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Willnerd v. Sybase

November 3, 2010

MARK WILLNERD, AN INDIVIDUAL, PLAINTIFF,
v.
SYBASE, INC., A DELAWARE CORPORATION, DEFENDANT.



The opinion of the court was delivered by: B. Lynn Winmill Chief U.S. District Court Judge

ORDER ON DISCOVERY ISSUES

Before the Court are a number of discovery disputes between the parties in this matter (See Statements, Dkts. 66, 68, 70). The Court conducted informal discovery conferences on October 11, 14, and 15, 2010, in attempts to resolve the disputes. The parties reached tentative agreement on a number of issues, to be memorialized in a stipulation that will be filed by the parties. With respect to the three unresolved issues, the Court requested, and the parties agreed to simultaneously submit, 10 page position statements. Two additional issues were raised in Willnerd's statement, for which the Court requested, and Sybase provided, a supplemental response. Having reviewed the record and the parties' discovery statements, the Court now issues the following order.

DISCUSSION

The five issues now briefed and before the Court are as follows: (1) the scope of Willnerd's 30(b)(6) designations; (2) documents to be produced relative to Willnerd's 30(b)(6) deposition; (3) production of 360 reviews of Sybase employees; (4) Willnerd's responses to questions concerning personal expenses made on his Sybase credit card; and (5) documents to be produced regarding compensation paid to Sybase employees by SAP, a company that recently merged with Sybase.

1. Scope of 30(b)(6) Designation Topics

A. General Immigration Policies, and Sybase Employees Disciplined For Failure to Comply

Sybase indicated its designee will be able to testify about all of Sybase's immigration policies. The designee will also be able to identify Sybase employees disciplined in the last 5 years for failure to comply with Sybase's immigration policies and U.S. immigration law. Willnerd requests no time limitation on this topic, and asks that it include any disciplinary measures taken against those employees for their failure to comply with Sybase immigration policies and U.S. immigration law.

The Court is persuaded that the time limitation proposed by Sybase is appropriate. The probative value of records more than 5 years old on this subject is outweighed by the time and expense required for Sybase to produce the records. The Court will require Sybase to prepare its designee concerning Sybase's immigration policies, and the identities of employees disciplined in the last 5 years for failure to comply with Sybase's immigration policies or U.S. immigration law, as well as the disciplinary measures taken against those employees, if any.

B. Accountability Practices of Sybase Managers

Sybase indicated it will designate a witness to testify regarding Sybase's policies and practices from 2007 to present -- as applied by or to managers whose rank is above Willnerd's, similarly situated to Willnerd, and one rank below -- for ensuring that Sybase follows its immigration policies and U.S. immigration law concerning foreign nationals in the U.S. on Sybase-related business. Willnerd asks that this topic cover those managers two ranks below Willnerd, and include practices with respect to foreign nationals entering the U.S. on non-immigrant visas for temporary employment.

The Court adopts the wording proposed by Sybase, but with the somewhat broader scope identified by Willnerd. The Sybase designee shall be prepared to testify concerning policies and practices from 2007 to present, for ensuring that Sybase's immigration policies and U.S. immigration laws are followed with respect to foreign nationals in the U.S. -- including those entering on non-immigrant visas for temporary employment -- for Sybase-related business. The designee shall be prepared to testify concerning the policies and practices as applied by or to managers similarly situated to, above, and one rank below Willnerd.

C. Government Feedback to Sybase Re Immigration Law

Willnerd asks that the designee address any communication between the U.S. Government and Sybase concerning compliance with immigration law. Sybase contends that a designation of "any communication" is overly broad, and suggests "comments and assessments" from the U.S. Government to Sybase about Sybase's compliance with immigration laws during the past 10 years. The Court agrees that "any communication" is overly broad, and that a restriction to the past 10 years is reasonable. The Court will limit the topic as framed by Sybase. Other topics relating to government documents are addressed below, in the section addressing production of documents for the 30(b)(6) deposition.

D. Sybase Policies Regarding Foreign Nationals and the Visa Waiver Program

Willnerd asks that the designee be able to address Sybase's policies regarding restrictions on the type of work performed by foreign nationals present at Sybase under any program from 2007 to the present. The Court finds this to be an appropriate topic and will allow it; if no such policies exist, the designee can answer accordingly.

Willnerd asks that the designee be prepared to address Sybase's reliance on the Visa Waiver Program for performance of employment-related activities by a foreign national in the U.S. from 2007 to present. The Court understands that the Visa Waiver Program allows citizens of specific countries to travel to the United States for tourism or business for up to 90 days without having to obtain a visa. In Willnerd's letter of termination, Sybase supervisor Terry Stepien cited Willnerd's poor judgment in approving Johannes Alberti to commence work, and approving payment of Alberti's expenses in coming to work for Sybase, before Alberti could do so legally. This bears upon the timing of Alberti commencing work, in relation to his obtaining the right to do so under an approved L-1 visa. Given the focus on the timing of Alberti's work, it would appear that Sybase's policies concerning utilization of a Visa Waiver Program for its employees may bear upon the validity of the reason given for termination. Accordingly, the Court will grant Willnerd's request to question the designee on this topic.

The remaining topics requested by Willnerd mirror the documents he has asked to be produced for the 30(b)(6) deposition, and will be addressed in the next section.

2. Production of Documents for 30(b)(6) Deposition

Willnerd requests a ruling by the Court that directs Sybase to produce the following documents: (1) documents regarding the number of foreign nationals present in the U.S. on non-immigrant visas for work at Sybase, from 2007 to the present; (2) Form I-797s, and Requests for Evidence received by Sybase related to non-immigrant visas allowing foreign nationals to enter the U.S. for temporary employment from 2007 to the present; (3) Notices of Inspections and Form I-9 Audits received by Sybase from 2007 to present; (4) Notices regarding any potential or actual penalties, fines, sanctions or other citations issued by the U.S. Government against Sybase for violations of U.S. immigration law from 2007 to the present; (5) documents regarding Sybase's contention that U.S. immigration law may have been violated on authorization for payment of expenses incurred by Johannes Alberti from December 2007 through January 2008, before he was authorized to work in the U.S.; (6) documents regarding authorization of and approval by the U.S. Government for Johannes Alberti ...


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