govinfo:USCOURTS-ohsd-1_22-cv-00312-5

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IN THE UNITED STATES DISTRICT COURT 
FOR THE SOUTHERN DISTRICT OF OHIO 
WESTERN DIVISION 
 
NILESH SHAH, 
Plaintiff, 
v. 
FORTIVE CORPORATION, et al., 
Defendants. 
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Judge Jeffery P. Hopkins 
 
 
OPINION AND ORDER 
 
 As one court observed, “[l]itigation is not a game. It is the timehonored- method of 
seeking the truth, finding the truth, and doing justice.” 1 Before the Court is Defendants’ 
Fortive Corporation, Advanced Sterilization Products, Inc., and Advanced Sterilization 
Products Services, Inc. (collectively, “Defendants”) 2 Motion to Strike (Doc. 94) (the 
“Motion”) the declarations of two of Defendants’ former employees offered by Plaintiff 
Nilesh Shah (“Plaintiff” or “Mr. Shah”) in support of his Motion for Partial Summary 
Judgment (Doc. 77) against Defendants. Mr. Shah filed a response opposi ng (Doc. 101) the 
Motion to Strike to which Defendants replied (Doc. 105). The Court heard oral argument in 
this matter o n April 22, 2026, and took the Motion to Strike (Doc. 94) under advisement. 
Notation Order, 4/22/26. 
 
1 Haeger v. Goodyear Tire & Rubber Co., 793 F.3d 1122, 1126 n.1 (9th Cir. 2015) (quoting Haeger v. Goodyear Tire 
& Rubber Co., 906 F. Supp. 2d 938, 941 (D. Ariz. 2012)). 
2 Defendants Fortive Corporation, Advanced Sterilization Products, Inc., and Advanced Sterilization 
Products Services, Inc. are collectively referred to as “Defendants” in this Opinion and Order. Separately, 
Fortive Corporation is referred to as “Fortive”; Advanced Sterilization Products, Inc. as “ASP”; and 
Advanced Sterilization Products Services, Inc. as “ASPS.” Defendants ASP and ASPS are both wholly 
owned subsidiaries of Defendant Fortive. See Am. Compl., Doc. 37, ¶ 8; Ivankovich Decl., Doc. 75, ¶ 2; 
Doc. 78, PageID 1023. 
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The Motion to Strike and the opposition to it reflect the parties’ competing efforts to 
use the discovery and evidentiary rules to shape the record in the manner most advantageous 
to them but in so doing push the boundaries of those rules. Mr. Shah attempts to supplement 
the record with new declarations of key witnesses filed ; Defendants respond by moving to 
strike those declarations and by submitting a new declaration of their own from one of the 
witnesses. However, the Federal Rules of Evidence and Civil Procedure do not dictate such 
a restrictive approach and the Court declines to adopt one here. Accordingly, for the reasons 
provided below, Defendants’ Motion to Strike (Doc. 94) is DENIED. 
I. BACKGROUND 
This case arises from an employment contract dispute between Mr. Shah and 
Defendants, his former employers. See Am. Compl., Doc. 37. Mr. Shah alleges in the 
Amended Complaint that Defendants are obligated to cover his foreign tax liabilities incurred 
while he was working for Defendants as an expatriate in Singapore. Id. ¶¶ 21–22. During 
discovery, Mr. Shah identified former executives Aliza Scott (“Ms. Scott”) and Dominic 
Ivankovich (“Mr. Ivankovich”) as persons who possessed information relevant to those 
allegations. Ds.’ Ex. 1, Doc. 105- 1, PageID 325 3–54. On September 11, 2024, Mr. Shah 
served his initial disclosures and identified Ms. Scott, ASP’s former Vice President of Human 
Resources, and Mr. Ivankovich, ASP’s former President, as persons likely to have 
“discoverable information” that he would use “to support his claims and defenses, including 
. . . information regarding Defendants’ breaches of express and/or implied contracts . . . and 
the resulting emotional distress and damages suffered by Plaintiff.” Id. Consistent with that 
disclosure, Mr. Shah later identified Ms. Scott and Mr. Ivankovich in his Disclosure of Lay 
Witnesses (Ds.’ Ex. 3, Doc. 105- 3) filed on February 24, 2025, and in his Responses to 
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Defendant Fortive Corporation’s First Interrogatories and Requests for Production (Ds.’ Ex. 
2, Doc. 105-2), listing each as lay witnesses “who may testify at the trial” and stating that they 
“may have information regarding Defendants’ breaches of contract . . . and the impact they 
had on Plaintiff.” Ds.’ Ex. 3, Doc. 105-3, PageID 3281; Ds.’ Ex. 2, Doc. 105-2, PageID 3261. 
During this litigation, Mr. Shah disclosed and then produced declarations he had 
obtained from Mr. Ivankovich and Ms. Scott to Defendants.3 Ds.’ Ex. 1, Doc. 94-1, PageID 
3051–54. Importantly, for determining the outcome in this dispute, Ms. Scott and Mr. 
