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Affiliated Foods Midwest Cooperative, Inc. v. Supervalu Inc.

United States District Court, D. Nebraska

September 21, 2018

AFFILIATED FOODS MIDWEST COOPERATIVE, INC., a Nebraska corporation; and ASSOCIATED WHOLESALE GROCERS, INC., Plaintiffs,
v.
SUPERVALU INC., a Delaware corporation; Defendant. BOROWIAK IGA FOODLINER, INC., Plaintiff,
v.
AFFILIATED FOODS MIDWEST COOPERATIVE, INC., and ASSOCIATED WHOLESALE GROCERS, INC., Defendants, Counterclaimants, and Third-Party Defendants,
v.
TREVOR BOROWIAK, Third-Party Defendant.

          ORDER

          Michael D. Nelson United States Magistrate Judge.

         This matter is before the Court following a telephone conference held on September 19, 2018, with counsel for the parties in both the Lead and Member Cases. Counsel for SuperValu Inc., (“SuperValu”) requested the conference to resolve a discovery dispute in the Member Case, and counsel for Affiliated Foods Midwest Cooperative, Inc. and Associated Wholesale Grocers, Inc. (“AFM/AWG”) requested to join to the conference a separate discovery dispute in the Lead Case with Borowiak IGA Foodliner, Inc. (“Borowiak”).

         The discovery dispute between SuperValu and AFM/AWG in the Member Case was partly addressed during a telephone conference held before the undersigned magistrate judge on August 29, 2018. In advance of that telephone conference, the Court received by email the following submissions related to the Member Case discovery dispute: a joint Discovery Dispute Chart (Exhibit A), SuperValu's letter argument dated August 27, 2018, (Exhibit B), and AFM/AWG's letter argument dated August 27, 2018, (Exhibit C).

         The Court received the following submissions by email in advance of the September 19, 2018, telephone conference: SuperValu's letter argument dated September 18, 2018, (Exhibit D), Borowiak's letter argument dated September 18, 2018, (Exhibit E), and AFM/AWG letter argument dated September 18, 2018, (Exhibit F).

         During the telephone conference, all parties agreed that the Court may enter rulings on the discovery disputes raised in the above documents without formal motion practice, with the exception that AFM/AWG objects to Court resolution of the issues raised in Borowiak's letter (Exhibit E) because they have not yet met and conferred on those issues.

         Member Case Dispute

         SuperValu generally requests that AFM/AWG produce financial information regarding their actual profits and Board of Director meeting documents related to Borowiak, SuperValu, or the AWG/AFM merger. SuperValu's Requests for Production Nos. 25-29 seek documents that SuperValu assert are relevant to assess AFM/AWG's claim for lost profit damages calculated as far as ten years into the future resulting from SuperValu's alleged tortious interference. (Ex. B at p. 2). SuperValu has agreed to limit these requests to the following documents:

(1) Documents sufficient to show AFM/AWG total sales revenue on wholesale grocery supply contracts by year, January 1, 2013 to date;
(2) Documents sufficient to show AFM/AWG's total cost of goods sold and direct and/or allocated costs on wholesale grocery supply contracts by year, January 1, 2013 to date,
(3) Documents sufficient to show AFM/AWG's average profits on wholesale grocery supply contracts by year, January 1, 2013, to date;
(4) AFM/AWG's financial statements - audited, reviewed or compiled by a public accounting firm, January 1, 2013 to date; and
(5) AFM/AWG's budgets, forecasts or projections relating to Borowiak's stores.

         AFM/AWG primarily objects to producing profit information and financial statements from 2013 and 2014. (Ex. C).

         Upon consideration of the matter, the Court will grant SuperValu's request and order AFM/AWG to search for and produce all documents responsive to SuperValu's compromised document requests set forth above. AFM/AWG allege that SuperValu began tortiously interfering with Borowiak IGA and AFM/AWG's relationship in July 2016. (Filing No. 54 at pp. 7-8 in the Member Case). According to SuperValu, AFM/AWG seek lost profit damages up to ten years into the future. Under Nebraska law, “[A] claim for lost profits must be supported by some financial data which permit an estimate of the actual loss to be made with reasonable certitude and exactness.” Racicky v. Farmland Indus., Inc., 328 F.3d 389, 397 (8th Cir. 2003)(quoting World Radio Labs., Inc. v. Coopers & Lybrand, 557 N.W.2d 1, 13 (Neb. 1996)(citations omitted)). “[T]he key to establishing lost profits is the establishment of a course of business activity through business records.” Racicky, 328 F.3d at 397 (quoting Triple R Indus., Inc. v. Century Lubricating Oils, Inc., 912 F.2d 234, 238 (8th Cir. 1990)). SuperValu's request for AFM/AWG's historical ...


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