G.P.P., Inc. v. Guardian Protection Products, Inc.

Filing 154

PRETRIAL ORDER. Motion in Limine Hearing set for 3/13/2017, at 03:00 PM in Courtroom 7 (SKO) before Magistrate Judge Sheila K. Oberto. Trial remains set for 3/21/2017. Order signed by Magistrate Judge Sheila K. Oberto on 2/3/2017. (Thorp, J)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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G.P.P., INC. d/b/a GUARDIAN
INNOVATIVE SOLUTIONS,
Plaintiff,

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GUARDIAN PROTECTION PRODUCTS,
INC., RPM WOOD FINISHES GROUP,
INC.,
Defendants.

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GUARDIAN PROTECTION PRODUCTS,
INC.,

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Counterclaimant,

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v.
G.P.P., INC. d/b/a GUARDIAN
INNOVATIVE SOLUTIONS,
Counter-defendant.

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March 2, 2017
March 8, 2017

Motions in Limine
Hearing:
Date: March 13, 2017
Time: 3:00 p.m.
Court: 7 (SKO)
Jury Trial:
Date: March 21, 2017
(5-7 day estimate) Time: 8:30 a.m.
Court: 7 (SKO)

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Motions in Limine
Filing Deadline:

_____________________________________/

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PRETRIAL ORDER

Motions in Limine
Response Deadline:

v.

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Case No. 1:15-cv-00321-SKO

_____________________________________/

1

The Court conducted a pretrial conference in this case on February 2, 2017. Dylan

2 Liddiard and Craig Bolton appeared on behalf of Plaintiff/Counter-Defendant G.P.P., Inc., doing
3 business as Guardian Innovative Solutions (“GIS”). Aaron Rudin and Calvin Davis appeared on
4 behalf of Defendant/Counterclaimant Guardian Protection Products, Inc. (“Guardian”) and
5 Defendant RPM Wood Finishes Group, Inc. (“RPM”).

Pursuant to Federal Rule of Civil

6 Procedure 16(e) and Rule 283 of the Local Rules of the United States District Court, Eastern
7 District of California, the Court issues the following Pretrial Order.
8 A.

JURISDICTION AND VENUE

9

Jurisdiction is predicated upon 28 U.S.C §§ 1332(a)(1) and 1367(a), and the Eastern

10 District of California is the proper venue pursuant to 28 U.S.C. § 1391(b). The parties do not
11 dispute jurisdiction or venue.
12 B.

JURY TRIAL

13

This case will be tried before a jury.

14 C.

TRIAL DATE AND ESTIMATED LENGTH

15

Trial will commence on Tuesday, March 21, 2017, at 8:30 a.m. before U.S. Magistrate

16 Judge Sheila K. Oberto in Courtroom 7 (SKO). The parties estimate that the trial will require
17 approximately 5-7 days. The parties are reminded that this Court holds full trial days and the
18 parties are expected to have witnesses ready every day to avoid wasting jury time.
19 D.

UNDISPUTED FACTS

20

1.

21

The Parties
a.

GIS, a Pennsylvania corporation based in Pitcairn, Pennsylvania, is a

22 Gibson family-run business that, together with its predecessors, has been a warehousing
23 distributor for Guardian for nearly three decades.
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b.

Frank Gibson is GIS’s President.

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c.

Christopher Nolan is GIS’s Executive Vice-President.

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d.

Guardian was incorporated under the laws of the State of Delaware on

27 January 14, 2000.
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e.

Guardian’s primary place of business is in Hickory, North Carolina.
2

1

f.

RPM is a Nevada corporation with its primary place of business in

2 Hickory, North Carolina.
3

g.

Ronnie Holman has been President of both Guardian and RPM since

4 October of 2002.
5

2.

6

The Warehousing Distributor Agreements
a.

On or around May 5, 1988, GIS and Guardian’s predecessors entered into

7 a Warehousing Distributor Agreement (“WDA”) whereby GIS acquired exclusive distribution
8 rights to Guardian’s products in certain counties in Pennsylvania (the “Pennsylvania
9 Agreement”).
10

b.

As of January 2013, GIS and Guardian were parties to nine valid WDAs

11 (or “Agreements”) which grant GIS the exclusive right to distribute Guardian’s products” in all
12 or parts of eleven states and the District of Columbia covered by those various Agreements.
13

c.

GIS became a party to the WDAs on May 5, 1988 (Pennsylvania

14 Agreement), December 6, 1988 (Mid-Atlantic Agreement), April 2, 1990 (Ohio Agreement),
15 April 23, 2007 (Cook County Agreement, Indiana Agreement, and Midwest Agreement), and
16 March 5, 2010 (Alabama Agreement, Florida Agreement, and Tennessee Agreement).
17

d.

The WDAs are governed by California law.

18

e.

The WDAs also contain provisions requiring notice and an opportunity to

19 cure with respect to other acts of material breach (i.e., besides failing to meet the minimum
20 purchase quotas).

These clauses prohibit the non-breaching party from terminating the

21 Agreements unless the breaching party fails to cure the breach within a 60-day period following
22 notice.
23

f.

As an exception, the Pennsylvania Agreement provides a 90-day notice

24 and cure period, but only with respect to certain breaches.
25

3.

Guardian’s

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a.

of

the

Alabama,

Florida,

and

Tennessee

Agreements

27

Termination

On August 19, 2013, Guardian sent GIS three breach notices related to the

28 Alabama, Florida, and Tennessee Agreements.
3

1

The numbers cited in Guardian’s notices of breach of the Alabama,

b.

2 Florida, and Tennessee Agreements included the sale of electronic furniture protection plans.
3

c.

On October 23, 2013, Guardian sent notices of termination of the

4 Alabama, Florida, and Tennessee Agreements.
5

d.

Guardian has not terminated the Pennsylvania, Mid-Atlantic, Ohio, Cook

6 County, Indiana, or Midwest Agreements.
7

e.

On December 9, 2014, in advance of a meeting in Pittsburgh that the

8 parties had scheduled, Guardian sent GIS a memorandum which stated: “In preparation for our
9 upcoming coming meeting, I am sending you a draft Agreement and this Memo to guide our
10 discussion.” The December Memo states as follows: “Executive Summary: The old contracts
11 held by GIS are no longer applicable to the current business, nor are they relevant to the current
12 business model. Moreover, the dated quotas do not allow for today’s market size. Corporate
13 Guardian is seeking new contracts that reflect the current business relationship, and provide the
14 appropriate market penetration to justify exclusive distribution rights.”
15 E.