Ivankovich both testified in their respective declarations that they were directly involved in 
negotiating the terms of Mr. Shah’s 2019 employment letter, central to the dispute in this 
litigation. Ivankovich Decl., Doc. 75, ¶¶ 6, 11; Scott Decl., Doc. 76, ¶ 3. Important, here, also, 
Mr. Ivankovich avers that he and other senior leaders negotiated the tax assistance provisions 
personally with Mr. Shah to ensure that he would not be placed in a worse position financially 
by virtue of working in Singapore, and that the “agreed-upon tax terms” were drafted in order 
to protect Mr. Shah from double taxation on his income. Ivankovich Decl., Doc. 75, ¶¶ 8, 10. 
Adding to the narrative, Ms. Scott’s testimony in her declaration went further to state that “as 
part of Nilesh’s compensation,” an agreement was made that “ASP would pay the income 
taxes [Mr. Shah] would owe to Singapore, while [Mr. Shah] would be responsible for paying 
the income taxes he would owe to the U.S.” Scott Decl., Doc. 76, ¶ 5. 
 
3 The relevant dates are as follows. The Court’s Scheduling Order (Notation Order, 10/03/2025) set December 
15, 2025, as the discovery deadline. Mr. Shah’s counsel obtained Mr. Ivankovich’s declaration on December 
15, 2025, and produced it to Defendants on January 9, 2026. Ivankovich Decl., Doc. 75, PageID 983; Ds.’ 
Ex. 1, Doc. 94-1, PageID 3051. He obtained Ms. Scott’s declaration on January 14, 2026, and presented it 
to Defendants that same day. Scott Decl., Doc. 76, PageID 989; Ds.’ Ex. 1, Doc. 94-1, PageID 3053; Doc. 
100, PageID 3152. Both declarations were filed on the docket on January 14, 2026. Docs. 75, 76. It also bears 
noting that Plaintiff’s Motion for Partial Summary Judgment (Doc. 77) and Defendants’ Motion for 
Summary Judgment (Doc. 83) were filed on January 14, 2026, the same day that Mr. Shah filed the 
declarations of Ms. Scott and Mr. Ivankovich. As of this Opinion and Order , those summary judgment 
motions (Docs. 77, 83) are currently pending before the Court. 
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In the Motion to Strike (Doc. 94) currently under review , Defendants oppose the 
introduction of any of the evidence from both declarations for three separate reasons. First, 
Defendants argue that Plaintiff’s counsel violated procedures purportedly adopted by this 
Court governing ex parte contact with a former employee of an opponent. Doc. 94, PageID 
3043. In essence, Defendants claim that Mr. Shah was required to provide them with written 
notice before obtaining the declarations of its former employees so that Defendants could give 
informed consent but failed to do so in violation of the procedures purportedly adopted by 
the Southern District of Ohio. Id. at PageID 3043–44. Second, Defendants contend that Mr. 
Shah also failed to timely disclose the declarations during the discovery period, which closed 
on December 15 , 2025. Id. at PageID 3045; Notation O rder, 10/3/25. Lastly, Defendants 
argue that the declarations constitute inadmissible hearsay and are irrelevant because neither 
declarant had authority to speak on behalf of Defendants’ legal department regarding complex 
tax matters. Id. at PageID 3045–46. 
In addition to other documents, Defendants attached to the Motion to Strike (Doc. 94) 
a second declaration from Mr. Ivankovich. Ivankovich Decl., Doc. 94 -2. In the second 
declaration proffered by Defendants, Mr. Ivankovich states, among other things, that 
Plaintiff’s counsel failed to warn him not to r eveal privileged information and that the 
expatriate provision in Mr. Shah’s letter was not intended to provide a “tax windfall” to Mr. 
Shah. Id. ¶¶ 6, 8, 9. Mr. Ivankovich also makes clear in t he second declaration that he “did 
not view Shah’s two page, 2019 offer letter as an employment contract.” Id. ¶ 9 (“The desire 
of the 2019 offer letter was to assist [Mr.] Shah to be in no worse financial position as it related 
to his tax returns by virtue of working in Singapore. There was no intent, per the offer letter 
or otherwise, for [Mr.] Shah to receive a tax windfall by virtue of his employment . . . [t]here 
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was also no intent, per the offer letter or otherwise, for ASP to pay all of Shah’s taxes.”). In 
his response opposing the Motion to Strike (Doc. 101), Mr. Shah argues strenuously that the 
controlling authority permits ex parte contact with former employees, that the declarations 
were not untimely , and that the declarations contain admissible testimony based on the 
witnesses’ personal knowledge. Doc. 101. Defendants filed a reply (Doc. 105), and the matter 
is now fully briefed and ripe for decision. 
II. LAW AND ANALYSIS 
The Court will address in turn each of the three arguments Defendants have advanced 
in support of the Motion to Strike (Doc. 94) the declarations of Mr. Ivankovich (Doc. 75) and 
Ms. Scott (Doc. 76) to wit: (1) Plaintiff’s counsel engaged in improper ex parte contact with 
former employees without following required consent procedures; (2) Mr. Shah’s counsel 
untimely disclosed the declarations outside of the agreed upon Rule 26(f) discovery period; 
and (3) Ms. Scott and Mr. Ivankovich’s declarations include inadmissible hearsay and are 
irrelevant. 
