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 Judge
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) 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,
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.
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relevance-based redactions be withdrawn and unredacted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.
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).
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).
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.
AFM/AWG'S Motion to Compel
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).
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).
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. (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.
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 ...