UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Hossein Aghamehdi

v. Civil No. 17-cv-700-JD Opinion No.

OSRAM Sylvania, Inc.

O R D E R

Hossein Aghamehdi brings suit against his former employer,

OSRAM Sylvania, Inc., alleging violation of the New Hampshire

Whistleblowers’ Protection Act and wrongful discharge. OSRAM

moves to compel Aghamehdi to provide responses to several

interrogatories and requests for production of documents.

Aghamehdi objects to the motion.

Standard of Review

“Parties may obtain discovery regarding any nonprivileged

matter that is relevant to any party’s claim or defense and

proportional to the needs of the case.” Fed. R. Civ. P.

26(b)(1). When a discovery dispute arises, a party may move to

compel answers to interrogatories and requests for production of

documents.1 Fed. R. Civ. P. 37(a)(3)(B). The moving party bears

1 Under the Local Rules of this District, a party who moves to compel discovery responses “shall file only that portion of the discovery document that is objected to or is the subject of the motion.” LR 37.1(a). OSRAM, nevertheless, filed copies of additional discovery requests and responses. Although OSRAM did not comply with Local Rule 37.1(a), the mistake does not require the motion to be refiled. the initial burden of showing that it seeks relevant

information, and if satisfied, the opposing party then bears the

burden of showing that the discovery request is improper.

Rutledge v. Elliot Health Sys.,

,

,

at *1 (D.N.H. Mar. 7, 2018).

Background

In his complaint, Aghamehdi states that he is a registered

professional engineer with a specialty in mechanical

engineering. He began working at OSRAM in July of 2000 and was

promoted several times thereafter. Beginning in September of

2015, Aghamehdi worked as a product manager in OSRAM’s specialty

lighting group.

As a product manager, Aghamehdi oversaw development and

specifications for the horticultural lighting market. He

reported to Christian Leclerc, general manager of the specialty

lighting group. In February of 2016, Leclerc offered Aghamehdi

the position of product manager for the horticultural lighting

system. He accepted the offer and moved from Erie,

Pennsylvania, to Exeter, New Hampshire.

In December of 2016, Aghamehdi worked with Steve Graves,

who was an executive account manager, to submit a proposal to a

company in Canada. The Canadian company did not accept the

proposal because of the cost. Aghamehdi and Graves then worked

2 to reduce the costs from a third-party installer in an effort to

have the proposal accepted.

Their work on the cost issue involved confidential pricing

information that Graves forwarded to Leclerc and other OSRAM

employees. The confidential information was disclosed to

another installer that was an OSRAM subsidiary. When Aghamehdi

learned that the confidential information had been disclosed to

the subsidiary, he notified Graves that he might have violated

laws pertaining to unfair competition and a restraint of trade.

Aghamehdi also said that the sales team had violated antitrust

laws. The sales team manager agreed that the disclosure

potentially violated the law.

Aghamehdi then worked with Graves to assist a British

Columbia customer with an OSRAM lighting system. Aghamehdi

learned about certain operational adjustments for the lighting

system from his own research and from a Danish customer.

Aghamehdi gave Graves that information and promised to send a

document about the adjustments. Aghamehdi composed the document

from his research on websites and from what he had learned from

the Danish customer and gave it to Graves.

A week later, Leclerc called Aghamehdi about the document,

accusing him of plagiarism. Aghamehdi sent an email to clarify

the sources for his document. Leclerc terminated Aghamehdi’s

3 employment on March 2, 2017, citing plagiarism that was a

serious violation of company policy.

Aghamehdi brings claims for violation of New Hampshire’s

Whistleblowers’ Protection Act (RSA Chapter 275-E) and wrongful

discharge. He contends that he is entitled to reinstatement;

economic losses including wages, benefits, and lost earning

capacity; compensatory damages for emotional distress,

humiliation, inconvenience, and loss of enjoyment of life;

enhanced compensatory damages; and reasonable attorneys’ fees.

Discussion

OSRAM seeks to compel discovery that it contends is

relevant to its affirmative defenses of mitigation of damages

and misconduct based on after-acquired evidence. OSRAM also

contends that Aghamehdi has not provided a sufficient privilege

log to support withholding documents on the basis of privilege.