1. Ex Parte Contact with Former Employees 
Initially, Defendants contend that Ms. Scott and Mr. Ivankovich’s declarations should 
be stricken on the basis that Plaintiff’s counsel failed to comply with this District’s informed 
consent procedures when wanting to obtain declarations from the company’s two former 
high-level employees. Doc. 94, PageID 3043. It is important to note at the outset that both 
Ms. Scott and Mr. Ivankovich are former , not current employees of Defendants. In 
Defendants’ view, however, Mr. Shah’s counsel still improperly conducted ex parte interviews 
with them by failing to provide notice to Defendants about the interviews and by not warning 
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Ms. Scott and Mr. Ivankovich against disclosing privileged information during the interviews. 
Id. at PageID 3043–44. 
To support this contention, Defendants rely principally upon a magistrate judge’s 
decision in a case called Summers v. Rockwell Int’l Corp., No. C292301, 1993 WL 1480622, at 
*4 (S.D. Ohio Apr. 9, 1993). In Summers, an environmental contamination case, the plaintiffs 
“raised the issue of their ability to communicate directly with current or former employees of 
[the] defendant” who may have had information pertaining to hazardous substances being 
released from the company’s plant. Id. at *1. When confronted with similar facts as those 
presented here , the magistrate judge presiding over the Summers case imposed specific 
procedures upon the attorneys involved in that litigation in order to assist the parties during 
discovery when conducting ex parte interviews with the company’s former employees. Id. at 
*4–5. Those procedures required, among other things, that counsel seeking the deposition 
provide the former employee with a one-page written notice advising them that litigation was 
pending, that the interview was voluntary, that the defendant company was represented by 
counsel, that the former employee could contact defendant’s counsel for further information 
or retain separate counsel, and that the deponents could not reveal privileged attorney client 
communications. Id. 
Defendants argue strenuously that the se requirements are the established procedures 
of the Southern District of Ohio based upon the magistrate judge’s decision in Summers. Doc. 
94, PageID 3043. They, however, are not. Summers makes clear that the notice requirements 
used in that matter were case-specific guidelines proposed by the magistrate judge which the 
parties in that litigation specifically agreed to follow. Summers, 1993 WL 1480622, at * 3 
(explaining that the guidelines implemented “were suggested to plaintiffs in th[e] case, and 
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they . . . agreed to them”). At best, Summers offers guidance for courts grappling with similar 
discovery issues, but in no way establishes a blanket policy, rule, or procedure of this Court 
governing all cases when a party opponent of a comp any seeks to engage in ex parte 
communications with a former employee of the company. 
 Rather, courts in this District look to the Ohio Rules of Professional Conduct to 
address matters concerning attorney communications with former employees . See Davis v. 
Washington Cnty. Open Door Home, No. C-2-98-636, 2000 WL 1457004, at *5 (S.D. Ohio Sept. 
21, 2000); United States v. McCurdy , No. 1:24 -cr-184-1, 2026 WL 352868, at *2 (N.D. Ohio 
Feb. 9, 2026) (“There are no established federal rules of professional conduct . . . Instead, 
federal courts look to state rules of professional conduct.”); Johnson v. Ohio Dep ’t of Youth 
Servs., 231 F. Supp. 2d 690, 692 (N.D. Ohio 2002) (citation omitted); United States v. Beiersdorf-
Jobst, Inc., 980 F. Supp. 257, 261 (N.D. Ohio 1997); see also S.D. Ohio Civ. R. IV(B)4. 
As this Court reads Rule 4.2 of the Ohio Rules of Professional Conduct 5, the one 
applicable to these proceedings, it prohibits a lawyer, when representing a client, from 
communicating about the subject matter of the representation with “a person the lawyer knows 
to be represented by another lawyer in the matter” without that lawyer’s consent. Prof. Cond. 
Rule 4.2. By its terms, Rule 4.2 protects represented parties. On its face, the Rule does not bar 
counsel from speaking with unrepresented former employees of a company. This interpretation 
 
4 The local rule, S.D. Ohio Civ. R. IV(B), states, in relevant part: “The Rules of Professional Conduct adopted 
by this court are the Rules of Professional Conduct adopted by the highest court of the state in which this 
Court sits, as amended from time to time by that state court, except as otherwise provided by specific Rule 
of this Court after consideration of comments by representatives or bar associations within the state.” S.D. 
Ohio Civ. R. IV(B). Because this Court sits in Ohio, it applies the Ohio Rules of Professional Conduct in this 
Opinion and Order. 
5 See Rule 4.2, Ohio Rules of Professional Conduct (eff. Feb. 1, 2007, as amended eff. Jan. 1, 2026). 
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is consistent with the view s expressed in the advisory opinions of the Ohio Board of 
Professional Conduct. Sup. Ct. of Ohio Bd. of Prof’l Conduct, Op. 2016-5 (Aug. 5, 2016). 
