her retirement instead of facing what she considered further discriminatory disciplinary measures that would damage her professional record. On June 2, 2006, Plaintiff retired. 2
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Defendant's Position regarding Factual Chronology

Defendant contends that its actions with respect to Plaintiff's employment were lawful, and were not motivated in any way by unlawful discrimination or retaliation. Defendant contends that it did not select Plaintiff for the positions she has placed at issue in this litigation due to legitimate, nondiscriminatory, and non-retaliatory reasons. Defendant also contends that it did not deny Plaintiff any training opportunities due to discriminatory or retaliatory animus. LEGAL ISSUES IN DISPUTE At this time, the parties believe the following to be the principal legal issues in dispute. The parties reserve the right to modify or augment the list below. Gender and Age Discrimination (First and Second Causes of Action) (a) (b) (c) Whether Defendant subjected Plaintiff to an adverse employment action. Whether a causal link exists between the protected activity and Defendant's conduct. Whether Defendant's action occurred under circumstances suggesting a discriminatory

motive on the basis of Plaintiff's gender and/or age. (d) (e) Whether Defendant had a legitimate, non-discriminatory reason for its conduct. Whether Plaintiff can establish that Defendant's articulated reason(s) for its conduct

were a pretext for unlawful discrimination based on Plaintiff's gender and/or age. Retaliation (Third Cause of Action) (a) (b) (c) Whether Plaintiff engaged in a protected activity. Whether Defendant subjected Plaintiff to an adverse employment action. Whether a causal link exists between any protected activity that has been

substantiated, and Defendant's conduct. (d) (e) Whether Defendant had a legitimate, non-discriminatory reason for its conduct. Whether Plaintiff can establish that Defendant's articulated reason(s) for its conduct

was a pretext for unlawful discrimination/retaliation.

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IV.

ANTICIPATED MOTIONS There are no prior or pending motions currently before this matter. At this time, Defendant

anticipates it may file a motion for summary judgment and motions in limine. Plaintiff does not anticipate filing any motions at this time. V. AMENDMENT OF PLEADINGS At this time, Plaintiff does not anticipate amending the complaint. VI. EVIDENCE PRESERVATION A. Plaintiff's Position

Plaintiff has taken any and all steps to preserve evidence relevant to the issues reasonably evident in this action. B. Defendant's Position

Defendant has taken steps to preserve evidence, including e-mails, relevant to the issues reasonably evident in this action, including preserving the emails of key employees implicated by Plaintiff's allegations in the complaint, and directing key employees not to destroy, discard or delete any documents or records of any sort (including work papers, calculations, personal notes, e-mails or electronically stored documents or records) that they may have that relate in any way to Plaintiff's employment with Defendant. VII. DISCLOSURES The parties will fully comply with the initial disclosure requirements of Federal Rules of Civil Procedure 26(f). The parties have agreed, given the Christmas and New Years holidays, to exchange initial disclosures on or before January 11, 2008. VIII. DISCOVERY & FRCP RULE 26(f) DISCOVERY PLAN To date, no discovery has been taken or propounded by the parties in this matter. Before exchange of documents, the parties have agreed to enter into a stipulated protective order based on the Court's model form. Further details regarding discovery in this matter are set forth in the parties' separately filed Joint Report Of the Parties' FRCP Rule 26(f) Conference and Discovery Plan, a copy of which is attached hereto as Exhibit B. 4
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IX.

RELATED CASES The parties are unaware of any related cases or proceedings (as defined in Northern District