Aghamehdi objects.

A. Discovery Related to Mitigation of Damages

Aghamehdi’s claims both arise under New Hampshire law. As

is noted above, he is seeking, among other things, economic

losses including wages, benefits, and lost earning capacity.

Under New Hampshire law, “[i]t is well established that a party

seeking damages occasioned by the fault of another must take all

4 reasonable steps to lessen his or her resultant loss.” Grenier

v. Barclay Square Commercial Condo. Owners’ Ass’n,

(2003).

Aghamehdi sought and obtained employment after he was

terminated by OSRAM. OSRAM seeks information about Aghamehdi’s

current employment in Interrogatory No. 17 and Request for

Production No. 20. Interrogatory 17 asked and was answered, as

follows:

17. Identify all jobs that you have held from March 2, 2017 to the present, including the identity of the employer, the position title, the job duties, the dates the position was held, the weekly working hours of the position, the weekly rate of pay, and all other forms of compensation, including but not limited to bonuses, commissions, and the type and amount of all fringe benefits (e.g. health insurance, life insurance, pension, and profit sharing, etc.) and the reasons why any such employment came to an end.

ANSWER: The plaintiff objects to this interrogatory to the extent it is overbroad, unduly burdensome, and seeks information disproportional to the needs of the case. Subject to and without waiver of these objections the plaintiff states as follows:

I was unemployed and searching for work from the date of my termination until April 9, 2018, when I began a consulting position earning $112.00 per hour. On average I worked about 2 days a week in this position. Effective August 13, 2018, I became employed with the company that had hired me as a consultant as a Senior Manufacturing Engineer. In this new position, I am earning $80,000 annual salary, and my benefits include health insurance, a $50,000.00 life insurance policy, and profit sharing.

5 That answer was supplemented in a letter from Aghamehdi’s

counsel on November 2, 2018. Counsel continued to object on the

grounds that the interrogatory was overbroad and that

information about Aghamehdi’s current employer and employment

“has the potential to jeopardize the employee’s current

employment.” Doc. 16-2, at *5. Counsel nevertheless provided

additional information: “As of August 13, 2018, Mr. Aghamehdi

became employed as a Senior Manufacturing Engineer. In this

position he earns $80,000 a year. Please see the attached pay

advice enclosed and BATES stamped P87.” Counsel further

represented: “The plaintiff stated he would produce personnel

documents relevant to damages calculation, which is consistent

with New Hampshire court orders speaking to current-employer

document disclosure.”

Request 20 asked and was answered as follows:

20. Produce all documents identified in your response to Interrogatory 17 or relied upon in responding to Interrogatory 17 regarding employment you have had since March 2, 2017, including but not limited to offer letters, employment contracts, and job position descriptions. We have supplied a blank Authorization for you to complete to respond to this request.

ANSWER: The plaintiff objects to this Request to the extent it is overbroad, unduly burdensome, and seeks information disproportional to the needs of the case. Subject to and without waiver of these objections, the plaintiff states he will forward personnel documents relevant to his damages calculation upon receipt of his personnel file from his current employer.

6 The authorization form provided for Request 20 states, with a

notarized acknowledgement of execution at the end:

AUTHORIZATION TO OBTAIN EMPLOYMENT RECORDS

TO: _________________________________________ (Provide complete name and address of employer)

I, HOSSEIN AGHAMEHDI, hereby authorize you to release to McLane Middleton, Professional Association, c/o Jennifer L. Parent, 900 Elm Street, PO Box 326, Manchester, NH 03105-0326, all information and records regarding my employment with your company, including, but not limited to, records reflecting my compensation, benefits, attendance, and performance.

You may accept a photocopy of this authorization.

_____________________________ Hossein Aghamehdi

Aghamehdi has not provided the personnel documents that he

promised in response to Request 20. The magistrate judge held a

discovery status conference with the parties on November 7,

2018. OSRAM states in the motion to compel that during the

conference OSRAM agreed to accept a certified copy of

Aghamehdi’s personnel file in lieu of serving a subpoena on the

employer. Aghamehdi’s counsel sent a letter dated December 3,

2018, which continued to object to providing information,

including a certified personnel file, from his current employer.