In Advisory Opinion 2016- 5, the Board stated the following about contact with a 
former employee of a corporation by attorneys representing a party suing that corporation: 
Once a management employee has left the corporation, he or she no longer supervises, 
directs, or consults with the corporation’s lawyer and cannot obligate the organization. 
Former employees cannot bind the organization and their statements cannot be 
introduced as admissions of the organization. Geoffrey Hazard, Jr. & W. William 
Hodes, The Law of Lawyering, Sec. 38.7 (3d ed. Supp. 2011). Similarly, under the law 
of agency, the former management employee is no longer acting on behalf of the 
organization. See Mich. Op. RI-360 (2013). Consequently, a lawyer may communicate on 
the subject matter of the representation with any former and unrepresented corporate employees, 
including those in management, without notification or consent of the corporate lawyer. 
 
Doc. 100, PageID 3165–66 (emphasis added) (“This conclusion is supported by the 
distinction between current and former employees . . . thus clarifying that a lawyer’s 
communication is permitted with former employees, even those whose prior act or omissions 
may eventually be imputed to the corpora tion.”). The Board further explained that, because 
former employees “cannot bind or obligate the organization” and because “their statements 
cannot be introduced as admissions of the organization . . . communication with a former 
employee . . . is permissible under Prof. Cond. R. 4.2.” Id . In Opinion 2016 -5, the Board 
simply reiterated the same conclusion it reached in its 1996 opinion on this same issue. See 
Sup. Ct. of Ohio Bd. of Prof’l Conduct, Op. 1996-1 (Feb. 2, 1996) (stating that “an attorney 
may communicate on the subject matter of the representation with former employees of the 
corporation without notification or consent of corporate counsel”). 
Federal courts in Ohio have routinely applied the same principles with respect to an 
attorney’s ability to interview or obtain information from former employees of a corporation 
without first having to notify or receive the consent of corporate counsel . In Johnson, for 
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example, the court rejected the same argument Defendants advance here when denying a 
motion to strike an affidavit from the defendant’s former employee, by explaining that “ex 
parte contact with a former employee is not . . . prohibited.” Johnson, 231 F. Supp. 2d at 692. 
In reaching this decision, the Johnson court relied on Beiersdorf-Jobst, Inc., 980 F. Supp. at 261–
62, which reasoned that “the underlying rationale behind the rule, i.e. , maintaining the 
integrity of the attorney -client relationship, is not undermined by allowing uncounseled 
interviews with former employees who have no existing relationship with, and therefore 
cannot bind, a represented corporation.” 
As the court in Beiersdorf-Jobst put it, “the proscription against communications with 
represented parties does not extend to former employees of a represented corporation.” Id. at 
261. Here, it is undisputed that Mr. Ivankovich and Ms. Scott are former ASP employees, 
albeit managers, with no existing relationship with ASP (or any of the other Defendants) and 
thus no ability to bind Defendants. See Doc. 94, PageID 3043 (“Both declarations were taken 
from former executive level managers .”) (emphasis added); see also Doc. 100, PageID 3165 
(“[A] lawyer may communicate on the subject matter of the representation with any former 
and unrepresented corporate employees, including those in management, without notification or 
consent of the corporate lawyer.”) (emphasis added). 
 Defendants separately assert that even though Ms. Scott and Mr. Ivankovich are 
Defendants’ former employees, Mr. Shah’s counsel still failed to warn them not to divulge 
any privileged communications prior to receiving their declarations. Ivankovich Decl., Doc. 
94-2, ¶ 6 (“I was not informed of the specific details of the claims Shah was making against 
ASP . . . and that I should not reveal any privileged information.”) ; Ryan Decl. Ex. 1, Doc. 
94-1, ¶ 5 (“Counsel for Defendants inquired if either Ivankovich or Aliza Scott had been 
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informed in writing that no attorney-client privileged information should be shared. Plaintiff’s 
counsel indicated that they had not.”). According to Defendants, absent the warning, the 
declarations should be deemed inadmissible. 
Having already determined that this Court has no blanket policy or rule governing ex 
parte communications of former employees of a corporation by attorneys of a party opponent, 
the Court looks again to the Ohio Rules of Professional Conduct for guidance. Defendants 
argue correctly that Opinion 2016 -5 directs counsel to “ immediately inform [a] former 
employee not to divulge any privileged communications ” when conducting ex parte 
interviews. Doc. 100, PageID 3166. Importantly, however, Defendants do not identify any 
specific statement in either declaration in which either Mr. Ivankovich or Ms. Scott revealed 
any privileged attorney-client communications during the interviews . Instead, Defendants 
assert only that its two former high-level employees had access to attorney -client privileged 
information. Ryan Decl. Ex. 1, Doc. 94-1, ¶ 4. 
The Court agrees that Plaintiff’s counsel should have followed best practices and 
should have expressly cautioned Ms. Scott and Mr. Ivankovich not to reveal privileged 
information before interviewing them. That omission, however, does not justify striking both 
declarations in their entirety, particularly since Defendants cannot show that any privileged 
information was actually divulged. Indeed, a “blanket assertion of . . . privilege is insufficient.” 
