SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS ELIMIR PILAZA, Plaintiff, Index No. 506405/2017 -against- FRESENIUS MEDICAL CARE HOLDINGS, INC., FRESENIUS NATIONAL MEDICAL CARE HOLDINGS, INC., SHIEL HOLDINGS, LLC, and RONALD J. KUERBITZ, Individually. Defendants. FIRST REQUEST FOR PRODUCTION OF DOCUMENTS AND THINGS OF DEFENDANTS SHIEL HOLDINGS, LLC AND FRESENIUS MEDICAL CARE HOLDINGS, INC. PLEASE TAKE NOTICE that, pursuant to Article 31 of the New York Civil Practice Law and Rules, Defendants Shiel Holdings, LLC ( Shiel ) and Fresenius Medical Care Holdings, Inc. ( Fresenius ) (jointly, Defendants ), by their attorneys Hogan Lovells US LLP, hereby request that Plaintiff Elimir Pilaza ( Plaintiff ) produce the following documents at the offices of Hogan Lovells US LLP, 875 Third Avenue, New York, New York 10022, within 20 days from the date of service hereof. mean Plaintiff Elimir Pilaza. DEFINITIONS 1. As used herein, the terms Plaintiff, him, he and you refer to and 2. As used herein, the term Complaint refers to and means the Complaint filed by Plaintiff against Defendants in the Supreme Court of New York, Kings County on or about March 31, 2017. 1 of 11
3. As used herein, the term CPLR refers to and means the New York Civil Practice Law and Rules. 4. As used herein, the term document means the original and all copies, including all copies which are different in any way from this original (whether by interlineation, receipt stamp, notation, indication of copy sent or received or otherwise), regardless of location, of all handwritten, typed, printed, photostated, photographed, videotaped, audio-taped, recorded, transcribed, punched, taped, filmed or graphic matter, including any means of recording upon any tangible thing, any form of communication or representation, including without limitation, agreements, correspondence, telegrams, memoranda, records, books, text messages, e-mails, summaries or records of personal conversations, diaries, forecasts, statistical statements, graphs, books of account, ledgers, journals, analytical records, reports and/or summaries of interviews, reports and/or summaries of investigations, opinions or reports of consultants, appraisals, records, reports or summaries of negotiations, contracts, notes, projections, drafts of any documents, working papers, checks (front and back), check stubs or receipts, and any other document or writing of whatever description, including but not limited to any information contained in any computer, whether or not yet printed out, within the possession, custody or control of Plaintiff or Plaintiff s agents. 5. As used herein, the term communication shall mean both oral and written communications. 6. As used herein, the term person shall mean any natural person, corporation, proprietorship, partnership or association, including any officers, directors, employees, agents, or representatives thereof. 2 of 11
7. As used herein, the terms and and or shall be construed conjunctively or disjunctively as necessary to make the request inclusive rather than exclusive. 8. As used herein, the term concerning shall mean regarding, constituting, relating to and/or evidencing. INSTRUCTIONS 1. These requests require the production of documents that are in the possession, custody or control of Plaintiff, including but not limited to those in the possession, custody or control of his agents, representatives or attorneys. 2. Provide an answer to each and every document request contained herein. If no documents responsive to a particular document request exist, or if for some reason responsive documents cannot be produced, the response to that document request should specifically so state. If only a portion of the documents responsive to a particular request are currently available, provide such documents promptly and specifically state when the balance of the responsive documents will be provided. 3. If any document covered by these requests is withheld by reason of a claim of privilege or otherwise, furnish a list identifying the document together with the following information: (1) the date of the document, (2) the name of its author, authors, or preparers identified by title and employment, (3) the name of each person who was sent or furnished with the document, or in any way received or viewed the document, or had custody of the document, together with an identification of each such person by title and employment, (4) a brief description of the document, including the type of document and its general subject matter, (5) a statement of the basis for the claim of privilege or assertion that it is otherwise immune or protected from discovery in sufficient detail so as to permit the Court to adjudicate the validity of 3 of 11
the claim or assertion and, (6) the paragraph of this request to which the document relates. In the case of any document relating in any way to a meeting or any other conversation, all those present (whether or not they were participants) in the meeting are to be identified. 4. Where an objection is made to any request or part thereof, the objection shall state with specificity all grounds for the objection. Any ground not stated in an objection within the time provided by CPLR 3122 will be deemed waived. 5. If any document (or portion thereof) responsive to these requests has been lost or destroyed (or if you believe that may be the case), supply the following information for each such document: (a) the type of document; (b) the subject matter of the document; (c) the contents of the document as fully as they can be recalled or reconstructed after reasonable inquiry; (d) the date of the document; (e) such other information as is sufficient to identify the document, including the author of the document, the recipient of the document, and the relationship between the author and recipient; and (f) the circumstances under which the document was lost or destroyed, including the date on which the document was lost or destroyed, the reason for such destruction, the manner of the destruction, and the identity of the person requesting, authorizing and performing the destruction. 6. The use of singular includes the plural and the use of the plural includes the singular. 7. If any information responsive to these requests is withheld because such information is stored magnetically, electronically, optically or on a computer, state for all such information the subject matter of the information, the place or places where such information is maintained and the custodian thereof. 4 of 11