Counsel did provide a copy of the current employer’s letter,

dated June 12, 2018, offering employment to Aghamehdi, with

identifying information redacted. Aghamehdi did not provide the

7 personnel file and continues to assert generally that the

requests are overbroad, unduly burdensome, and are seeking

inadmissible character evidence.

OSRAM contends that Aghamehdi’s responses are incomplete

because he has not provided “all responsive documents to these

requests, including his current employer’s name.” Doc. 16, at

*5. Aghamehdi argues that OSRAM is seeking, improperly,

information about his work performance and character evidence.

Aghamehdi cannot dispute that his claim for damages puts

his subsequent employment earnings and benefits at issue in this

case, making that information relevant for discovery. See

O’Garra v. Northwell Health,

, at *3 (E.D.N.Y.

Jan. 22, 2018); Queen v. City of Bowling Green,

,

at *6 (W.D. Ky. Sept. 29, 2017); Zeller v. S. Cent. Emergency

Med. Servs., Inc.

, at *5 (M.D. Pa. May 20,

2014). In addition, a defendant employer need not rely on the

plaintiff’s own statements about his mitigation efforts.

O’Garra,

, at *3. On the other hand, however, a

request for information to support a failure to mitigate damages

defense must be narrowly tailored to seek specific documents

related to the defense. Id. at *4. For that reason, a request

for the plaintiff’s entire personnel file is overly broad.

Zeller,

, at *6.

8 In this case, OSRAM is entitled to discovery of information

and documents related to the issue of mitigation of damages.

Aghamehdi shall produce the specific information identified in

Interrogatory 17, other than identification of his current

employer. Aghamehdi shall also produce the documents

“identified in your response to Interrogatory 17 or relied upon

in responding to Interrogatory 17 regarding employment you have

had since March 2, 2017, including but not limited to offer

letters, employment contracts, and job position descriptions,”

as asked for in Request 20. Aghamehdi may redact identifying

information about his current employer, and that part of Request

20 for the authorization form is denied.

B. After-Acquired Evidence Defense

OSRAM argues that it is entitled to other information from

Aghamehdi because it is relevant to its after-acquired evidence

defense. To date, the New Hampshire Supreme Court has applied

the after-acquired evidence defense only in breach of contract

cases. McDill v. Environamics Corp.,

(2000).

The court held that “‘after-acquired evidence of employee

misconduct is a defense to a breach of contract action for wages

and benefits lost as a result of discharge if the employer can

demonstrate that it would have fired that employee had it known

of the misconduct.’” ACAS Acquisitions (Precitech) Inc. v.

9 Hobert,

(2007) (quoting McDill,

). The court also explained that “we address only the

propriety of applying the after-acquired evidence doctrine in

cases that do not involve terminations that violate public

policy, such as discrimination or retaliatory discharge.”

McGill,

.

Despite that express limitation, the New Hampshire Supreme

Court also noted that other jurisdictions have applied the

after-acquired evidence doctrine in tort cases but “only to

mitigate an employee’s damages.”

. “The doctrine is

used to limit the employee’s damages to the time between the

wrongful termination and the time the employer discovers the

misconduct, provided the fact finder concludes that the

employee’s misconduct was sufficient to terminate the employee.”

(citing McKennon v. Nashville Banner Pub. Co.,

(1995)). The court concluded that “[w]e believe this

approach is appropriate in tort cases because it properly

balances the employee’s entitlement to a remedy as a result of

the employer’s tortious conduct with an employer’s interest in

lawfully managing its business affairs.”

In response to OSRAM’s motion to compel, the court raised

the possibility of certifying a question to the New Hampshire

Supreme Court about the application of the defense under New

10 Hampshire law. The parties agreed that certification was not

necessary and that that the defense would apply as the New

Hampshire Supreme Court stated in McDill. Because the New

Hampshire Supreme Court relied on McKennon in stating the

standard that would apply in tort cases, this court will also

rely on McKennon and cases that have applied that standard.