Local Rule 3-12) pending before another judge of this Court, or before another court or administrative body. X. RELIEF SOUGHT BY PLAINTIFF Plaintiff claims emotional distress and economic damages related to her claims of discrimination and retaliation. Plaintiff also seeks attorney's fees and punitive damages. Plaintiff also seeks injunctive relief requiring Defendant to implement programs designed to remedy past acts of sexual discrimination and prevention of future acts of sexual discrimination. Last, Plaintiff seeks prejudgment and post judgment interest and an award of costs of suit. XI. SETTLEMENT AND ADR The parties have filed a Stipulation and Proposed Order pursuant to ADR L.R. 3-5 and Civil L.R. 16-8, agreeing to participate in Early Neutral Evaluation. The parties have filed ADR Certification Forms pursuant Civil L.R. 1608 and ADR L.R. 3-5. The parties have not engaged in any settlement discussions to date, and have determined such discussions are premature at this time. XII. REFERENCE TO BINDING ARBITRATION, SPECIAL MASTER, OR MAGISTRATE JUDGE OR MDL PANEL The parties do not believe that the case should be referred to binding arbitration, a special master, or a magistrate judge. XIII. CONSENT TO MAGISTRATE JUDGE FOR ALL PURPOSES

20 21 22 XIV. 23 24 25 26 27 28 matter.

Plaintiff previously declined to consent to the Magistrate Judge originally assigned to this

NARROWING OF ISSUES The parties have agreed that it is premature at this time to determine (a) whether there are any

issues that can be narrowed by agreement or motion, or (b) whether either party wishes to bifurcate any issues, claims, or defenses in this matter.

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XV.

EXPEDITED SCHEDULE The parties have agreed that the above-referenced matter is not the type of case that can be

handled on an expedited basis with streamlined procedures. XVI. SCHEDULING The parties have agreed upon the dates set forth in the Proposed Case Schedule, attached hereto as Exhibit A. XVII. TRIAL Plaintiff demands a jury in this case. The anticipated length of trial is approximately ten to fifteen court days, including selection of a jury. XVIII. DISCLOSURE OF NON-PARTY INTERESTED ENTITIES OR PERSONS On September 21, 2007, Defendant filed its Certificate of Interested Entities or Persons. A copy is attached hereto as Exhibit C.

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Dated: December 27, 2007

LINDA E. SHOSTAK MARY F. HANSBURY MORRISON & FOERSTER LLP

By:

/s/ Mary Ferrer Hansbury

Attorneys for Defendant NOVARTIS PHARMACEUTICALS CORPORATION Dated: December 27, 2007 THOMAS MARC LITTON LITTON & GEONETTA, LLP DAVID SANFORD ANGELA CORRIDAN SANFORD WITTELS & HEISLER LLP GRANT MORRIS LAW OFFICES OF GRANT E. MORRIS

By:

/s/ Thomas Marc Litton

Attorneys for Plaintiff BARBARA SAITO

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1 [PROPOSED] CASE MANAGEMENT ORDER 2 3 4 5 6 DATED: 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 8
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The proposed Pre-Trial Case Schedule submitted by the parties as Exhibit A to their Joint Case Management Conference Statement is hereby adopted by the Court as the Case Management Order for the above-referenced case. IT IS SO ORDERED. THE HONORABLE MAXINE M. CHESNEY UNITED STATES DISTRICT JUDGE

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1 2 3 4 5 6 7 8 9 10 11 12 February 27, 2009 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 March 24, 2009 March 31, 2009 March 17, 2009 March 16, 2009 March 3, 2009 March 10, 2009 Date January 4, 2008 January 11, 2008 By April 19, 2008 December 4, 2008 December 15, 2008 February 27, 2009 January 23, 2009 February 27, 2009

EXHIBIT A PROPOSED PRE-TRIAL CASE SCHEDULE Proposed Event/Deadline Case Management Conference (CMC), 10:30 a.m., Courtroom 7 Last Day to Serve Initial Disclosures by Both Parties Last Day to complete Early Neutral Evaluation (ENE) Close of Fact Discovery Last Day to Serve Expert Disclosures by Both Parties Close of Expert Discovery Last Day to File Motions for Summary Judgment Last Day for Hearing on Motions for Summary Judgment Last Day to Make Pre-Trial Disclosures Set Forth in FRCP 26(a)(3) Last Day to Meet and Confer for Joint Pretrial Statement Last Day to File Joint Pretrial Statement, Trial Briefs, Motions In Limine, Deposition and Discovery Responses, Proposed Voir Dire Questions, Jury Instructions, Form of Verdict Last Day for Defendant To Serve (By Hand) An Offer of Judgment on the Adverse Part. Recipient of Offer has 10 days to accept or offer deemed withdrawn. Last Day to File Objections to Motions In Limine, Objections to the Use of Deposition Excerpts or other Discovery Responses, Counter-Designations, Objections to Voir Dire, Proposed Findings, Verdict Forms or to the Authenticity or Admissibility of any Trial Exhibits. Pretrial Conference, 3:00 p.m., Courtroom 7 Trial