DISPUTED FACTUAL AND LEGAL ISSUES

16

1.

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GIS’s Statement of Disputed Factual Issues:
a.

Purchase Quotas Under the Alabama, Florida, and Tennessee Agreements
i.

Whether Guardian had the right to terminate the Alabama, Florida,

19 and Tennessee Agreements (as opposed to merely asserting a breach of contract) on account of
20 GIS allegedly failing to its meet its purchase quota in any given month; or, whether Guardian’s
21 termination rights are limited only to instances where GIS fails to meet its annual quota over a
22 12-month contract term.
23

ii.

Whether Guardian properly terminated the Alabama, Florida, and

24 Tennessee Agreements on the grounds that GIS allegedly failed to meet its purchase quotas for
25 the specific months of June and July, 2013 in the specific states of Alabama, Florida, and
26 Tennessee.
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iii.

Whether GIS did, in fact, fail to meet its purchase quota under the

28 WDAs.
4

1

Whether Guardian frustrated GIS’s contractual right to cure its

iv.

2 alleged breach of its quota within 60 days of Guardian’s notices of breach, thereby excusing
3 GIS’s alleged nonperformance.
4

b.

5

Implied Covenant of Good Faith and Fair Dealing Under the WDAs
i.

Whether Guardian violated the implied covenant of good faith and

6 fair dealing under the WDAs by devising a scheme to improperly terminate the Alabama,
7 Florida, and Tennessee Agreements as a means to deprive GIS of its rights under those
8 Agreements, pressure GIS into giving up the rest of its territory, and accede to a new distribution
9 agreement with terms heavily in Guardian’s favor.
10

ii.

Whether Guardian threatened to terminate all WDAs—in addition

11 to the Alabama, Florida, and Tennessee Agreements—if GIS did not agree to a new distribution
12 agreement with terms heavily in Guardian’s favor.
13

iii.

Whether Guardian frustrated GIS’s right to benefit from the notice-

14 and-cure provisions of the Alabama, Florida, and Tennessee Agreements by refusing to allow
15 GIS to purchase additional products in order to cure any alleged shortfall under those
16 Agreements.
17

iv.

Whether Guardian deprived GIS of revenue it could use to fund a

18 defense against its conduct by selling products directly to customers within GIS’s Exclusive
19 Territories (including Bob’s Discount Furniture and Renaissance) and refusing to share revenue
20 from those sales with GIS.
21
22

Bob’s Discount Furniture

c.
i.

Whether the parties entered into a binding “Bob’s Discount

23 Furniture Agreement,” supported by valid consideration, concerning Guardian’s direct sale of
24 warranties to Bob’s Discount Furniture retail locations within GIS’s Exclusive Territories.
25

ii.

Whether the Bob’s Discount Furniture Agreement, if valid and

26 binding, was unilaterally terminable at will by Guardian; or, whether the Agreement requires
27 Guardian to continue making commission payments to GIS so long as Guardian continues to sell
28 products to Bob’s locations within GIS’s Exclusive Territories.
5

1

iii.

Whether Guardian breached the Bob’s Discount Furniture

2 Agreement by unilaterally deciding to stop making commission payments in December 2014.
3

d.

4

Renaissance
i.

Whether Guardian breached the Mid-Atlantic Agreement by

5 selling electronic warranties directly to Renaissance without GIS’s knowledge or consent.
6

Whether Guardian’s unilateral classification of Renaissance as a

ii.

7 “national account” revokes GIS’s exclusive right to sell Guardian products covered by the
8 WDAs to that customer under the Mid-Atlantic Agreement.
9

e.

RPM

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i.

Whether RPM is an alter ego of Guardian.

11

ii.

Whether RPM tortiously interfered with GIS’s contractual

12 relationship with Guardian.
13

f.

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Electronic Furniture Protection Plans Under the WDAs
i.

g.

Whether electronic warranties are covered by the WDAs.

16

Franchise Law and Unfair Competition Claims
Whether Defendants’ conduct violated the California Corporations

i.

17 Code Sections 31000-21516.
18

Whether Defendants’ conduct violated California Business and

ii.

19 Professions Code Sections 17200-17210.
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h.

dreamGUARD
i.

Whether CDFC is an alter-ego of GIS, and thereby bound by the

22 non-compete provisions in the WDAs.
23

ii.

Whether GIS violated the non-compete provisions of the WDAs on

24 account of CDFC’s sale of dreamGUARD mattress protector products.
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iii.

Whether the dreamGUARD mattress protector product is, in fact, a

26 “competing product” as that term is defined under the WDAs.
27

iv.

Whether Guardian, through its conduct, has waived its right to sue

28 GIS or terminate the WDAs on account of dreamGUARD sales, or is estopped from preventing
6

1 the continued sales of those products in the future.
2

i.

3

Damages
i.

GIS contends that it has suffered, and will continue to suffer, lost

4 profits, increased costs, expenditure of attorneys’ fees, and loss of good will as a direct result of
5 Guardian’s wrongful termination of the Alabama, Florida, and Tennessee Agreements and
6 threatened termination of all remaining WDAs. For example, GIS contends that the ongoing
7 threat of termination of the WDAs has remained ever present, adversely affecting GIS’s business
8 and business decisions and freezing its ability to grow that business. GIS’s expert, Peter Wrobel,
9 calculated GIS’s lost profits based, among other things, on testimony and documentary evidence
10 provided by Guardian regarding the value of the furniture protection products business in GIS’s
11 territories and Guardian’s expectation that GIS could achieve an approximate 30% market share
12 in all of those territories. Based on his analysis, Mr. Wrobel determined with reasonable
13 certainty that GIS’s lost profits are $74,469,048 as a result of a permanent impairment to GIS’s
14 business. Mr. Wrobel also determined that GIS has and will suffer lost commissions totaling
15 $1,050,049 due to Guardian’s breach of the Bob’s Discount Furniture Agreement, from
16 December 2014 (the time of the breach) through 2024.
17
18

2.

Defendants’ Statement of Disputed Factual Issues:
a.

Whether Guardian’s transmission of termination notices on October 23,

19 2013 (“Termination Notices”) with regard to the Florida, Alabama, and Tennessee Agreement
20 breached those contracts.
21

b.