“Where an employer seeks to rely upon after-acquired

evidence of wrongdoing, it must first establish that the

wrongdoing was of such severity that the employee in fact would

have been terminated on those grounds alone if the employer had

known of it at the time of discharge.” McKennon,

. When misconduct of that magnitude is proven, the

employee is not entitled to reinstatement or front pay.

. In awarding back pay, which is calculated from termination

to discovery of the severe misconduct, “the court can consider

taking into further account extraordinary equitable

circumstances that affect the legitimate interest of either

party.”

.

In support of the after-acquired evidence defense, OSRAM

propounded the following discovery to Aghamehdi:

Interrogatories

22. Identify all social media accounts (e.g. Twitter, Facebook, Linked In) and email addresses that you have used since September 1, 2015, including the usernames for each social media account and the email addresses.

11 ANSWER: The plaintiff objects to this interrogatory on the grounds that it is overbroad, unduly burdensome, disproportional to the needs of the case, and seeks information that is not relevant to any issue in the case.

24. Identify the person named “Wangli” and describe her relationship with you. ANSWER: The plaintiff objects to this interrogatory to the extent it asks the plaintiff to describe Wangli’s relationship with the plaintiff because to such extent the interrogatory is overbroad, unduly burdensome, disproportional to the needs of the case, and seeks information that is not relevant to any issue in the litigation. Subject to and without waiver of these objections, the plaintiff states as follows: The last I knew, Wangli was a Sales Manager with Zhejiang Dotlighting Co., Ltd., 768# Anchang Road, Kequiao North Industrial Development Zone, Shaoxing City, Zhejiang Province, China.

Requests for Production of Documents

7. For the period of January 1, 2013 to the present, produce all electronic mail messages in your “[email protected]” account (sent to, received by, or copied on) relating to your work for OSRAM, your employment at OSRAM, your separation from employment at OSRAM, your alleged reports of violations of the law by representatives of OSRAM, this lawsuit, and the alleged damages you have suffered and seek to recover in this lawsuit. ANSWER: The plaintiff objects to this Request on the grounds that it seeks documents protected by attorney-client privilege.

8. For the period of January 1, 2013 to the present, produce all electronic mail messages in your “[email protected]” account (sent to, received by, or copied on) relating to your work for OSRAM, your employment at OSRAM, your separation from employment at OSRAM, your alleged reports of violations of the law by representatives of OSRAM, this lawsuit, and the

12 alleged damages you have suffered and seek to recover in this lawsuit. ANSWER: The plaintiff objects to this Request on the ground that it seeks documents protected by the spousal privilege.

9. For the period of January 1, 2013 to the present, produce all documents, electronic mail messages, or other written communications between you and Alicia M. Rainville-Aghamehdi regarding your work for OSRAM, your employment at OSRAM, your separation from employment at OSRAM, your alleged reports of violations of the law by representatives of OSRAM, this lawsuit, and the alleged damages you have suffered and seek to recover in this lawsuit. ANSWER: The plaintiff objects to this Request on the ground that it seeks documents protected by the spousal privilege.

10. For the period of January 1, 2013 to the present, produce all documents, electronic mail messages, or other written communications between you and the e- mail account “[email protected]” relating to your work for OSRAM, your employment at OSRAM, your separation from employment at OSRAM, your alleged reports of violations of the law by representatives of OSRAM, this lawsuit, and the alleged damages you have suffered and seek to recover in this lawsuit. ANSWER: See BATES stamped documents P69 – P70.

11. For the period of January 1, 2013 to the present, produce all documents, electronic mail messages, or other written communications between you and the e- mail account “[email protected]” relating to your work for OSRAM, your employment at OSRAM, your separation from employment at OSRAM, your alleged reports of violations of the law by representatives of OSRAM, this lawsuit, and the alleged damages you have suffered and seek to recover in this lawsuit. ANSWER: The plaintiff does not have possession, custody or control of any documents responsive to this Request.

12. For the period of January 1, 2013 to the present, produce all documents, electronic mail messages, or other written communications between you and the e-

13 mail account “[email protected]” relating to your work for OSRAM, your employment at OSRAM, your separation from employment at OSRAM, your alleged reports of violations of the law by representatives of OSRAM, this lawsuit, and the alleged damages you have suffered and seek to recover in this lawsuit. ANSWER: See BATES stamped P71 – P86.