Meyer v. Bank of Am., N.A., No. 2:18-cv-218, 2018 WL 6436268, at *3 (S.D. Ohio Dec. 7, 2018) 
(citation omitted). It should be noted here too that after learning of Mr. Ivankovich’s first 
declaration, Defendants separately interviewed him and obtained a second declaration from 
him (Ivankovich Decl., Doc. 94 -2). Yet Defendants still have not identified any privileged 
communication that may have been disclosed by either declarant, Mr. Ivankovich or Ms. 
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Scott for that matter . See Johnson, 231 F. Supp. 2d at 693 (rejecting motion to strike where 
defendants had not even “suggested that the . . . affidavit reference[d] information covered 
by that privilege”). 
Under the circumstances, we believe Ms. Scott and Mr. Ivankovich’s declarations are 
usable. The result we reach here obtains from the well -established principle that the 
attorney-client privilege must be construed narrowly because it restricts access to otherwise 
relevant evidence. See United States v. Collis , 128 F.3d 313, 320 (6th Cir. 1997) (“[T]he 
[attorney-client] privilege is narrowly construed because it reduces the amount of information 
discoverable during the course of a lawsuit”) ; In re Columbia/HCA Healthcare Corp. Billing 
Practices Litig., 293 F.3d 289, 294 (6th Cir. 2002). Moreover, to the extent that there may be 
legitimate concern s about unauthorized disclosures of confidential attorney -client 
communications by counsel, these can be readily addressed by Defendants when objecting to 
specific questions or portions of testimony . Indeed, as has been noted, courts have a duty to 
consider only admissible evidence and to disregard any material that could not be admitted 
at trial. See Foster v. Americare Healthcare Servs., Inc., 150 F. Supp. 3d 868, 870 (S.D. Ohio 2015). 
All in all, the circumstances presented in this case militate against the Court invoking 
the drastic measure of striking wholesale the two declarations of former management 
employees who have been shown to otherwise possess highly relevant unprivileged testimony. 
Accordingly, the Court finds that Plaintiff’s ex parte interviews with Ms. Scott and Mr. 
Ivankovich did not result in the disclosure of any privileged communications, such that it 
would provide any bases for striking their declarations in their entirety. 
 
 
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2. Timeliness of Disclosure of Witness Testimony 
Defendants next seek to strike the declarations of Mr. Ivankovich and Ms. Scott by 
arguing that Mr. Shah’s attorneys failed to timely disclose the subject matter of the 
information they possessed that would be used to support Plaintiff’s claims in his Rule 
26(a)(1) initial disclosures and in his subsequent interrogatory responses . Doc. 94, PageID 
3045; Doc. 105, PageID 3246–47. Mr. Shah, on the other hand, states that he identified both 
witnesses by name in multiple discovery documents, indicated that they possessed 
information supporting his claims, and identified them “well in advance of the discovery 
cutoff.” Doc. 101, PageID 3176–79 (stating that “Defendants knew for over a year and three 
months before the discovery deadline that Mr. Ivankovich and Ms. Scott possessed 
information relevant to Plaintiff’s claims, and that Plaintiff might use them as witnesses in the 
case”). 
Rule 26(a)(1)(A)(i) requires parties, such as Mr. Shah, to provide “the name and, if 
known, the address and telephone number of each individual likely to have discoverable 
information—along with the subjects of that information—that the disclosing party may use to 
support its claims or defenses.” Fed. R. Civ. P. 26(a)(1)(A)(i) (emphasis added). In turn, Rule 
37(c)(1) provides that if a party fails to provide such information or identify a witness as 
required by Rule 26(a)
6, “the party is not allowed to use that information or witness to supply 
evidence on a motion, at a hearing, or at a trial,” that is, unless that party’s “failure was 
substantially justified or is harmless.” Fed. R. Civ. P. 37(c)(1). 
 
6 Rule 26(e) of the Federal Rules of Civil Procedure imposes a continuing duty on parties to supplement 
disclosures “in a timely manner if the party learns that in some material respect the disclosure or response is 
incomplete or incorrect, and if the additional or corrective information has not otherwise been made known 
to the other parties during the discovery process or in writing; or . . . as ordered by the court.” See Fed. R. 
Civ. P. 26(e). 
 
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The circumstances presented in this dispute closely resemble those resolved by the 
Sixth Circuit in the Gipson v. Vought Aircraft Indus., Inc. decision. There, the plaintiff identified 
the declarant by name in his initial disclosures as a person likely to have discoverable 
information but provided little else about that witness’s specific knowledge . L ater in the 
proceedings, the plaintiff over the objection of the defendant i n that case, sought to submit 
the witness’s affidavit for the first time with his summary-judgment papers. Gipson v. Vought 
Aircraft Indus., Inc ., 387 F. App’x 548, 551–52 (6th Cir. 2010). The Sixth Circuit held that 
merely listing the witness’s name, without fairly describing the subject matter of the person’s 
knowledge, did not satisfy Rule 26(a)(1)(A)(i) and affirmed the district court’s decision to 
strike portions of the affidavit. Id. at 554–55. 