Whether GIS suffered any compensable damages as a result of Guardian’s

22 transmission of the Termination Notices.
23

c.

Whether any damages that Guardian suffered as a result of Guardian’s

24 transmission of the Termination Notices were reasonable foreseeable.
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d.

Whether GIS mitigated any damages that it may have suffered as a result

26 of Guardian’s transmission of the Termination Notices were reasonable foreseeable.
27

e.

Whether GIS satisfied the purchase quotas in the Florida, Alabama, and

28 Tennessee Agreements for the months of June and July 2013.
7

1

f.

Whether the so-called Bob’s Discount Furniture Agreement was a

g.

If the so-called Bob’s Discount Furniture Agreement was a contract,

2 contract.
3

4 whether Guardian properly terminated it.
5

h.

If the so-called Bob’s Discount Furniture Agreement was a contract,

6 whether Guardian breached it by selling products covered by that “contract” to Bob’s Discount
7 Furniture.
8

i.

Whether Guardian was required to register the Mid-Atlantic Agreement

9 with Maryland regulators under the Maryland Franchise Registration and Disclosure Law.
10

j.

Whether Guardian was required to register the Mid-Atlantic Agreement

11 with New York regulators under the New York Franchises Law.
12

k.

Whether Guardian was required to register the Indiana Agreement with

13 Indiana regulators under the Indiana Franchises Law.
14

l.

Whether Guardian was required to register the Illinois Agreement with

15 Illinois regulators under the Illinois Franchise Disclosure Act.
16

m.

Whether Guardian was required to provide a Uniform Offering Circular

17 (“UFOC”) or Franchise Disclosure Document (“FDD”) under the Maryland Franchise
18 Registration and Disclosure Law, New York Franchises Law, Indiana Franchises Law, Illinois
19 Franchise Disclosure Act, FTC Franchise Rule, and/or the California Franchise Investment Law,
20 with regard to the WDAs or the “2015 Form Agreement.”
21

n.

Whether the statute of limitations on GIS’s claim under Business &

22 Professions Code section 17200 expired before it filed the instant action.
23

o.

Whether the 2015 Form Agreement constituted a franchise under the

24 California Franchise Investment Law, the FTC Franchise Rule, or any other franchise law.
25

p.

Whether Guardian “offered” the 2015 Form Agreement to GIS.

26

q.

Whether Guardian was required to register the 2015 Form Agreement with

27 any government regulatory body.
28

r.

Whether Guardian was required to present a UFOC or FDD to GIS in
8

1 connection with the 2015 Form Agreement.
2

Whether Guardian’s alleged presentation of the 2015 Form Agreement

s.

3 caused Guardian to suffer any financial loss.
4

t.

Whether GIS is entitled to restitution under California Business &

5 Professions Code section 17200 in connection with the WDAs or the 2015 Form Agreement and,
6 if so, in what amount.
7

Whether the electronic furniture protection plans constitute “Guardian

u.

8 Products” within the meaning of the Pennsylvania Agreement, Ohio Agreement, Cook County
9 Agreement, Indiana Agreement, Midwest Agreement, Alabama Agreement, and Tennessee
10 Agreement and, if so, whether Guardian has the right to establish a purchase quota above in sums
11 additional to the quotas set forth in those WDAs.
12

v.

Whether GIS’s alter-ego’s sale of micro-fleece mattress pads violates the

w.

Whether GIS’s alter-ego’s micro-fleece mattress pads that it sells are of

13 WDAs.
14

15 comparable claims or qualities to mattress pads that Guardian sells.
16

x.

Whether RPM directed or caused GIS to fail to perform under the WDAs.

17

y.

Whether Guardian is RPM’s alter ego.

18

z.

Whether CDFC, Inc. is GIS’s alter ego.

19

aa.

Whether Guardian may be held liable for any acts relating to the WDAs,

20 including breach thereof, by the party that assigned the WDAs to Guardian in 2000 or any of its
21 predecessors.
22

bb.

Pursuant to Local Rule 281(b)(6)(iii), Guardian and RPM incorporate the

23 following Specific Factual Information In Actions Involving Contracts
24
25

i.

Warehousing Distributor Agreements


The terms of the nine Warehouse Distributor Agreements

26 (“WDAs”) are set forth in the writings attached as exhibits 1 through 9 to CM/ECF Document
27 No. 120.
28



The WDAs and any modifications (i.e., addendum and
9

1 exhibits) are written; not oral. Any modifications are set forth in the writings attached as
2 exhibits 1 through 9 to CM/ECF Document No. 120.
3



None.

4



GIS breached the WDAs by selling a competing micro-

5 fleece mattress protector under the dreamGUARD brand name and by failing to satisfy the
6 purchase quotas in the Alabama, Florida, and Tennessee Agreements for the months of June and
7 July, 2013.
8



No issues of waiver or estoppel.

9



Monetary damages, injunctive relief, and attorneys’ fees



As to monetary damages – benefit of the bargain (i.e., lost

10 and costs.
11
12 profits, etc.)
13
14

i.

Bob’s Discount Furniture Agreement.


Guardian and RPM deny that the so-called Bob’s Discount

15 Furniture Agreement was ever a contract. On December 22, 2010, Guardian’s President, Ronnie
16 Holman, orally notified GIS’s Charles Gibson, Sr., Frank Gibson, and Christopher Schall, in a
17 face-to-face meeting, that Guardian would do for GIS what it was doing for Metro Guardian,
18 another distributor with an adjacent geographic territory. At that point, Guardian was paying
19 Metro Guardian five percent of the revenue that Guardian received from its sale of so-called
20 “paper” warranties (i.e., those that Guardian issued on paper itself), the only “warranties” that
21 Guardian then sold, if those sales occurred at Bob’s locations inside the geographic areas
22 covered by Metro’s WDA. Mr. Holman stated that Guardian would to do the same thing for
23 sales of that nature in the territories encompassed by GIS’s WDAs. GIS promised nothing in
24 return. Mr. Holman made the representation not in exchange for a GIS promise (which Guardian
25 never received) but, rather, because Mr. Schall had complained about the payments that
26 Guardian was making to Metro Guardian on warranty sales at Bob’s locations inside Metro
27 Guardian’s territory, payments that Guardian made only as an accommodation to Metro
28 Guardian and not because of any contractual obligation. The parties never discuss the length of
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1 the so-called contract nor the circumstance under which Guardian could terminate the so-called
2 “Bob’s Discount Furniture Agreement.”
3



