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NL Enterprises, LLC v. United Pacific Pet, LLC

United States District Court, D. Nebraska

September 16, 2016

NL ENTERPRISES, LLC, Plaintiff,
v.
UNITED PACIFIC PET, LLC, Defendant.

          ORDER

          CHERYL R. ZWART, UNITED STATES MAGISTRATE JUDGE

         For the reasons stated on the record, (Filing No. 104), UP's objections to NL's discovery (as outlined in the attached chart), are overruled in part and sustained in part as follows:

         1) As to Production Request 24 and 40, and Interrogatory No. 21, the parties have reached a stipulation and no further assistance is needed from the court.

         2) As to remaining discovery disputes outlined by the parties, for the timeframe beginning in 2013 and to present, United Pacific Pet (UP) shall:

a. Produce its quarterly financial statements;
b. Investigate whether any documents exist which will aid in determining the cost of goods sold; direct costs; overhead costs; and indirect costs associated with UP's sale of NL products specifically. If such documents exist, they must be promptly produced. If they do not exist, UP shall provide a statement, signed under oath, stating that such documents do not exist.
c. Produce all documents underlying UP's determination of its gross profit margin and net profit margin for the sale of NL products, including all documents underlying UP's 24.5% profit margin calculation, along with any other documents useful in determining its profit margins for the sale of NL products, including documents reflecting purchases and sales of NL products, and the sales and overhead costs incurred and specifically attributable to the sale of NL products.
d. Provide an interrogatory response, signed under oath by UP, explaining the methodology used by UP to track profit margins for the sale of its products in general, and if a different method was used for NL product sales, a description of the method used as to NL products specifically.
e. To the extent not already disclosed, produce UP's monthly sales reports for NL products for the time period from 2013 to present.
f. For each pet food manufacturer or other individual or business that UP has begun a distribution relationship with since November 25, 2015, identify (broken down by month) the amount of product UP has ordered/purchased since November 25, 2015. All documents produced in response to this subparagraph 2(f) shall be disclosed to only counsel and the parties' specially retained expert witnesses until such time as the court both: i) determines that failure to mitigate can be raised as a defense to a claim for breach of an exclusive distributorship contract, and ii) enters an order specifically permitting disclosure to NL itself.
g. Produce all documents reflecting the projection of sales, forecasts, or estimations of all of UP's proposed purchases and/or sales of Nature's Logic products.

         To assist the Court in more efficiently addressing the parties' discovery dispute(s), the parties shall meet and confer, and jointly complete the following chart. The purpose of this chart is to succinctly state each party's position and the last compromise offered when the parties met and conferred. The fully completed chart shall be e-mailed to chambers at zwart@ned.uscourts.gov.

         The moving party is: Plaintiff/Counterclaim Defendant NL Enterprises, LLC

         The responding party is: Defendant/Counterclaimant ...


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