United States District Court, D. Nebraska
AFFILIATED FOODS MIDWEST COOPERATIVE, INC., a Nebraska corporation; and ASSOCIATED WHOLESALE GROCERS, INC., Plaintiffs,
SUPERVALU INC., a Delaware corporation; Defendant. BOROWIAK IGA FOODLINER, INC., Plaintiff,
AFFILIATED FOODS MIDWEST COOPERATIVE, INC., and ASSOCIATED WHOLESALE GROCERS, INC., Defendants, Counterclaimants, and Third-Party Defendants,
TREVOR BOROWIAK, Third-Party Defendant.
Michael D. Nelson United States Magistrate
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.
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).
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).
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.
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
(5) AFM/AWG's budgets, forecasts or projections relating
to Borowiak's stores.
primarily objects to producing profit information and
financial statements from 2013 and 2014. (Ex. C).
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