Guardian and RPM contend that no so-called “Bob’s

4 Discount Furniture Agreement” was ever made, let alone subsequently modified. Nevertheless,
5 Guardian and RPM note that Messrs. Holman and Schall exchanged e-mails in January of 2011,
6 about Mr. Holman’s December 22, 2010, statement.
7



Guardian and RPM contend that no so-called “Bob’s

8 Discount Furniture Agreement” was ever made and, thus, has no validity.
9



Guardian and RPM contend that no so-called “Bob’s

10 Discount Furniture Agreement” was ever made, let alone breached.
11



Guardian and RPM contend that no so-called “Bob’s

12 Discount Furniture Agreement” was ever made. Thus, there are no issues of waiver or estoppel.
13



Guardian and RPM seek dismissal of GIS’s claims relating

14 to the so-called “Bob’s Discount Furniture Agreement.”
15



Guardian and RPM seek no monetary of other affirmative

16 relief relating to the so-called “Bob’s Discount Furniture Agreement.”
17 F.

DISPUTED EVIDENTIARY ISSUES

18

Guardian has offered the expert testimony of Karl Schulze with respect to, among other

19 things, the reasonableness and reliability of Guardian using an internally generated sales report to
20 estimate GIS’s purchases on a per-month, per-territory basis. GIS opposes the introduction of
21 this evidence at trial because, inter alia, it is an improper subject for expert testimony and,
22 further, fails to meet the requirements of FRE 702 and 703.
23

GIS believes that Guardian intends to offer evidence regarding other businesses owned

24 by the Gibson Family, other than GIS and CDFC, Inc. GIS opposes the introduction this
25 evidence because, inter alia, it is inadmissible under FRE 403 as it is irrelevant to the issues in
26 dispute and risks unfairly prejudicing GIS.
27

GIS believes that any evidentiary disputes should be resolved by motion in limine prior to

28 trial, to the extent practicable for the Court and parties to do so. GIS continues to evaluate its
11

1 case as it prepares for trial and reserves the right to seek relief with respect to any evidentiary
2 disputes that may develop or arise in the future.
3

Guardian and RPM seek the opportunity to file motions in limine seeking to exclude

4 certain witness testimony based on Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579
5 (1993), as well as, the Court’s recent ruling on the parties’ motions for summary judgment.
6 G.

SPECIAL FACTUAL INFORMATION

7

Not applicable.

8 H.

RELIEF SOUGHT

9

GIS seeks (a) a declaration that the Alabama, Florida, and Tennessee Agreements were

10 not properly terminated and are currently valid and in full effect; (b) an award of compensatory
11 damages for breach of contract in an amount according to proof, including but not limited to all
12 lost profits incurred by GIS resulting from Defendants’ alleged wrongful terminations and/or
13 breaches of the WDAs and the Bob’s Discount Furniture Agreements; (c) treble and punitive
14 damages; (d) pre-judgment interest; (e) costs of suits, including GIS’s actual and/or reasonable
15 attorneys’ and experts’ fees; and (f) such other relief as the Court deems just and proper.
16

Guardian and RPM seek:

17

1.

As to monetary damages – benefit of the bargain (i.e., lost profits, etc.).

18

2.

Declaratory Relief that the electronic furniture protection plans (“EFFPs”) are not

19 “Guardian Products” with the meaning of the Pennsylvania Agreement, Ohio Agreement, Cook
20 County Agreement, Indiana Agreement, Midwest Agreement, Alabama Agreement, and
21 Tennessee Agreement and, if so, whether Guardian has the right to establish a purchase quota
22 above in sums additional to the quotas set forth in those WDAs. The Court’s Order of 1/18/2017
23 found that EFFPs were not “Guardian Products” as that phrase is used in the Florida and Mid24 Atlantic Agreements.
25

3.

Injunctive relief.

26

4.

Attorneys’ fees and costs.

27

5.

Judgment of dismissal as to GIS’s claims.

28
12

1 I.

POINTS OF LAW

2

At this time, the parties are not aware of any points of law which are disputed, but the

3 parties reserve their rights to address disputes of law which may arise as the case continues.
4 J.

AMENDMENTS, DISMISSALS, AND ABANDONED ISSUES

5

1.

6

GIS does not anticipate abandoning any issues at this time. Defendants abandon their first,

Abandoned Issues

7 sixth, and eleventh affirmative defenses.
8

2.

9

Guardian filed its counterclaims against GIS on July 31, 2015. (Doc. 36.) GIS then filed

Dismissals

10 the operative Second Amended Complaint on July 29, 2016. (Doc. 67.) Since that time, the Court
11 dismissed the following causes of action by way of summary judgment:
12

a.

GIS’s fifth cause of action in the Second Amended Complaint;

13

b.

GIS’s California Franchise Investment Law claim based on the parties’

14

warehousing distributor agreements, as provided in the seventh cause of

15

action in the Second Amended Complaint;

16

c.

17

Guardian’s claims in all of its counterclaims that GIS failed to use best
efforts; and

18

d.

Guardian’s sixth counterclaim.

19

3.

20

None at this time, although GIS indicated at the pretrial conference that it may seek an

Amendments

21 amendment in the future.
22 K.

BIFURCATION OF ISSUES AT TRIAL

23

GIS seeks to have all claims, defenses, and issues tried before the jury in a single global

24 trial. Defendants seek to have their declaratory relief claim tried to the bench in advance of the
25 trial of the remaining matters.
26

During the pretrial conference in this matter, the parties agreed to address the issue of

27 bifurcation through a motion in limine.
28
13

1 L.

FURTHER DISCOVERY OR MOTIONS

2

On January 26, 2017, Guardian filed a Motion for Clarification, or Reconsideration, of the

3 Court’s January 18, 2017 Order Granting in Part and Denying in Part the Parties’ Motions for
4 Summary Judgment. (Doc. 143.) GIS filed its opposition to this motion on January 31, 2017.
5 (Doc. 150.) By order of the Court, no reply in support of this motion is allowed. (Doc. 151.)
6

On January 31, 2017, GIS filed a Motion for Reconsideration of this Court’s January 18,

7 2017 order regarding the parties’ motions for summary judgment. (Doc. 147.) Defendants may
8 file an opposition to this motion by no later than February 8, 2017. (Doc. 151.) By order of the
9 Court, no reply in support of this motion is allowed. (Id.)
10

The Court is scheduled to hear oral argument regarding the parties’ motions for

11 reconsideration, (Docs. 143 & 147), on February 15, 2017, at 9:30 a.m. in Courtroom 7. The
12 Court reserves the right to vacate this hearing if it determines that oral argument will not aid the
13 Court in ruling on these two motions.
14 M.