Mr. Shah’s conduct in this case follows a similar pattern as the plaintiff in Gipson. Here, 
Mr. Shah in his initial disclosures, made on September 11, 2024 ( Ds.’ Ex. 1, Doc. 105- 1, 
PageID 3253–54), identified both Ms. Scott and Mr. Ivankovich as individuals likely to have 
discoverable information that he might use “to support his claims and defenses, including . . 
. information regarding Defendants’ breaches of express and/or implied contracts . . . and the 
resulting emotional distress and damages suffered by [Mr. Shah] .” On September 16, 2024, 
Mr. Shah again identified Ms. Scott and Mr. Ivankovich as individuals likely to have 
discoverable information in Plaintiff’s Responses to Defendant Fortive C orporation’s First 
Interrogatories & Requests for Production of Documents. Ds.’ Ex. 2, Doc. 105-2, PageID 
3261. Further in the proceedings, on February 24, 2025, Mr. Shah also identified Ms. Scott 
and Mr. Ivankovich as “lay witnesses who may testify at the trial.” Ds .’ Ex. 3, Doc. 105-3, 
PageID 3281. As in Gipson , these disclosures clearly identified the witnesses by name and 
indicated that they possessed relevant information but did not describe with any specificity 
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the knowledge or details generally that these potential witnesses retained to the degree that 
Ms. Scott and Mr. Ivankovich would later testify to in their declarations. Gipson, 387 F. App’x 
at 554–55. 
Likewise, the timing of the declarations filed by Mr. Shah’s counsel mirrors Gipson. 
Here, discovery closed on December 15, 2025. Notation Order, 10/3/2025. And counsel for 
Mr. Shah obtained Mr. Ivankovich’s declaration on December 15, 2025, yet did not provide 
it to Defendants until January 9, 2026, nearly three weeks later . Ivankovich Decl., Doc. 75, 
PageID 983; Ds.’ Ex. 1, Doc. 94 -1, PageID 3051. In the case of Ms. Scott, Mr. Shah’s 
attorneys obtained her declaration on January 14, 2026, and provided it to Defendants on the 
same day—nearly one month after the discovery period ended on December 15, 2025. Doc. 
76, PageID 989; Ds.’ Ex. 1, Doc. 94-1, PageID 3053. Notably, also, Mr. Shah filed the two 
declarations on the same day as the dispositive motion deadline on January 14, 2026. 
Notation Order, 10/03/2025. Taken together, the record shows that although discovery 
closed on December 15, 2025, Defendants did not receive both declarations—or learn , 
partially, of the nature and scope of the witnesses’ anticipated testimony—until after the close 
of discovery. In light of the factual similarities between this case and Gipson , the Court 
concludes that Mr. Shah’s Rule 26(a) disclosures to Defendants were woefully inadequate 
and violative of the principles established by the Circuit in that case . T hough Mr. Shah 
identified Ms. Scott and Mr. Ivankovich by name, he did not, during the discovery period, 
fairly apprise Defendants of the specific subject matter of the testimony that would be the 
focus of their statements presented in their declarations later. 
With the missteps that occurred surrounding the timing of the disclosures being so 
similar to Gipson, Defendants insist that Ms. Scott and Mr. Ivankovich’s declarations should 
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be stricken . However, exclusion of testimony proffered through declarations, under Rule 
37(c)(1), is not automatic. As noted, Rule 37(c)(1) provides that if a party fails to provide such 
information or identify a witness as required by Rule 26(a), “the party is not allowed to use 
that information or witness to supply evidence on a motion, at a hearing, or at a trial,” unless 
that party’s “failure was substantially justified or is harmless.” Fed. R. Civ. P. 37(c)(1). In 
essence, the Rule establishes exclusion of evidence as the general rule but recognizes two 
critical exceptions. 
As an initial matter, the Court finds little support for any claim that can be made that 
Mr. Shah’s failure to disclose information to Defendants regarding the subject matter of Ms. 
Scott and Mr. Ivankovich’s declarations was substantially justifie d. More relevant to the 
discussion here, though, is the d etermination of whether Mr. Shah’s late disclosure of the 
subject matter of the declarations was harmless. To guide that determination, the Court finds 
instructive the framework set out by the Sixth Circuit in Howe v. City of Akron , 801 F.3d 718, 
747–48 (6th Cir. 2015) adopted from Russell v. Absolute Collection Serv s., Inc., 763 F.3d 385, 
396–97 (4th Cir. 2014). Under that framework, a trial court assessing whether nondisclosure 
by a party was harmless may consider a number of factors, including: “(1) the surprise to the 
party against whom the evidence would be offered; (2) the ability of that party to cure the 
surprise; (3) the extent to which allowing the evidence would disrupt the trial ; (4) the 
importance of the evidence ; and (5) the nondisclosing party’s explanation for its failure to 
disclose the evidence.” Howe, 801 F.3d at 748 (quoting Russell, 763 F.3d at 396–97). 
Applying Howe to the facts in this case , the Court first considers the surprise factor. 