8. All documents are to be produced in their entirety, without abbreviation or expurgation, including both front and back thereof, and all attachments or other matters affixed thereto. 9. These requests are continuing in character and require further and supplemental responses if plaintiff obtains additional information between the time of initial response and the time of trial. 10. Unless otherwise indicated, the time period for responsive documents is October 2013 to the date of these requests. DOCUMENTS AND THINGS TO BE PRODUCED 1. All documents referenced by Plaintiff in the Complaint, including but not limited to those documents reference in Paragraphs 8, 28, 30 and 35. 2. All documents concerning or constituting formal or informal complaints lodged by Plaintiff with either Defendant relating to any subject, including but not limited to any matter raised or referenced in the Complaint. 3. All documents concerning any charge or complaint of discrimination or retaliation filed by Plaintiff or on Plaintiff s behalf at any time with any court, local, state or federal agency, including but not limited to, all documents that Plaintiff provided to or received from the New York State Department of Human Rights, the Equal Employment Opportunity Commission, or any other local, state or federal agency, office, department or official concerning either Defendant. 4. All documents concerning, or otherwise constituting, communications between Plaintiff and his agents, attorneys or other persons acting on his behalf, on the one hand, 5 of 11
and any local, state or federal agency, on the other hand, that relate to any matters encompassed in the Complaint. 5. All documents concerning any lawsuits, demands for arbitration or government agency claims or charges Plaintiff has filed anywhere in the United States relating to Plaintiff s employment with any company for which Plaintiff has worked, and/or relating to Plaintiff s prospective employment with any company. 6. All statements and/or other documents provided to Plaintiff or to any person Plaintiff or his representatives contacted or interviewed concerning the allegations in the Complaint, and whom Plaintiff intends to call as a witness in the trial of this matter. 7. All statements and/or other documents provided to Plaintiff or to any person Plaintiff or his representatives contacted or interviewed concerning the allegations raised in the Complaint, but whom Plaintiff does not intend to call as a witness at a trial of this matter. 8. All documents concerning any communication between Plaintiff and any employee or representative of either Defendant relating to his allegations in the Complaint. 9. All documents, from October 2013 to the present, constituting notes, memoranda, calendars, appointment books, journals, diaries, records and the like kept or possessed by Plaintiff concerning: (a) the alleged events that relate to his allegations of discriminatory treatment or retaliation; (b) any aspect of employment at Shiel, including his offer letters, positions, titles, compensation, duties, employment policies, employment contracts, disciplinary actions, time off, leaves of absence and hours worked; or (c) discussions or meetings with any current or former employees or representatives of Shiel or Fresenius regarding his claims in the Complaint. 6 of 11
10. Any documents concerning or constituting any claims or complaints, whether formal or informal, of discrimination, retaliation or unfair treatment in the workplace by Plaintiff made with respect to any person or entity other than Defendants. 11. All documents concerning Plaintiff s alleged diabetes and high blood pressure, as alleged in Paragraph 8 of the Complaint. 12. All documents concerning, or otherwise constituting, communications from Plaintiff to either Defendant or any current or former employees or representatives of either Defendant regarding Plaintiff s alleged medical conditions. 13. All documents concerning or that support the allegation at Paragraph 20 of the Complaint that Defendants displayed special treatment towards employees from Guyana. 14. All documents concerning or that support the allegation at Paragraph 20 of the Complaint that Defendants refused to consider similarly situated non-guyanese employees for the same opportunities as Guyanese employees. 15. All documents concerning or that support the allegation at Paragraph 21 of the Complaint that Defendants promoted Guyanese employees who sustained automobile accidents, broke dress code, took vehicles home without consent, were habitually tardy, and who were the subject of complaints. 16. All documents that identify the Guyanese employees referenced in Paragraphs 18, 20, 21, 23 and 33 of the Complaint. 17. All documents concerning or that support the allegation at Paragraph 23 of the Complaint that Mr. Nirajan promoted Guyanese employees after their commission of similar mistakes as Plaintiff. 7 of 11