SETTLEMENT NEGOTIATIONS

15

The parties appeared for a settlement conference before U.S. Magistrate Judge Stanley A.

16 Boone on August 23, 2016, but the case did not settle. A further settlement conference has
17 been set for February 16, 2017, at 1:00 p.m. in Courtroom 10 before U.S. Magistrate Judge
18 Erica P. Grosjean.

The parties shall submit confidential settlement statements to

19 [e-mail] by no later than February 9, 2017.
20 N.

WITNESSES

21

1.

22

The following are lists of witnesses that the parties expect to call at trial.

23
24

Witness Lists

GIS’s Witness List

a.
i.

25
26

CA., 94304);
ii.

27
28

Frank Gibson (c/o Wilson Sonsini, 650 Page Mill Rd., Palo Alto,

Christopher Nolan (c/o Wilson Sonsini, 650 Page Mill Rd., Palo
Alto, CA., 94304);

iii.

Kara Himich (c/o Wilson Sonsini, 650 Page Mill Rd., Palo Alto,
14

1

CA., 94304);

2

iv.

Peter Wrobel (expert) (c/o Wilson Sonsini, 650 Page Mill Rd.,

3

Palo Alto, CA., 94304);

4

v.

Ronnie Holman (P.O. Box 22000, Hickory, N.C., 28603);

5

vi.

Johnny Green (P.O. Box 22000, Hickory, N.C., 28603);

6

vii.

Christopher Taylor (P.O. Box 22000, Hickory, N.C., 28603);

7

viii.

Darin Lease (P.O. Box 22000, Hickory, N.C., 28603); and

8

ix.

9
10
11

Angeles, CA. 90017).
Defendants’ Witness List

b.
i.

12
13

ii.

iii.

Frank Gibson (c/o Wilson Sonsini, 650 Page Mill Rd., Palo Alto,
CA., 94304);

iv.

18
19

Deborah Gibson (c/o Wilson Sonsini, 650 Page Mill Rd., Palo
Alto, CA., 94304);

16
17

Charles Gibson (c/o Wilson Sonsini, 650 Page Mill Rd., Palo Alto,
CA., 94304);

14
15

Karl Schulze (expert) (660 S. Figueroa St., Suite 1280, Los

Christopher Nolan (c/o Wilson Sonsini, 650 Page Mill Rd., Palo
Alto, CA., 94304);

v.

20

Peter Wrobel (expert) (c/o Wilson Sonsini, 650 Page Mill Rd.,
Palo Alto, CA., 94304);

21

vi.

Ronnie Holman (P.O. Box 22000, Hickory, N.C., 28603);

22

vii.

Johnny Green (P.O. Box 22000, Hickory, N.C., 28603);

23

viii.

Christopher Taylor (P.O. Box 22000, Hickory, N.C., 28603);

24

ix.

Darin Lease (P.O. Box 22000, Hickory, N.C., 28603);

25

x.

Karl Schulze (expert) (660 S. Figueroa St., Suite 1280, Los

26
27
28

Angeles, CA. 90017); and
xi.

Christopher Schall (28762 Greening St. Farmington Hills, MI.,
48334).
15

1

2.

2

The parties are cautioned that every witness they intend to call must appear on that party’s

Notice Regarding Witnesses

3 witness list. The mere fact that a witness appears on the opposing party’s witness list is not a
4 guarantee that the witness will be called at trial or otherwise be available for questioning by other
5 parties. The parties must undertake independent efforts to secure the attendance of every witness
6 each party intends to call at trial.
7

By no later than Wednesday, March 15, 2017, each party shall file and serve a final

8 witness list, including the name of each witness along with the business or home address of each
9 witness, to the extent known, and omitting witnesses listed in the Joint Pretrial Statement whom
10 the parties no longer intend to call. Only witnesses who are listed in this Pretrial Order may
11 appear on the final witness list. Further, no witness, other than those listed in the final witness list,
12 may be called at trial, with the exception of rebuttal or impeachment witnesses, unless the parties
13 stipulate or upon a showing that this order should be modified to prevent “manifest injustice.”
14 Fed. R. Civ. P. 16(e).
15 O.

EXPERT WITNESSES

16

The parties anticipate calling two expert witnesses total―Peter Wrobel and Karl Schulze.

17 P.

EXHIBITS

18

By no later than Friday, March 3, 2017, the parties shall exchange their proposed

19 exhibits to the extent they have not already done so. The parties’ counsel shall meet and conduct
20 an exhibit conference by no later than Friday, March 10, 2017, to prepare exhibit lists to the
21 extent they have not already done so.1 By no later than Wednesday, March 15, 2017, the parties
22 shall file and serve their final lists of respective pre-marked exhibits. Impeachment or rebuttal
23 evidence need not be pre-marked.
24

Only those exhibits that are listed in this Pretrial Order may appear on the final exhibit list.

25 Further, no exhibit other than those listed in the final exhibit list may be admitted at trial unless the
26
27
28

1

Joint exhibits should be marked starting with “J-1,” continuing with “J-2,” “J-3,” “J-4,” etc. Plaintiffs’ exhibits
should be marked starting with “P-201,” continuing with “P-202,” “P-203,” “P-204,” etc. Defendants’ exhibits should
be marked starting with “D-501,” continuing with “D-502,” “D-503,” “D-504,” etc.

16

1 parties stipulate or upon a showing that this order should be modified to prevent “manifest
2 injustice.” Fed. R. Civ. P. 16(e).
3

If a party attempts to admit or use for any purpose evidence that (1) was not

4 previously disclosed during discovery, and (2) should have been disclosed as an initial
5 disclosure under Rule 26(a), or as a supplemental disclosure under Rule 26(e), the Court will
6 prohibit that party from admitting or using for any purpose that evidence at trial, unless the
7 failure was substantially justified or was harmless. See Fed. R. Civ. P. 37(c)(1).
8

By no later than Thursday, March 16, 2017, the parties shall submit to the Clerk’s

9 Office all pre-marked documentary trial exhibits, including all originals and three copies. As
10 stated at the pretrial conference, the Court encourages the parties to stipulate to the admission of
11 joint exhibits where possible. The parties anticipate using the exhibits listed below.
12

1.

