Gerber Must Bring Witness to New Jersey to Testify in Discrimination Lawsuit

A recent decision from the New Jersey Appellate Division affirms a trial court’s order requiring Gerber Products Company to bring a witness from Switzerland to New Jersey, at Gerber’s expense, to testify at a deposition in a discrimination lawsuit.  A deposition is a formal interview under oath used to obtain testimony from witnesses in lawsuits.

Denise Willson is a former Vice President of Medical Sales North America for Nestlé Infant Nutrition.  Ms. Willson sued Gerber Products Company, Nestlé Healthcare Nutrition, Inc., Nestlé Holdings, Inc., and Gerber’s President and CEO, William Partyka, alleging they discriminated against her because of her age and gender.  More specifically, she claims they fostered a “boys club” culture, paid her less than her younger male peers, denied her a promotion to the position of general manager, and ultimately fired her in retaliation for her complaints about the discrimination in violation of the New Jersey Law Against Discrimination (“LAD”).

As part of her lawsuit, Ms. Willson alleges she spoke to Mr. Partyka’s supervisor, Alexandre Costa, about the retaliatory termination, gender discrimination and Gerber’s failure to promote her.  When Ms. Willson’s lawyers sought to take Mr. Costa’s deposition, the defendants objected. They argued that Mr. Costa lives in Switzerland, claims his meeting with Ms. Wilsson was about sales rather than her allegations of discrimination and retaliation, denies he was involved in the decision to terminate her employment or has any other information pertinent to her case, and that requiring him to come to New Jersey for his deposition supposedly would “create a tremendous burden on [his] business.”  The defendants also argued that neither Mr. Costa nor his employer, Nestlé Enterprises S.A., is a party to the lawsuit.

In November 2020, the trial court judge ordered the deposition to take place.  However, due to the COVID-19 protocols at the time, the judge ordered that the deposition would take place remotely.

Since the parties were unable to agree on the terms of Mr. Costa’s remote deposition, Ms. Willson eventually asked the trial court judge to reconsider his order, and to instead require Mr. Costa to attend his deposition in person in New Jersey.  In November 2022, the judge agreed with Ms. Willson and ordered the defendants to bring Mr. Costa to New Jersey for his deposition, at the defendants’ expense.

The defendants appealed, arguing that the trial court’s order violates Swiss law and the Hague Convention, an international agreement that allows courts to obtain evidence in another country if both countries are signatories to the Hague Convention.  The United States and Switzerland are both signatories to the Hague Convention.

In Willson v. Gerber Prods. Co., the Appellate Division rejected the defendants’ arguments that the trial court’s order violated Swiss law or the Hague Convention.  Instead, it concluded that balancing the relevant factors favored requiring the deposition to take place in New Jersey.  Those factors include:

1. The “relative financial burdens of the parties to the litigation”;
2. A “sufficiently close relationship” between the corporations to establish control over the witness;
3. Whether “taking depositions in New Jersey would result in a substantial disruption of the proposed deponents’ lives and work”; and
4. The inability of the plaintiff to take depositions in Switzerland where the witnesses is located.

Accordingly, the Appellate Division affirmed the trial court’s ruling that the defendants have to bring Mr. Costa to New Jersey for his deposition at the defendants’ expense.