Labor & Employment Law Daily Wrap Up, EVIDENCE, DISCOVERY—D. Kan.: Magistrate did not err in compelling production of Thermo Fisher’s Pay Equity Study, (May 30, 2025)

By Kathleen Kapusta, J.D.

The life science and clinical research company claimed, among other things, that the study was protected by attorney-client privilege.

A federal magistrate did not err in concluding that Thermo Fisher Scientific’s former Global Brand Manager timely requested, 10 days before the end of discovery, a Pay Equity Study it commissioned to ensure it “was meeting its pay obligations under the law.” Nor did the magistrate err is determining that the Pay Equity Study was not protected by attorney-client privilege despite the company indicating in a letter to the consulting firm that conducted the study that it was for purposes of securing legal advice or that if it was privileged, Thermo Fisher waived the privilege. Accordingly, a federal court in Kansas overruled the company’s objections to the magistrate’s order compelling production of the study (Spears v. Thermo Fisher Scientific , No. 22-2454-DDC-GEB (D. Kan. May 28, 2025)).

During her 17-year tenure with the company, the African-American employee held various roles, including Operations Supervisor, Regional Product Manager, and Global Brand Manager. She alleged that she applied for various promotions through the years ,but the company instead chose younger, non-Black, less-qualified candidates. She also alleged that the company classified her in a lower pay band than she deserved given her supervisory experience.

Fired. She filed an EEOC charge in November 2021 asserting race, sex, and age discrimination and retaliation. In May 2022, she was placed on a performance-improvement plan. The EEOC issued her a right-to-sue letter in August and two months later, she was fired. She ultimately sued, asserting claims under Title VII, Section 1981, and the ADEA.

Pay study. Meanwhile, the company, in June 2021, commissioned an HR consulting firm to conduct a pay equity analysis to ensure it “was meeting its pay obligations under the law.” The employee’s attorney did not discover the study until late July 2024, 10 days prior to the close of discovery, when she saw it referenced in the company’s annual reports.

On July 31, she emailed the company’s counsel to request the study. That same day, both parties jointly asked the court to extend the discovery deadline until August 23. After the company refused to produce the study, claiming the employee’s request was untimely and the study was privileged, a magistrate judge ordered the company to produce it or file a privilege log. The company filed the log and the magistrate, in a written order, compelled production of the study.

Timeliness. Objecting, the company first argued that the magistrate erred in concluding that the employee timely requested the study 10 days before the discovery deadline because the Scheduling Order required that all discovery “be commenced or served in time to be completed by” that deadline. Though Thermo Fisher relied on the court’s 2019 decision in Escalante v. Lifepoint Hospital, which, in sustaining the defendant’s timeliness objection, emphasized that the plaintiffs “provided no valid justification for a failure to request an extension of the discovery deadline or a request to conduct discovery out of time,” here the parties jointly moved to extend discovery and the court granted their motion. Noting that the magistrate also ordered the company to produce the study by August 26 or file a privilege log, the court found Thermo Fisher had sufficient time to complete production.

Also rejected was the company’s assertion that the magistrate erred when she found the employee’s informal email request for the study was proper. Although the court agreed that the email request was not the preferred approach, the magistrate’s order compelling discovery was an appropriate exercise of her “broad discretion in resolving discovery disputes,” said the court, overruling the company’s objection.

Attorney-client privilege. The company next objected to the magistrate’s conclusion the attorney-client privilege did not protect the study because it was conducted primarily for business, not legal, purposes. In support, Thermo Fisher pointed to the first of two engagement letters sent to the HR consulting company indicating that it retained the consulting company for the purposes of securing legal advice.

The magistrate, however, found it significant that the second letter made no mention of legal advice. She also pointed to Thermo Fisher’s 2022 Corporate Social Responsibility Report, which it published on its website and which referenced the Pay Equity Study’s analysis. That, according to the magistrate, demonstrated that Thermo Fisher conducted the study primarily for business purposes. Indeed, the court observed, the Report states multiple times that “the analysis was done for progressive and equitable purposes for the company as a whole, and ‘to ensure our colleagues receive fair, competitive and equitable pay for their contributions to Thermo Fisher.’”

The court also agreed with the magistrate’s conclusion that two factually similar out-of-circuit cases cited by Thermo Fisher were distinguishable. The company did not commission the study to respond directly to legal complaints or charges against it and multiple sources indicated that the study’s primary purpose was business while only a few suggested it was legal.

Waiver. Finally, the court turned to the magistrate’s conclusion that even if the attorney-client privilege protected the study, Thermo Fisher waived it by publishing some of the study’s analysis and results in the 2022 Report. Disagreeing with the company’s contention that the Report notes “only the broad topics the Study examined,” the court found it instead “reveals exactly what defendant claims it doesn’t: ‘specific data or analysis from the Study[.]’”

Included in the Report, observed the court, is the study’s adjusted pay equity analysis showing that “women earned 98% of the total pay earned by men in similar roles[,]” and that “[r]acially and ethnically diverse colleagues earned 99% of the total pay earned by White/Caucasian colleagues in similar roles.” The Report also includes specific results from the unadjusted median pay analysis. Finding that these statements “reveal more than the underlying facts or the general topic of the study,” and indeed reveal the study’s substance, the court overruled this objection as well.

The case is No. 22-2454-DDC-GEB.

Judge: Crabtree. D.

Attorneys: Kathryn T. Alsobrook (Dysart Taylor McMonigle Brumitt & Wilcox) for Stephanie Spears. Ariel Gutovitz (Jackson Lewis) for Thermo Fisher Scientific.

Companies: Thermo Fisher Scientific

Cases: EvidenceDiscovery PayDiscrimination SexDiscrimination AgeDiscrimination