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

United States District Court, D. Nebraska

November 27, 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 on two motions to compel filed in the Lead Case: the Motion to Compel Production of Documents (Filing No. 118)[1] filed by Defendants, Affiliated Foods Midwest Cooperative, Inc. and Associated Wholesale Grocers, Inc. (“AFM/AWG”), and the Second Motion to Compel (Filing No. 137) filed by Plaintiff, Borowiak IGA Foodliner, Inc. (“Borowiak”).

         AFM/AWG assert that Borowiak unilaterally limited its document production without objecting to requests and seeks an order compelling Borowiak to produce documents completely responsive to AFM/AWG's First Set of Requests for Production of Documents.

         Borowiak requests that the Court (1) strike AFM/AWG's objections to Request for Production of Document Nos. 3, 5, 6 and 7 and direct AFM/AWG to produce all 2015 documents related or leading to any potential AWG transaction; and (2) direct all relevance-based redactions be withdrawn and unredacted documents not containing privileged communications be fully and immediately produced to Borowiak.

         After the motions were fully submitted to the Court, AFM/AWG filed a Supplemental Memorandum (Filing No. 169) and Exhibit (Filing No. 170) in support of its motion to compel, and Borowiak filed a Supplemental Memorandum (Filing No. 183) and Index of Evidence (Filing No. 184).

         BACKGROUND

         The Borowiak plaintiffs initially filed the instant action against AFM on October 12, 2016, alleging that AFM failed to fulfill certain obligations under a Supply Agreement dated December 29, 2015. (Filing No. 1). The Court later joined AWG as a defendant. (Filing No. 22). On November 3, 2016, AFM/AWG filed a counterclaim against Borowiak IGA and a third party complaint against Trevor Borowiak. (Filing No. 11). On May 16, 2017, AFM/AWG filed an amended Counterclaim against Borowiak IGA for breach of the parties' Supply Agreement and an incorporated Promissory Note and for fraudulent and negligent misrepresentations, and an amended third-party complaint against Trevor Borowiak for breach of guarantor obligations, tortious interference with contract, and fraudulent and negligent and misrepresentations. (Filing No. 44). AFM/AWG's affirmative defenses include that Plaintiff failed to mitigate its damages. (Filing No. 44).

         AFM filed an action against its competitor SuperValu in state court on October 11, 2016, alleging that sometime in August 2016, SuperValu began working with Borowiak to induce Borowiak to breach AFM and Borowiak's December 29, 2015, agreements. SuperValu removed the case to this court on October 12, 2016. Borowiak was granted leave to intervene in AFM's action against SuperValu. The Court later joined AWG as a plaintiff. (Filing No. 22). The cases were initially consolidated for discovery purposes only, but have now been consolidated for all purposes, including trial.

         ANALYSIS

         I. AFM/AWG'S Motion to Compel

         Federal Rule of Civil Procedure 26(b)(1) sets forth the scope of discovery: “Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense and proportional to the needs of the case[.]” Fed.R.Civ.P. 26(b)(1). “Discovery requests should be considered relevant if there is any possibility the information sought is relevant to any issue in the case and should ordinarily be allowed, unless it is clear the information sought can have no possible bearing on the subject matter of the action.” Met-Pro Corp. v. Industrial Air Technology, Corp., No. 8:07CV262, 2009 WL 553017, * 3 (D. Neb. March 4, 2009). When the discovery sought appears relevant on its face, the party resisting discovery has the burden to establish that the discovery is not relevant or is “of such marginal relevance that the potential harm occasioned by the discovery would outweigh the ordinary presumption in favor of broad disclosure.” Moses v. Halstead, 236 F.R.D. 667, 671 (D. Kan. 2006). If the relevancy of the discovery request is not readily apparent, the party seeking the discovery has the burden to show the relevancy of the request. Id.“[A]s long as the parties request information or documents relevant to the claims at issue in the case, and such requests are tendered in good faith and are not unduly burdensome, discovery shall proceed.” St. Paul Reins. Co., Ltd. v. Commercial Fin. Corp., 198 F.R.D. 508, 511 (N.D. Iowa 2000).

         If the responding party objects to a request for production of documents, Fed.R.Civ.P. 34(b)(2) requires the responding party to “state with specificity the grounds for objecting to the request” and to “state whether any responsive materials are being withheld on the basis of that objection.” Fed.R.Civ.P. 34(b)(2)(B)-(C). Nevertheless, even if no timely objections are made, “[t]he court, in its discretion, may decline to compel the production of requested documents . . . if the requests far exceed the bounds of fair discovery.” White Cap Constr. Supply, Inc. v. Tighton Fastener & Supply Corp., No. 8:08CV264, 2010 WL 148430, at *4 (D. Neb. Jan. 12, 2010)(citing Krewson v. City of Quincy, 120 F.R.D. 6, 7 (D. Mass. 1988). For example, “A party resisting facially overbroad or unduly burdensome discovery need not provide specific, detailed support” to raise and stand on its objections. Madden v. Antonov, 2014 WL 4295288, 3 (D. Neb. 2014).

         On May 31, 2017, AFM/AWG served their First Set of Requests for Production of Documents on Borowiak. The requests did not contain a “prospective temporal limitation” (or any time limitation at all), and some specifically requested information to the present. (Filing No. 119 at pp. 2-3). In Borowiak's responses, it did not object based on the “prospective time frame” and did not impose a “prospective temporal limitation on its responses.” (Filing No. 119 at pp. 2-3). In connection with its responses to AFM/AWG's requests, Borowiak produced two sets of documents, on October 23, 2017, and December 12, 201[7]. (Filing No. 120-1 at p. 2). AFM/AWG's primary complaint with Borowiak's production is the fact that it did not produce “any” documents post-dating October 13, 2016, apparently based on relevancy grounds, though Borowiak did not note that it was objecting on relevance or withholding documents based on that objection. (Filing No. 119 at p. 3). AFM/AWG assert that they discovered Borowiak's deficient responses through SuperValu's production in the Member Case, which included communications between SuperValu and Borowiak that post-date October 2016.

         AFM/AWG filed a Supplemental Exhibit that they contend is evidence of Borowiak's improper withholding of post-complaint documents. (Filing Nos. 169 and 170 in the Lead Case). AFM/AWG represent that in the Member Case, SuperValu produced a “narrative written by Trevor Borowiak to SuperValu” that they assert is relevant to Borowiak's claims against AFM/AWG. The narrative is not dated, but it must have been authored after the Lead Case commenced because Trevor Borowiak comments that, after a meeting wherein “AWG was so super arrogant it made me sick, ” his attorney “made me pull back and we filed [a] lawsuit first.” (Filing No. 170). AFM/AWG maintain that Borowiak has produced “limited” communications with SuperValu, no communications that post-date October 13, 2016, and a “small subset” of retailer statements from SuperValu for 2017. (Filing No. 119 at p. 4). AFM/AWG state they offered Borowiak a compromise wherein Borowiak would not need to search and produce certain categories of communications between Borowiak and SuperValu so as to address ...


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