28. Produce all documents that you took from OSRAM at any time during your employment including, but not limited to, documents relating to your employment and documents relating to your retirement. ANSWER: Objection on grounds that the Request is vague, overbroad and disproportionate to the needs of the case. Subject to and without waiving the objection, the plaintiff did not “take” any documents from OSRAM. To the extent he was [sic] documents related to his employment with OSRAM in his possession, these were provided him in the course of his employment.

1. Standard

Aghamehdi argues in his objection to the motion to compel

that OSRAM has not made a sufficient preliminary showing that he

would have been discharged if he had engaged in the alleged

misconduct and, therefore, that OSRAM’s discovery requests are

irrelevant to the defense. In support, Aghamehdi relies

primarily on Miranda v. Deloitte,

(D.P.R.

2013). He also argues that OSRAM is engaging in an

impermissible fishing expedition to examine his employment

records, his emails, and his social media accounts to find

information to support other grounds for asserting misconduct.

OSRAM contends, in response, that Aghamehdi is imposing the

14 standard for proving the defense which is not applicable to its

discovery requests.

In Miranda, the defendant raised an after-acquired evidence

defense based on its review of the plaintiff’s tax returns and

her deposition testimony and then asked to “announce” a tax

expert to review the returns. Miranda v. Deloitte,

(D.P.R. 2013). The court noted that the defendant

did not have its own theory of the plaintiff’s misconduct but

instead hoped a tax expert would find misconduct to support the

defense.

The court denied the defendant’s motion to

“announce” a tax expert because “the defendants have not named

any alleged misconduct that occurred on the job, or any

employment policy indicating that an employee’s individual tax

return preparation and submission are relevant to or somehow

affect his or her job security.”

Although a defendant cannot be required to prove its

defense in order to be entitled to discovery, the court must be

mindful about the nature of the after-acquired evidence defense

and the potential for abuse during discovery. An overly broad

scope of discovery for this defense would allow employers to

undertake fishing expeditions through an employee’s private

communications, financial records, personnel files, and other

matters looking for evidence of misconduct. See, e.g., Barger

15 v. First Data Corp.,

, at *10 (N.D. Ala. Dec. 14,

2018) (“Federal courts are wary of allowing fishing-expedition

discovery by employers to find evidence of wrongdoing.”)

(internal quotation marks omitted); Alston v. Prairie Farms

Dairy, Inc.,

, at *2 (N.D. Miss. Sept. 26, 2017)

(“Defendant cannot use the after-acquired evidence defense to

conduct extensive discovery into the plaintiff’s prior

employment records on the basis of pure speculation.”) (internal

quotation marks omitted); Miranda, 922 F. Supp. 2d at 15-16.

Such an intrusion and investigation into an employee’s otherwise

private matters could become a deterrent to meritorious civil

rights, retaliation, and whistleblower claims. See Rivera v.

NIBCO, Inc.,

(9th Cir. 2004).

For those reasons, the court has the responsibility imposed

by the Supreme Court to take appropriate measures to prevent

discovery abuses in the context of the after-acquired evidence

defense. McKennon,

. Therefore, an employer is

not entitled to pursue discovery on an after-acquired evidence

defense “in the absence of some basis for believing that after-

acquired evidence of wrong-doing will be revealed.” Walker v. H

& M Henner & Mauritz, L.P.,

, at *1 (S.D.N.Y.

Sept. 12, 2016). An employer must articulate both alleged

misconduct by the employee and a basis in employment policy or

16 agreements for terminating the employee because of that conduct.

Miranda, 926 F. Supp. 2d at 387.

2. Application

OSRAM asserts that Aghamehdi engaged in misconduct while

employed at OSRAM that would have resulted in his termination,

if it had been known. Specifically, OSRAM states in its motion

(1) that Aghamehdi shared confidential and proprietary

information with his wife, (2) that he sent that information

from his OSRAM email account to his personal email account or to

others who were using social media, and (3) that he used this

information for some undisclosed personal reason. OSRAM also

asserts that Aghamehdi had an inappropriate relationship with a

representative of an OSRAM vendor.

a. Policies

OSRAM represents that it has “employee policies and a

handbook related to unauthorized use or disclosure of such

company-owned confidential and proprietary information.” Doc.

