By Bill Wichert

Law360 (May 1, 2020, 5:04 PM EDT) -- Sanofi-Aventis is blasting two former company saleswomen for what it calls an assertion that the pharmaceutical giant is using the COVID-19 pandemic to hinder their ability to gather evidence for their New Jersey whistleblower suit, claiming their attorney said he was "too busy" to file a motion seeking a discovery extension.

Noting that the business is working on vaccines and treatments for the virus, Sanofi-Aventis attorney Mark A. Saloman of FordHarrison LLP said in a Thursday certification in state court that any suggestion the company is "somehow using the COVID-19 pandemic to interfere with plaintiffs' ability to conduct discovery (beyond the discovery end date) is beyond belief."

Saloman said he and the company "repeatedly cooperated with and extended every courtesy to" plaintiffs Robyn P. Winter and Wendy Schwartz and their attorney, Eric H. Lubin of Lomurro Munson Comer Brown & Schottland LLC, including by consenting to "a fifth discovery extension which plaintiffs ignored."

"Sanofi has only operated in good faith at all times toward plaintiffs and Mr. Lubin," Saloman said.

On April 22, Lubin cited the challenges facing attorneys amid the crisis as he moved to reopen discovery in the state action, which alleges Winter and Schwartz were fired in retaliation for reporting misconduct by a male coworker. Lubin accused Sanofi-Aventis of having engaged in "improper gamesmanship" to prevent the depositions of company employees Hannah Duffy and Kelly Byrne during the discovery phase of the case.

With attorneys working remotely due to the outbreak, the company moved for summary judgment April 9 by primarily relying on declarations from Duffy and Byrne, Lubin said in a certification.

"The fact that defendant engaged in this conduct during the current crisis, when law firms have shuttered and attorneys are working from home, is simply unfortunate," Lubin said.

But Saloman countered Thursday that the plaintiffs opted to let the discovery period end Feb. 7 after he encouraged Lubin to seek a fifth extension of the original Jan. 15, 2018, deadline.

The plaintiffs sought Duffy's deposition — not Byrne's — and had "ample opportunity" to depose her before she went on medical leave to accommodate spinal surgery, Saloman said in his certification. He said he informed Lubin about Duffy's leave of absence Oct. 21 and consented to the Feb. 7 extension, which the plaintiffs requested and received.

Saloman said he later consented to Lubin's request to extend discovery again to allow for Duffy's deposition. After seeing that the plaintiffs had not filed such a motion, Saloman's co-counsel, Joanna Rich, called Lubin on Jan. 17, Saloman said. Based on Saloman's direction, Rich asked Lubin whether the plaintiffs intended to seek an extension, Saloman said.

"Mr. Lubin's exact response was, 'No, I'm good, but I'll consent if you file a motion' to extend time for discovery," Saloman said.

Salomon called Lubin back that day and "told him plaintiffs must file a motion to extend time for discovery if they wanted to depose Ms. Duffy, who was still out on medical leave of absence," the certification said.

"Mr. Lubin replied he was 'too busy' to file the motion and asked if Ms. Rich or I could file the motion on his behalf," the certification said.

Saloman said he initially offered to have Rich prepare the motion, but soon told Lubin in a Jan. 17 email that she was unavailable and said Sanofi-Aventis would not oppose the motion if Lubin filed one. But Lubin did not respond to that email, contact Saloman or file the motion, "though he still had ample time to do so," Saloman said. The discovery period ended three weeks later.

Winter and Schwartz have claimed they were fired in 2017 for reporting a co-worker's allegedly unlawful activities, including that he was reporting and being paid for hours he didn't work, court documents state. Their suit asserts violations of New Jersey's Conscientious Employee Protection Act and Law Against Discrimination, among other claims.

In seeking summary judgment last month, Sanofi-Aventis relied in part on declarations from Duffy and Byrne. Duffy is a human resources business partner and Byrne is the head of employee relations, according to their declarations.

The declarations assert that Winter, Schwartz and other sales professionals — including the man they allegedly reported on — were terminated in 2017 for "call falsification," meaning recording as a "sales call" an interaction that does not meet the company's definition.

As part of his April 22 certification, Lubin asserted that Duffy's "convenient availability just when defendant needs her certification for summary judgment is transparent; she could have been deposed months ago."

Lubin also claimed Byrne was "never identified as a witness or person with knowledge in the multiple interrogatory questions" from the plaintiffs, and that if her name "does appear in a document, it is a needle in a haystack of thousands of documents that were produced in wholesale by defendant."

But Saloman said Thursday that Duffy being "well enough to read and sign a certification" is "respectfully, hardly comparable to sitting (or standing) for a deposition — which her medical condition and limitations still prevent." Her certification also is based on information "developed long before she commenced her medical leave," Saloman said.

The plaintiffs also were aware of Byrne as a defense witness since at least April 2019, when Sanofi-Aventis turned over documents that identified her, Saloman added. After a subsequent discovery request from the plaintiffs, the company directed them to such documents, he said.

"Hardly a 'needle in a haystack' as plaintiffs portray, Sanofi provided plaintiffs with the exact pages of Sanofi's production which identified specific individuals — including Ms. Byrne — involved with plaintiffs' respective terminations," Saloman said.

Referring to his purported "too busy" remark to Saloman, Lubin told Law360 on Friday that "the reply I will file on Monday will speak for itself, and I note, with all due respect to defendant, the 4-month-old quote defendant attributes to me is one of the only statements not supported by an exhibit and does not reflect my recollection."

Saloman said Friday in a statement, "While we don't comment about the specificity of legal actions, as more fully detailed in our opposition papers, Sanofi US has been forthcoming and collaborative with plaintiffs and their counsel throughout this litigation."

"Moreover, as a global healthcare company whose employees are working every day to discover and develop a test, vaccines, and treatments for COVID-19 — one of the most comprehensive efforts in our industry — plaintiffs' assertion that Sanofi is somehow trying to take advantage of this unprecedented health crisis is an affront to the dedication and innovation of our employees," Saloman added.

Winter and Schwartz are represented by Eric H. Lubin of Lomurro Munson Comer Brown & Schottland LLC.

Sanofi-Aventis is represented by Mark A. Saloman and Joanna S. Rich of FordHarrison LLP.

The case is Robyn P. Winter et al. v. Sanofi Aventis U.S. LLC, case number L-4013-17, in the Superior Court of the State of New Jersey, County of Essex.

--Editing by Abbie Sarfo.

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