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LINDA E. SHOSTAK (BAR NO. 64599) [email protected] MARY A. HANSBURY (BAR NO. 191121) [email protected] MORRISON & FOERSTER LLP 425 Market Street San Francisco, California 94105-2482 Telephone: 415.268.7000 Facsimile: 415.268.7522 Attorneys for Defendant NOVARTIS PHARMACEUTICALS CORPORATION THOMAS MARC LITTON (BAR NO. 119985) [email protected] LITTON & GEONETTA, LLP 120 Montgomery Street, Suite 1600 San Francisco, CA 94104 Telephone: 415.421.4770 Facsimile: 415.421.4784 [see additional counsel on following page] Attorneys for Plaintiff BARBARA SAITO

UNITED STATES DISTRICT COURT 17 NORTHERN DISTRICT OF CALIFORNIA 18 SAN FRANCISCO DIVISION 19 20 BARBARA SAITO, 21 Plaintiff, 22 v. 23 24 25 Defendant. 26 27 28
JOINT REPORT OF THE PARTIES' FRCP RULE 26(F) CONFERENCE AND DISCOVERY PLAN CASE NO. C-05-4979-MMC

Case No.

07 CV 04916 MMC

NOVARTIS PHARMACEUTICALS CORPORATION, DOES 1 TO 20, Inclusive and each of them,

JOINT REPORT OF THE PARTIES' FRCP RULE 26(f) CONFERENCE AND DISCOVERY PLAN Honorable Maxine M. Chesney Date Action Filed: August 22, 2007 Date of Removal: Sept. 21, 2007

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ADDITIONAL COUNSEL Additional counsel for Plaintiff Barbara Saito DAVID SANFORD (BAR NO. 457933) [email protected] ANGELA CORRIDAN (BAR NO. 492978) SANFORD WITTELS & HEISLER LLP 1666 Connecticut Ave., NW, Suite 310 Washington, D.C. 20009 Telephone: (202) 742-7780 Facsimile: (202) 742-7776 Attorneys for Plaintiff BARBARA SAITO GRANT MORRIS (926253) [email protected] LAW OFFICES OF GRANT E. MORRIS 1666 Connecticut Ave., NW, Suite 310 Washington, D.C. 20009 Telephone: (202) 742-7783 Facsimile: (202) 742-7776 Attorneys for Plaintiff BARBARA SAITO

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Pursuant to FRCP 26(f)(2), Plaintiff Barbara Saito ("Plaintiff") and Defendant Novartis Pharmaceutical Corporation ("Defendant"), by and through their counsel of record, hereby submit the following Report of FRCP Rule 26(f) Conference and Discovery Plan. I. RULE 26(f) CONFERENCE

On December 13, 2007, Mary Hansbury (counsel for Defendant Novartis Pharmaceutical Corporation) and Marc Litton (counsel for Plaintiff Barbara Saito) participated in an FRCP Rule 26(f) conference by phone. During the conference, counsel for the parties discussed the subjects set forth in the Court's Standing Order regarding the Contents of Joint Case Management Conference Statement and preparation of the parties' Joint Case Management Conference Statement. II. INITIAL DISCLOSURES

The parties have stipulated and agreed that they will complete the initial disclosures required by FRCP Rule 26(a)(1) on or before January 11, 2008. III. DISCOVERY PLAN

Pursuant to FRCP Rule 26(f)(3), the parties jointly propose to the Court the following discovery plan: A. Protective Order

Before exchange of any documents, the parties have agreed to enter into a stipulated protective order based on the Court's model form. B. Subjects of Discovery

The parties will need to conduct discovery regarding the following subjects: Plaintiff's allegation that she applied for and was denied several positions at Novartis Pharmaceutical Corporation because of her gender and/or age. Plaintiff's allegation that she was denied training opportunities at Novartis Pharmaceutical Corporation because of her gender and/or age. Plaintiff's allegation that was subjected to harassment, disparate terms and conditions of employment, and discriminatory disciplinary procedures because of her gender and/or age and/or complaints about discrimination.