16 at 11. OSRAM, however, did not provide copies of or quotes

from company policies or a handbook to show what was prohibited.

Nor does OSRAM provide a basis to believe that violation of

those policies or the handbook would lead to termination.

17 Therefore, discovery about actions that may have violated an

unnamed policy or handbook is not relevant.

b. Agreement

OSRAM also represents that Aghamehdi signed “OSRAM SYLVANIA

Companies Proprietary Rights Agreement” and quotes a part that

pertains to protecting confidential and proprietary information.2

OSRAM asserts that it believes Aghamehdi took confidential or

proprietary information from OSRAM by using his OSRAM email

account to send the information to his personnel email, shared

that information with his wife and others by email and social

media, and used the information for his own purposes. Aghamehdi

argues that OSRAM has not shown enough to support discovery

based on the agreement.

Because OSRAM presumably has access to Aghamehdi’s OSRAM

email account, it should have more than a belief about what

those emails contain. See Walker,

, at *1.

Further, OSRAM does not cite a provision that Aghamehdi would

have been terminated if he violated the agreement. These are

matters within OSRAM’s own knowledge and available information

and do not require discovery to develop. Therefore, OSRAM has

not provided enough to support discovery based on the agreement.

2 Aghamehdi does not deny that he signed the agreement.

18 c. Relationship

OSRAM asserts that it suspects that Aghamehdi “engaged in

an inappropriate, undisclosed relationship with a representative

of an OSRAM vendor.” Doc. 16 at 12. OSRAM further asserts that

“[s]uch an inappropriate relationship would have constituted

grounds for disciplinary action against [Aghamehdi] during his

employment.” Doc. 16 at 12-13.

OSRAM did not provide any factual support for its suspicion

of a relationship. In addition, while OSRAM states that an

inappropriate relationship would have resulted in “disciplinary

action,” it did not cite or quote any company policy, procedure,

or employment agreement to support that assertion. Further,

“disciplinary action” does not necessarily mean termination,

which is the operative event to invoke the defense. Therefore,

OSRAM has not shown that discovery aimed at an “inappropriate

relationship” is relevant to the defense.

d. Disputed Discovery Requests

OSRAM seeks responses to Interrogatories 22 and 24 and to

Requests 7-12, and 20 based on the after-acquired evidence

defense. Because OSRAM has not provided sufficient support for

its asserted after-acquired evidence defense, those requests are

denied.

19 In response to Request 28, Aghamehdi represented that he

did not take any of the documents described but that he does

have documents from OSRAM. Aghamehdi shall produce copies of

all OSRAM documents in his possession, regardless of how they

may have come into his possession.

C. Attorneys’ Fees and Costs

In closing, OSRAM asks the court to “[a]ward OSRAM costs,

including interest and attorneys’ fees incurred in connection

with this motion.” Doc. 16, at 14. OSRAM provides no further

discussion to support its request. Given OSRAM’s limited

success on its motion to compel, an award of attorneys’ fees and

costs is not appropriate. Fed. R. Civ. P. 37(a)(5)(A).

Conclusion

For the foregoing reasons, OSRAM’s motion to compel

(document no. 16) is granted in part and denied in part.

Aghamehdi shall provide to OSRAM:

(1) information requested in Interrogatory 17 that has not

already been provided, excluding the plaintiff’s current

employer’s name;

(2) the documents requested in Request 20 that correspond

to the information provided in response to Interrogatory 17 with

the current employer’s name redacted; and

20 (3) the information requested in Request 28 as is provided

in this order.

The motion to compel is otherwise denied.

Aghamehdi shall provide the responses, as required in this

order, to OSRAM on or before March 8, 2019.

SO ORDERED.

______________________________ Joseph A. DiClerico, Jr. United States District Judge

February 25, 2019

cc: Nicholas F. Casolaro, Esq. Megan E. Douglass, Esq. Benjamin T. King, Esq. Jennifer L. Parent, Esq.

21