Defendants cannot plausibly claim they were unaware of Mr. Ivankovich and Ms. Scott or of 
the potential relevance of the evidence they possessed in this case. Long before the close of 
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discovery, Mr. Shah’s initial disclosures, interrogatory responses, and witness disclosures 
identified both individuals as persons with information that Mr. Shah might use to support 
his claims in the case. Ds.’ Exs. 1–3, Docs. 105-1, 105-2, 105-3. Though those disclosures did 
not recite the precise contents of the later declarations, and there was therefore some element 
of surprise when the declarations were served, Mr. Shah still put Defendants on notice that 
he regarded Mr. Ivankovich and Ms. Scott as key witnesses on a central issue: whether 
Defendants agreed to pay his Singapore taxes. Given their former roles with the company, 
Defendants must not have been paying attention as this case proceeded or are now 
sandbagging by feigning ignorance of why Plaintiff listed Mr. Ivankovich and Ms. Scott as 
witnesses. Neither explanation is credible in light of how contentious this litigation has been 
on both sides. 
 Second, as to Defendants’ ability to cure any surprise, the timing of Mr. Shah’s 
production did not afford Defendants a realistic opportunity to pursue additional discovery 
before the dispositive-motion deadline of January 14, 2026. Notation Order, 10/3/2025. Mr. 
Shah produced Mr. Ivankovich’s declaration on January 9, 2026, and Ms. Scott’s declaration 
on January 14, 2026, both of which events occurred after the December 15, 2025, discovery 
cut off. Ds.’ Ex. 1, Doc. 94-1, PageID 3051–54. In practical terms, Defendants had only a few 
days’ notice of the substance of Mr. Ivankovich’s declaration before the January 14, 2026, 
dispositive-motion deadline, and essentially no lead time on Ms. Scott’s declaration. The 
Court cannot minimize that concern. Id. at PageID 3052 (“This improper disclosure also 
interferes with our preparing our summary judgment motion . . . due this week.”). 
At the same time, however, the record also shows that Defendants were able to 
respond to the substance of the two declarations in meaningful ways . For instance, after 
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receiving Mr. Ivankovich’s initial declaration (Ivankovich Decl., Doc. 75) , Defendants 
themselves contacted Mr. Ivankovich, obtained a second declaration (Ivankovich Decl., Ds.’ 
Ex. 2, Doc. 94-2) and filed that declaration on the docket in support of their Motion to Strike 
(Doc. 94 ). In short, both sides have demonstrated an ability to supplement the 
summary-judgment record with evidence obtained or produced after the close of formal 
discovery, which severely undercuts Defendants’ claim of prejudice and shows that any initial 
surprise was mitigated by Defendants’ ability to address both declarations in motion practice 
and to also develop rebuttal evidence from Mr. Ivankovich himself. 
Third, as for the potential for disruption, the Court is unconvinced that allowing the 
declarations now being proffered by Mr. Shah will have anything more than a modest impact 
on the proceedings or case schedule. No trial date has been set, nor have Defendants shown 
that considering this evidence will require any change to existing deadlines. Fourth, the 
importance of the evidence weighs heavily against exclusion. The declarations from Mr. 
Ivankovich and Ms. Scott offer first-hand accounts from two key former senior executives of 
Defendants who had a hand in negotiating Mr. Shah’s employment contract relevant to the 
alleged tax arrangement the company made with him. Ivankovich Decl., Doc. 75 , ¶¶ 6, 11; 
Scott Decl., Doc. 76 , ¶¶ 3, 5 (“It was further agreed that, as part of Nilesh's compensation, 
ASP would pay the income taxes Nilesh would owe to Singapore, while Nilesh would be 
responsible for paying the income taxes he would owe to the U.S.”). Their testimony goes 
directly to the purpose and meaning of the contractual language at the heart of the dispute in 
this case . See Am. Compl., Doc. 37. Thus, striking these declarations from consideration 
would remove highly probative evidence and certainly hinder, if not disrupt, the search for 
truth. 
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Finally, under the fifth prong of the Howe factors, the Court finds that Mr. Shah’s 
explanation for not disclosing the evidence to Defendants is completely underwhelming to 
put it kindly. There are few, if any, strong justifications for Mr. Shah’s counsel’s conduct in 
this regard, knowing what he knew about the subject matter of the two witnesses’ proposed 
testimony. Further, he obtained Mr. Ivankovich’s declaration on the last day of discovery , 
December 15, 2025, and delayed producing it to Defendants for several weeks until January 
9, 2026. Decl., Doc. 75, PageID 983; Ds.’ Ex. 1, Doc. 94-1, PageID 3051. And in the case of 
Ms. Scott, he obtained her declaration and filed it on the docket on January 14, 2026—well 
after the December 15, 2025, discovery deadline. Scott Decl., Doc. 76, PageID 989; Ds.’ Ex. 
1, Doc. 94-1, PageID 3053. 
