United States District Court, D. Nebraska
Michael D. Nelson United States Magistrate Judge
matter is before the Court following a conference held on
December 20, 2018, with counsel for the parties regarding the
pending motions in this case and the recently filed related
case, Crabar/GBF, Inc. v. Wright Printing Co. et al
(“Crabar II”), 8:18CV520. The Court heard
arguments and updates from counsel regarding the status of
their discovery disputes and the ramifications of proceeding
with both the instant case and Crabar II case.
discussed during the conference, the Court will grant
Crabar's Motion for Leave to File its Second Amended
Complaint. (Filing No. 154). Although Crabar's
motion was filed outside the time period established by the
scheduling order, the Court finds that Crabar met its burden
to show good cause under Rule 16(b) and acted diligently in
filing its motion. See Popoalii v. Corr. Med.
Servs., 512 F.3d 488, 497 (8th Cir. 2008); Sherman
v. Winco Fireworks, Inc., 532 F.3d 709, 716 (8th Cir.
2008). Discovery in this case still ongoing, and Crabar's
additional claims and defendants are closely related to the
original action and do not appear to require voluminous
additional discovery. Additionally, permitting Crabar to file
its Second Amended Complaint in this case will obviate the
need for parallel litigation and duplicative discovery in the
Crabar II case. Crabar agreed to dismiss the Crabar II action
if it was granted leave to amend in this action. Counsel for
Defendants agreed to accept service of the Second Amended
Complaint on behalf of all Defendants and to file a
responsive pleading within sixty (60) days after Crabar files
the Second Amended Complaint. The parties requested that the
current case progression deadlines be suspended while they
meet and confer to propose a joint amended case progression
order. The Court's ruling is not based on any legal
conclusions, opinions, or other statements outside the scope
of Fed.R.Civ.P. 56 contained in Crabar's declarations
offered in support of its motion to amend, and therefore
Defendants' Motion to Strike Declarations (Filing No.
172) is denied as moot.
Court also heard arguments from both parties on the status of
the discovery disputes that are the subject of Crabar's
motions to compel (Filing No. 191; Filing No.
195). Crabar's first motion to compel pertains to
its belief that Defendants' document production is
incomplete. Crabar requests that the Court order Defendants
to produce to Crabar's computer consultants mirror images
of certain computer servers, laptop computers, and related
data storage devices for a corroborating search. In the
alternative, Crabar requests the Court compel Defendants to
conduct additional searches of certain servers, email
accounts, and laptops under the supervision of Crabar's
computer consultants. (Filing No. 191). Based on
Defendants' representations to the Court in their filings
opposing the motion, and during the in chambers conference,
the Court finds that Defendants have shown they have acted
diligently and in good faith to search for and produce an
extensive number of documents responsive to Crabar's
document requests. During the Court's discussion with the
parties, it appears that they may be able to agree upon
additional search terms and devices for Defendant to search
for documents to Crabar's satisfaction. The parties shall
meet and confer to agree upon the parameters of the
additional searches. Accordingly, Crabar's first motion
to Compel (Filing No. 191) will be denied, without
prejudice, pending the completion of the additional searches.
respect to Crabar's request for production of customer
solicitation communications, the parties agreed to a protocol
that may resolve Crabar's complaints of deficient
production. Crabar will cross-check its customer list with
the list of approximately 1800 customers that Defendants have
actually sold to in order to identify names for Defendants to
conduct additional searches. Crabar proposes limiting the
search to the time period of approximately June 2016 through
November 2016. The parties shall agree upon the search terms
and devices to be searched. Accordingly, Crabar's motion
to compel production of customer solicitation communications
(Filing No. 195) will be denied, without prejudice,
pending the completion of this additional search.
event outstanding discovery disputes remain following the
above subsequent searches, the parties shall contact the
chambers of the undersigned magistrate judge to schedule a
telephone conference for resolution.
Plaintiff's Motion for Leave to File Second Amended
Complaint (Filing No. 154) is granted. Plaintiff
shall file its proposed Second Amended Complaint on or before
December 31, 2018. Defendants may file their responsive
pleading(s) within sixty (60) days after the Second Amended
Complaint is filed.
Defendants' Motion to Strike Declarations of Elissa
Isaacs and David Crysler (Filing No. 172) is denied.
Plaintiff's first Motion to Compel (Filing No.
191) is denied, without prejudice.
Plaintiff's second Motion to Compel (Filing No.
195) is denied, without prejudice.
current case progression deadlines are suspended pending the
parties' submission of a joint proposed amended case
progression schedule within fourteen (14) days of the filing
of all responses to ...