Ophir v. Koneksa Health Inc

Background

Plaintiff Gol Ophir filed a letter motion seeking an order requiring Koneksa Health Inc. and the other defendants to supplement their discovery responses. The motion involved requests for production (RFPs) and interrogatories.

Compensation and Comparator Discovery

The court granted the request concerning RFPs 5 and 6, which sought documents relevant to Ophir’s compensation. Ophir stated that his employment contract allowed him to sell stock shares when other executives sold shares and alleged that the defendants failed to notify him of those sales. The court held that, if the contract contained the provision Ophir described, information about other executives’ stock sales could show that the defendants functionally restricted his ability to exercise equity options and affected his compensation.

The defendants argued that the complaint did not allege this specific theory of reduced compensation. The court rejected that argument, explaining that Ophir could seek evidence of pay discrimination that may have been unknown to him during his employment and that the complaint alleged differential treatment involving equity grants.

The court also granted the request concerning RFPs 8, 10, 11, 12, 13, and 14 and Interrogatories 3 and 4. These requests sought information about the ages and compensation of members of the Executive Leadership Team and Senior Leadership Team. The court found the information relevant because Ophir alleged a pattern of age-related and compensation-related discrimination and identified members of those teams as possible comparators. The court stated that disputes about whether employees are sufficiently similar to serve as comparators generally do not prevent discovery at the initial stage.

Attorney-Client Privilege and the Incident Documents

The court granted the request concerning RFPs 16, 17, 18, and 23, which sought documents related to an incident in which a female employee was allegedly drugged. Ophir alleged that he was terminated after complaining about the incident, including to Defendant Chris Benko. He sought documents that included communications he sent as Koneksa’s general counsel to outside counsel for legal advice and a memorandum from outside counsel.

The defendants asserted attorney-client privilege, which generally protects confidential communications made to obtain or provide legal advice. Ophir did not dispute that the materials were privileged but argued that the defendants waived the privilege by failing to move promptly to seal the complaint after it disclosed the communications.

The court found that the complaint described the substance of legal advice provided through Ophir in his role as general counsel. Because the complaint was filed on October 17, 2023, and defense counsel first appeared on October 20, 2023, the court found the defendants’ failure to object for more than six months to be inadvertent but concluded that their arguments against waiver were unpersuasive. The court limited the waiver based on the circumstances and fairness. The waiver applied to privileged communications related to the incident that were substantively described in the complaint, but not to other privileged communications that were not substantively described. The defendants were ordered to produce responsive communications for which privilege had been waived under the order.

Interrogatory 7 and Disposition

The court denied, without prejudice to renewal, the request to compel a supplemental response to Interrogatory 7. That interrogatory asked the defendants to identify every person over whom Ophir had supervisory authority during his employment. Ophir’s motion instead described the interrogatory as seeking the identities of people who supervised him. The court found the relevance of information about Ophir’s direct reports unclear and noted the defendants’ representation that they had already produced organizational charts showing those direct reports.

Judge Dale E. Ho ordered the defendants to supplement their responses as described above and directed the Clerk of Court to close the motion at ECF No. 30.