GIS’s Exhibit List

13
Date

14

Description

15

1

12/6/1988

Warehousing Distributor Agreement

16

2

4/2/1990

Warehousing Distributor Agreement

17

3

4/19/2007

2007 Assignment

18

4

8/30/1988

Warehousing Distributor Agreement

19

5

3/15/1999

Warehousing Distributor Agreement

20

6

5/5/1998

Warehousing Distributor Agreement

21

7

3/5/2010

2010 Assignment of Contract

22

8

11/4/1997

Warehousing Distributor Agreement

23

9

11/17/1988

Warehousing Distributor Agreement

24

10

12/21/2015

Guardian’s Responses to Interrogatories (Set One)

11

12/21/2015

Guardian’s Responses to Requests for Admission (Set
One)

12

1/25/2016

GIS’s Responses and Objections to Guardian’s First
Set of Interrogatories

25
26
27
28

17

Date

Description

13

10/4/2016

Guardian’s Supplemental
Interrogatories (Set Two)

14

1/20/2016

30(b)(6) Deposition of Johnny Green

15

4/21/2016

Deposition of Johnny Green

16

5/12/2016

30(b)(6) Deposition of Ronnie Holman

17

5/25/2016

Deposition of Christopher Taylor

18

5/25/2016

30(b)(6) Deposition of Darin Lease

19

6/16/2016

Deposition of Deborah Gibson

20

6/21/2016

Deposition of Frank Gibson

21

6/23/2016

Deposition of Christopher Nolan

22

10/6/2016

Deposition of Darin Lease

13

23

9/7/2016

Deposition of Peter Wrobel

14

24

10/7/2016

30(b)(6) Deposition of Christopher Taylor

15

25

8/12/2013

Memorandum from Johnny Green to Guardian
Distributors

26

8/19/2013

Notice of breach of the Tennessee Agreement from
Johnny Green to Chuck Gibson

27

8/19/2013

Notice of breach of the Alabama Agreement from
Johnny Green to Chuck Gibson

28

8/19/2013

Notice of breach of the Florida Agreement from
Johnny Green to Chuck Gibson

29

8/30/2013

Letter from Charles Gibson to Johnny Green
regarding notices of breach of the Alabama, Florida,
and Tennessee Agreements

30

10/23/2013

Notices of termination of the Alabama, Florida, and
Tennessee Agreements from Johnny Green to Chuck
Gibson

31

12/9/2014

January 2015 form “Distributorship Agreement”
proposed by Guardian to GIS on December 9, 2014

32

1/13/2011

Email correspondence between Ronnie Holman and
Christopher Schall setting forth terms of the Bob’s

1
2
3
4
5
6
7
8
9
10
11
12

16
17
18

Responses

to

GIS’s

19
20
21
22
23
24
25
26
27
28

18

Date

1
2

Description
Discount Furniture Agreement

3
33

12/6-10/2013

Email correspondence between Johnny Green and
Frank Gibson discussing Mr. Green’s proposed
amendment to the Bob’s Discount Furniture
Agreement

34

11/12/2014

Notice of termination of the Bob’s Discount Furniture
Agreement from Johnny Green to Chuck Gibson

35

12/9/2014

Memorandum from Johnny Green to Frank Gibson
attaching Guardian’s proposed form “Distributorship
Agreement”

36

9/12-15/2014

Email correspondence between Christopher Nolan
and third-party Guardian distributor, Guardian North
Central, regarding distributor’s purchase of
dreamGUARD products

37

8/14/2013

Internal Guardian email correspondence
dreamGUARD, dated August 14, 2013

38

6/1/2012

Authorized Extended Service Program Agreement
between Chartis WarrantyGuard, Inc. (“AIG”) and
Guardian

39

6/17/2013

Email correspondence between Kevin Warrix of AIG
and Johnny Green and Darin Lease re Pre-Sell
Proposal

40

7/1/2013

Email correspondence between Kevin Warrix of AIG
and Johnny Green and Darin Lease re Pre-Sell
Proposal, and attachment

41

12/10/2014

Email correspondence between Chris Taylor and
Johnny Green re GIS market potential

42

GUARD
00000827-932

Memorandum re GIS market potential, authored by
Johnny Green in advance of February 2015

43

11/30/2014

Email from Johnny Green to Christopher Taylor
regarding GIS Shipment Details

44

8/12/2013

Email correspondence from Darin Lease to Johnny
Green re Quota Methodology

45

4

6/7/2013

Email correspondence from Greg Webb to Johnny

5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26

re

27
28
19

Date

1
2
3

Description
Green re Distributor Quotas

46

1/17/2015

Internal Guardian document entitled “FY2015
Marketing/Sales” sent from Johnny Green to
Christopher Taylor on January 17, 2015

47

GUARD
00002491-2496

Guardian internal “FY2015 Competitive Review”

48

2/4/2013

Email correspondence from Greg Webb to Johnny
Green and Ronnie Homan re Mattress Pads

49

11/5/2014

Email correspondence from Johnny Green to Eugene
Alleto re New Pattern (for mattress pads)

50

GUARD
00008834-8873

Internal presentation entitled “Business Review &
Analysis: A 30-Day Perspective,” presented by
Johnny Green to Guardian executives in January 2013

51

4/21/2016

Letter from Johnny Green to Chuck Gibson re
Records Request

52

11/30/2014

Internal Guardian spreadsheet entitled “Distribution
Sales by Territory FY14” / cover Email
correspondence between Johnny Green and Darin
Lease enclosing same

53

8/30/2013

Guardian spreadsheet entitled “Individual Distributor
Market Share” / cover Email correspondence between
Johnny Green and GIS enclosing same

54

7/12/2013

Email correspondence between Kevin Warrix of AIG
and Johnny Green and Darin Lease re Pre-Sell
Proposal

55

5/23/2016

Printout from RenCom Group, LLC’s (a.k.a.
“Renaissance”) website regarding Renaissance’s
offering of Guardian furniture protection plans,
printed May 23, 2016

56

2/9/2015

Internal Guardian document entitled “GIS Sales
Performance and Market Share Analysis”