However, the delay here is measured in weeks rather than months, and as noted, 
Defendants were able to respond substantively to the evidence put forth in the first declaration 
by obtaining a second declaration from Mr. Ivankovich (Ivankovich Decl., Ex. 2, Doc. 94-2) 
after the discovery deadline , in effect mollify ing the potential damage to Defendants’ case 
caused by his earlier testimony. On balance, this imperfect explanation does not tip the scales 
in favor of the Court excluding the declarations from Ms. Scott and Mr. Ivankovich that 
Plaintiff is relying on to make his case. Considering all of the Howe factors together, the Court 
concludes that any Rule 26 violations Plaintiff may have committed relating to the Ivankovich 
and Scott declarations were harmless within the meaning of Rule 37(c)(1). 
3. Hearsay and Relevance 
 Finally, Defendants argue that Ms. Scott and Mr. Ivankovich’s declarations are 
hearsay and irrelevant because neither declarant had the authority to speak on behalf of 
Defendants’ legal department. Doc. 94, PageID 3045; Doc. 105, PageID 3248. Under 
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Evidence Rule 801, “[h]earsay is when a party offers an out-of-court statement for its truth.” 
Garrett v. Sw. Med. Clinic , 631 F. App’x 351, 358 (6th Cir. 2015) . To be specific, the term 
“hearsay” means that “(1) the declarant does not make [the statement] while testifying at the 
current trial or hearing; and (2) a party offers [the statement] in evidence to prove the truth of 
the matter asserted in the statement.” See Fed. R. Evid. 801(c). To support their contention, 
Defendants rely on Garrett and state that Mr. Ivankovich “has no idea who even drafted the 
offer letters” at issue in the case. Doc. 94, PageID 3045. 
Defendants’ reliance on Garrett is misplaced, however. Garrett involved a plaintiff’s 
attempt to introduce, through her own testimony —the statements supposedly made by a 
coworker concerning what a supervisor allegedly said —a double hearsay problem . Garrett, 
631 F. App’x at 357–58. In that situation, the plaintiff’s coworker also had no authority to 
relay management statements on the employer’s behalf. Id . Here, by contrast, the Court is 
presented with sworn declarations from two former high-level employees, who are themselves 
recounting their own firsthand observations of their participation in Mr. Shah’s hiring and 
their discussions with him pertaining to his Singapore tax obligations. Ivankovich Decl., Doc. 
75, ¶¶ 6, 11; Scott Decl., Doc. 76 , ¶ 3. As noted, the matters set forth in the declarations of 
both these former employees of ASP contain relevant and important information that strikes 
at the heart of the dispute in this case. Defendants’ reliance on Garrett is misplaced given that 
that case does not stand for the proposition that such firsthand testimony grounded in 
personal knowledge is inadmissible. Indeed, Defendants’ decision to pursue and then file their 
own declaration containing additional testimony from Mr. Ivankovich is difficult to reconcile 
with their assertion that only the portion of his statements Plaintiff seeks to elicit—rather than 
all of his statements, including those favorable to Defendants —is inadmissible hearsay. See 
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Doc. 105, PageID 3248. In any regard, as earlier noted by this Court, any statements that 
constitute inadmissible hearsay, when these proceedings reach the summary judgment stage, 
will simply be disregarded. See Berry v. Frank’s Auto Body Carstar, Inc., 817 F. Supp. 2d 1037, 
1041 (S.D. Ohio 2011), aff’d, 495 F. App ’x 623 (6th Cir. 2012); Ulmer v. Dana Corp., 200 F. 
Supp. 2d 804, 812 (N.D. Ohio 2002), aff’d , 115 F. App’x 787 (6th Cir. 2004) (declining to 
strike affidavits where the objecting party “ma[de] generalized allegations” about lack of 
personal knowledge and admissibility). 
For similar reasons the Court is unpersuaded by Defendants’ relevance objections. 
“Evidence is relevant if: (a) it has any tendency to make a fact more or less probable than it 
would be without the evidence; and (b) the fact is of consequence in determining the action.” 
See Fed. R. Evid. 401. To reiterate, the parties’ understanding surrounding who would be 
responsible for paying the disputed Singapore taxes related to Mr. Shah’s employment in that 
country is central to this litigation. See Am. Compl., Doc. 37. Defendants cannot plausibly 
contend that the testimony of two of the individuals who negotiated the most salient terms 
contained in that agreement is irrelevant. The record before the Court belies Defendants’ 
argument. On the one hand, Defendants assert that the two declarations are irrelevant but on 
the other hand they still chose to obtain and file their own declaration from Mr. Ivankovich, 
effectively conceding that his testimony is probative of the issues in this case. Ivankovich 
Decl., Ds.’ Ex. 2, Doc. 94-2. The same logic applies to Ms. Scott’s declaration, even though 
it does not appear that Defendants sought to interview her. Accordingly, Defendants’ hearsay 
and relevance objections do not provide a basis for exclusion of Ms. Scott and Mr. 
Ivankovich’s declarations. 
 
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III. CONCLUSION
For all the reasons stated, Defendants' Motion to Strike (Doc. 94) is DENIED. 
IT
 IS SO ORDERED. 
June 17, 2026 
Jeffery P. Hopkins 
United States District Judge 
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