18. All documents concerning or that support the allegation that Plaintiff regularly worked 50 hours a week but was not paid for overtime, as alleged in Paragraph 26 of the Complaint. 19. All documents concerning or that support the statement that Plaintiff suffers from hypertension and type 2 diabetes, takes prescription medication, and regularly sees a physician, as alleged in Paragraph 27 of the Complaint. 20. All documents concerning or that support the allegation that Plaintiff informed either Defendant of his condition shortly after diagnosis, as alleged in Paragraph 28 of the Complaint. 21. All documents concerning or that support Plaintiff s alleged medical attack on January 7, 2015, as alleged in Paragraph 29 of the Complaint. 22. All documents concerning or that support the allegation at Paragraph 29 of the Complaint that Plaintiff immediately contacted his supervisor to inform him of his physical condition. 23. All documents concerning or that support the allegation at Paragraph 30 of the Complaint that Plaintiff sought medical treatment and could not return to work prior to January 14, 2015. 24. All documents concerning or that support the allegation at Paragraph 33 of the Complaint that Plaintiff witnessed many Guyanese employees take a company vehicle home without any discipline. 25. All documents concerning or that support the allegation at Paragraph 35 of the Complaint that Plaintiff has attempted mitigate his damages. 8 of 11
26. All documents concerning Plaintiff s efforts to obtain employment or other work (including part-time and full-time employment and/or work as an independent contractor or consultant) since January 2015, including but not limited to employment applications, resumes, cover letters or e-mails sent to or received from prospective employers or recruiters, notes, job advertisements, job interviews and any other correspondence with private and public employment and unemployment agencies. 27. All documents concerning all offers or rejections of employment (including part-time and full-time employment or employment as an independent contractor or consultant) Plaintiff has received since January 2015. 28. All documents concerning any employment Plaintiff has had since January 14, 2015, including all documents which relate to the name(s) and address(es) of each employer, the date(s) when Plaintiff began employment, Plaintiff s title(s), salary and other terms and conditions of employment. 29. All documents and information that Plaintiff submitted in connection with his application for New York State unemployment benefits. 30. All documents concerning or that support the allegation at Paragraph 62 of the Complaint that Plaintiff sought a reasonable accommodation of his disability. 31. All documents concerning or that support the allegation at Paragraph 41 of the Complaint that Defendants refused to accommodate Plaintiff s disability. 32. All documents concerning, referring or relating to any professional treatment Plaintiff has received as a result of alleged emotional distress, mental anguish and pain and suffering Plaintiff claims to have suffered as a result of Defendants alleged conduct as set forth in the Complaint. Included with this request are the appropriate HIPAA-Compliant 9 of 11
Authorization for Release of Hospital, Medical, Insurance and Pharmacy Records Pursuant to 45 CRF 164.508 for each and every professional who has treated Plaintiff since October 2012. 33. All documents concerning, or otherwise sufficient to demonstrate, any loss of employment benefits and/or any other injury arising from any alleged acts or omissions on the part of Defendants. 34. All documents concerning or evidencing the facts providing the basis for Plaintiff s claim for compensatory or economic damages, including but not limited to any claims for back pay, front pay, benefits or any other pecuniary loss. 35. All documents concerning or that support the medical health care costs that Plaintiff claims he has incurred as a result of his termination. 36. All documents concerning the income Plaintiff earned from January 1, 2015 to the present. The documents will include without limitation pay stubs from wage, commission and bonus payments made to Plaintiff by any employers; pay stubs relating to wage, commission and bonus payments made to Plaintiff as a result of consulting and/or independent contractor arrangements; unemployment benefits; documents reflecting fees for services rendered or other income documents received through self-employment; IRS Form 1099; W-2 Forms; and all other income-related documents. 37. Plaintiff s federal, state and local income tax returns (including Forms W- 2 and 1099) for the tax years 2014 to the present. 38. All resumes prepared by Plaintiff or on Plaintiff s behalf since January 2015, including, but not limited to, Plaintiff s most recent resume. 39. The resume, curriculum vitae or other written credentials for any expert witness(es) whom Plaintiff has retained at any time in connection with this action. 10 of 11
40. All reports or other written documents prepared by any expert retained by Plaintiff or on his behalf in connection with this action. 41. All documents relied on, considered or reviewed by any expert in creating the report or other written documents produced in response to Request No. 40 above. 42. All documents concerning, or otherwise constituting, any communication with any person regarding the subject matter of this litigation. 43. All documents concerning any and all matters alleged in the Complaint. 44. All documents identified or referred to in Plaintiff s answers to the First Set of Interrogatories of Defendants Shiel Holdings, LLC and Fresenius Medical Care Holdings, Inc. or relied upon or reviewed by Plaintiff or his agents in answering those interrogatories. Dated: New York, New York June 8, 2017 HOGAN LOVELLS US LLP By: /s/ Michael DeLarco Michael DeLarco Leyla Hadi 875 Third Avenue New York, New York 10022 Tel: (212) 918-3000 michael.delarco@hoganlovells.com Attorneys for Defendants TO: Neil M. Frank Frank & Associates, P.C. 500 Bi County Blvd., Suite 465 Farmingdale, New York 11735 (631) 756-0400 nfrank@laborlaws.com Attorney for Plaintiff 11 of 11