57

GUARD
00002643-47

Internal Guardian document entitled “Guardian
Protection Products FY2016 Marketing / Sales”

4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

20

Date

Description

58

8/30/2013

Email correspondence from Chuck Gibson to Johnny
Green enclosing Sales Quota Action Plan

59

8/22/2013

Email correspondence between Kara Copeland and
Johnny Green re Quota Notices

60

9/27/2013

Email correspondence between Chuck Gibson and
Johnny Green re Quota Letter 2

61

10/25/2013

Email from Frank Gibson to Johnny Green and
Ronnie Holman re GIS Terminations

62

12/2/2013

Email from Frank Gibson to Johnny Green enclosing
letter re terminations

63

1/23/2011

Email correspondence between Ronnie Holman and
Chris Schall re mattress pads

64

2/6/2013

Email correspondence from Chris Nolan to Frank and
Debbie Gibson re conversation with Ronnie Holman

65

\

Internal Guardian spreadsheet entitled “Distribution
Sales by Territory FY2014”

66

9/18/2015

Internal Guardian document entitled “Renaissance
Partners Operational Narrative” drafted by
Christopher Taylor

67

9/29/2014

Email correspondence from Christopher Taylor to
Johnny Green attaching letter from Guardian to
Renaissance regarding proposed business partnership
between the two companies

68

GUARD
00009205

Spreadsheet produced by Guardian entitled “Bob’s
Sales”

69

GUARD 000423

Copy of Pennsylvania Agreement with attached
“Memorandum #78”

70

GUARD
00000762

Information
pamphlet
entitled
“Guardian
Underwritten Warranty Programs: Moving to the
Next Generation of Secure and Compliant Programs,”
regarding Guardian’s conversion to electronicallyregistered furniture protection plans

71

GUARD
00000761

Addendum to GUARD 00000762 entitled “Guardian
Brand Warranty Cover Pages” for electronicallyregistered furniture protection plans

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

21

Date

Description

72

GUARD
00000757

Addendum to GUARD 00000762 showing “Terms
and Conditions” for electronically-registered furniture
protection plans

73

7/18/2014

Email correspondence
Renaissance

74

5/22/2014

Email correspondence from Renaissance to Chris
Nolan

75

6/21/2014

Email correspondence between Renaissance and
Chris Nolan

76

GIS_002145
GIS_002244

GIS Purchase Reports Detailing and Summarizing
Purchases of Guardian Products

77

GIS_003323
GIS_003328

GIS P&L Statements for 2010-2015

78

11/11/2016

Screenshot of Guardian’s web page regarding its
electronically-registered furniture protection plans,
https://www.guardianproducts.com/protection-plans/,
taken on November 11, 2016

79

12/12/2016

Copy of Bob’s Discount Furniture web page
regarding
“Bob’s
Goof
Proof,”
http://www.mybobs.com/goof-proof-plus, printed on
December 12, 2016

80

7/1/2016

Report of Peter D. Wrobel

81

10/14/2016

Supplemental Report of Peter D. Wrobel

82

2/10/2015

Email correspondence from Chris Schall to Chris
Nolan, Frank Gibson, Debbie Gibson re Bob and
Stickley’s commissions

83

2/6/2013

Email correspondence from Chris Nolan to Frank
Gibson, Debbie Gibson re Bullet Point 0 Ronnie
Holman

84

4/18/2012

Email correspondence from Christopher Schall to
Frank Gibson, Debbie Gibson re Implemenation
Deadline

85

8/1/2012

Memo from Guardian to Greg Webb re
Correspondence Received on August 1, 2012
“Transition to Chartis Warranties Update”

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

22

from

Chris

Nolan

to

Date

Description

86

GIS_000587
GIS_000593

Letters between Charles Gibson and Greg Webb re:
distribution rights, dated August 9, 2010, August 27,
2010, December 7, 2010

87

4/13/2014

Memorandum from Todd Edwards to Distributors,
Johnny Green re Performance Review

88

GUARD
00006296

Distributor Sales YOY

89

11/10/2013

Email correspondence from Johnny Green to Frank
Gibson re New contract

90

9/27/2013

Email correspondence from Charles Gibson to Johnny
Green, Todd Edwards re Quota Letter 2

91

8/30/2013

Letter from Charles Gibson to Johnny Green re Sales
Quota Action Plan

92

9/27/2013

Letter from Charles Gibson to Johnny Green re Sales
Quota: Alabama, Florida and Tennesse

93

2/7/2013

Memo from Johnny Green to Guardian Distributors,
Ronnie Holman, Tim Vaughan, Eric Mawyer, Diann
Ebersole, Damien Narayan re Inventories

94

6/7/2013

Email correspondence from Chris Nolan to Debbie
Gibson, Frank Gibson re Year End/June Distribution
Report

95

1/25/2016

Memo from Johnny Green to Guardian Distributors,
Ronnie Holman re June Report

96

10/29/2013

Email correspondence from Christopher Nolan to
Debbie Gibson, Frank Gibson re Correspondence
w/Johnny re quota letters

97

9/6/2013

Email correspondence from Christopher Nolan to
Debbie Gibson, Frank Gibson re DG distribution
agreement

98

11/7/2013

Email correspondence from Kara Copeland to Debbie
Gibson, Frank Gibson re Monday Quota Conference
Call Notes

99

7/3/2013

June, July and August Quota Report Conference Call

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

23

Date

Description

100

1/10/2011

Email correspondence from Ronnie Holman to
Christopher Schall re Follow-up of distributor
agreement

101

4/30/2015

Memo from Chris Taylor to Guardian Distributors re
Notice of Pricing Changes - Effective June 1, 2015

102

GUARD
00001929

Guardian Protection Plan Pricing - Distributor Price
List, effective June 1, 2015

103

1/12/2016

Second Amended Notice of Depo of GPP

104

12/6/1988

Guardian Protection Productions, Inc. Warehousing
Distributor Agreement for Areas of Pennsylvania

105

12/6/1988

Guardian Protection Productions, Inc. Warehousing
Distributor Agreement for Pennsylvania, Maryland,
DC, areas of New York

106

4/2/1990

Guardian Protection Productions, Inc. Warehousing
Distributor Agreement for Ohio

107

8/30/1988

Guardian Protection Productions, Inc. Warehousing
Distributor Agreement for Cook County, Illinois