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Plaintiff's allegation that she complained about discrimination and that Defendant retaliated against her for doing so. Plaintiff's allegation that Defendant intentionally engaged in discriminatory practices. Plaintiff's allegation that Defendant failed to take all reasonable steps necessary to protect Plaintiff from discrimination. Whether Plaintiff suffered any economic or other injury as a result of the unlawful conduct of Defendant. Whether Plaintiff has mitigated her damages. Plaintiff will seek information about the qualifications and earnings of employees selected for the positions denied to Plaintiff and other comparative information evidencing disparate treatment and/ or retaliation. Should Plaintiff establish a basis for punitive damages, Plaintiff will also seek financial information concerning Defendant. The parties reserve the right to supplement or modify these categories. C. Discovery of Electronically Stored Information

Before any depositions are taken, the parties have agreed to work together to gather an electronic database of emails pertinent to Plaintiff's allegations ("Electronic Data"). To that end, in early January 2008, the parties will meet and confer regarding: (1) the list of custodians whose emails should be included in the data collection; (2) the relevant time periods to be collected for each such custodian; and (3) a list of key words to use to filter the data. Once the parties have agreed on these items, the Electronic Data will be processed and reviewed by Defendant's counsel for relevancy and privilege, and then produced to Plaintiff's counsel. The parties have agreed to produce e-mails and any electronically stored information on a CD in pdf form. Given the anticipated volume of custodians pertinent to Plaintiff's allegations, and the cost of collecting and filtering the corresponding volume of Electronic Data, the parties are currently discussing the possibility of sharing the cost of the Electronic Data collection/production.

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D.

Depositions and Third-Party Discovery

After the Electronic Data has been produced, Defendant will take Plaintiff's deposition at a mutually agreed upon date. The parties have agreed to extend the maximum duration of Plaintiff's deposition beyond one day of seven hours as permitted by F.R.C.P. 30(d)(2). Defendant may also take other depositions. Upon review of documents produced by Defendant (including the Electronic Data), Plaintiff intends to take the depositions of some of Defendant's managers/employees, after Defendant has taken the deposition of Plaintiff. Plaintiff may also subpoena third parties records and witnesses. In addition, Defendant anticipates issuing third-party subpoenas for production of business records from Plaintiff's current employer, and production of medical records from any physicians from whom Plaintiff has received treatment for the continuing emotional and physical distress alleged in Plaintiff's complaint. Plaintiff may also subpoena third parties records and witnesses. E. Anticipated Privilege/Work Product Issues

At this time, the parties are unaware of any privilege or work product issues with respect to discovery. The parties reserve the right to supplement or modify this section. F. Potential Discovery Disputes

At this time, the parties are unaware of any potential discovery disputes. The parties reserve the right to supplement or modify this section.

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IV.

PROPOSED SCHEDULING ORDER

The parties have agreed to the proposed pre-trial schedule attached as Exhibit A to the parties' Joint Case Management Conference statement.

Dated: December 27, 2007

LINDA E. SHOSTAK MARY F. HANSBURY MORRISON & FOERSTER LLP

By:

/s/ Mary Ferrer Hansbury

Attorneys for Defendant NOVARTIS PHARMACEUTICALS CORPORATION Dated: December 27, 2007 THOMAS MARC LITTON LITTON & GEONETTA, LLP DAVID SANFORD ANGELA CORRIDAN SANFORD WITTELS & HEISLER LLP GRANT MORRIS LAW OFFICES OF GRANT E. MORRIS

By:

/s/ Thomas Marc Litton

Attorneys for Plaintiff BARBARA SAITO

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