108

3/15/1991

Guardian Protection Productions, Inc. Warehousing
Distributor Agreement of Indiana

109

5/5/1998

Guardian Protection Productions, Inc. Warehousing
Distributor Agreement for Iowa, parts of Illinois,
parts of Missouri

110

11/4/1997

Guardian Protection Productions, Inc. Warehousing
Distributor Agreement for Alabama

111

4/11/1989

Guardian Protection Productions, Inc. Warehousing
Distributor Agreement for Broward and Dade
County, Florida

112

11/4/1997

Guardian Protection Productions, Inc. Warehousing
Distributor Agreement for Tennessee

113

9/17/2013

Memorandum,
Johnny Green
Distributors re August Results

114

N/A

Step-by-step
Procedures

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25

to

Guardian

26
27
28
24

Web-based

Warranty

Registration

Date

Description

115

6/11/2013

GIS Purchase Order to
Confirmation

116

7/10/2013

GIS Purchase Order to Guardian and Order
Confirmation,

117

6/6/2013

GIS Purchase Order to Guardian and Order
Confirmation

118

10/21/2014

E-mail, Johnny Green to Chris Nolan with GISAmerican Freight – Shipped
vs. Registered
attachment

119

GUARD
00002052

Three-page Excel spreadsheets columns Distributor,
Territory, Terminated, Status, Strategy, Candidate,

120

3/13/2012

Memo from Greg Webb to Guardian Distributors,
Ronnie Holman, Tim Vaughan, Eric Mawyer,
Damien Narayan, Greg Hadfield, Diann Ebersole re
Distributor Meeting to
Introduce National
Underwritten Warranty Program

121

GUARD
00008875-8877

Timeline created by Johnny Green

122

12/5/2013

E-mail string Guardian North Central to Johnny
Green, Subject Advertising for sales rep in North and
South Dakota

123

12/8/2014

E-mail correspondence from Ronnie Holman to
Johnny Green re GIS with redaction

124

12/7/2012

Email correspondence from Ronnie Holman to Greg
Webb, Johnny Green, Wesley Harris re Tellor visit

125

12/10/2012

Email corresondence from Johnny Green to Ronnie
Holman re Tellor Meeting

126

120/10/12

Email correspondence from Johnny Green to Ronnie
Holman re GPP Business Review (attached)

127

12/11/2012

Email from J. Green to R. Holman with attachment

128

GUARD
00001040.xls

Document titled R. Holman Analysis

129

10/2/2012

Email correspondence from Ronnie Holman to Greg
Webb, Wesley Harris re Guardian Innovative

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24

Guardian and Order

25
26
27
28

25

Date

1
2

Description
Solutions P&L (attached)

3
130

2/11/2013

Email correspondence from Johnny Green to Ronnie
Holman re President's letter

131

1/31/2011

Email correspondence from Ronnie Holman to
Christopher Schall, Greg Webb re pads and ereg

132

4/26/2011

Notice of Subpoena to RPM Wood Finishes Group,
Inc.

133

5/17/2016

Notice of Deposition
Products, Inc.

134

5/28/2014

Email correspondence from Darin Lease to Johnny
Green re GIS Bob's Commissions

135

11/30/2014

Email correspondence from Chris Taylor to Johnny
Green, Darin Lease re GIS Shipment Details

136

11/30/2014

Email correspondence from Chris Taylor to Darin
Lease, Johnny Green re GIS Shipment Details

137

4/7/2015

Email correspondence from Chris Taylor to Darin
Lease, Louis Romenstant, Johnny Green re GIS
Accounts

138

1/27/2015

Email correspondence from Chris Taylor to Johnny
Green re Response to GIS

139

1/29/2015

Email string between Chris Taylor to Chris Nolan,
Johnny Green, Todd Edwards re Fw: Web Portal
Request

140

GUARD
00009208

Excel spreadsheet titled Distribution

141

GUARD
00009236

Excel spreadsheet titled Working

142

GUARD
00009218

RPM Wood Response to GIS Interrogatories Set One

26

143

10/4/2016

GPP’s Suppl Response to GIS Interrogs Set Two

27

144

9/12/2016

Amended Notice of Depo of GPP

4
5
6
7
8
9
10
11
12

of

Guardian

Protection

13
14
15
16
17
18
19
20
21
22
23
24
25

28
26

Date

1

Description

2

145

9/12/2016

Amended Notice of Depo of RPM Wood

3

146

N/A

Web page from RPM Wood

4

147

N/A

Spreadsheet Guardian 62-089

5

148

9/22/2016

Document entitled RPM Entity; Guardian Protection
Production East Div

149

9/22/2016

Document Titled RPM Entity, RPM Wood Finishes
Group, Inc.

150

3/6/2015

Email string between Chris Taylor, Louis Romestant
re: Renaissance Partners - Guardian Program Outline

151

2/27/2015

Email string between Chris Taylor, Frank Amendola,
Darin Lease re: Renaissance and Pet Damage
Underwriting

152

10/2/2014

Email string between Chris Taylor, Rick Wright re:
Guardian Program Outline for Renaissance (attached)

14

153

7/27/2015

Email Rick Wright to Chris Taylor

15

154

7/1/2016

Defendant’s Expert Witness Disclosure

16

155

8/1/2016

Pl’s Amended Notice of Deposition of Expert
Schulze

156

N/A

Index to Documents in SHL Binders

157

7/13/2016

Invoice #14555 from SHL to Gordon Rees

158

8/1/2016

Supplemental and Rebuttal Report of Karl J. Schulze

159

10/5/2016

Report of K. Schulze re claims related to Renaisance

22

160

N/A

Schulze Testimony Publishing and Speaking History

23

161

8/5/2013

Guardian Protection Products, Inc. Invoice #2805688
sold to GPP Northeast

162

7/1/2016

Plaintiff’s Expert Witness Disclosure

163

5/25/2016

Excerpts from the Deposition of Christopher Taylor

164

4/21/2016

Excerpts from the Deposition of Johnny Green

165

N/A

Guardian

6
7
8
9
10
11
12
13

17
18
19
20
21

24
25
26
27
28

27

Protection

Products

FY2016

Date

1
2

Description
Marketing/Sales

3

166

N/A

Bob’s Sales Spreadsheet

4

167

Depo Ex. 126

SHL Binder1 provided by Karl Schulze

5

168

1/16/1995

Letter from Greg Freeman to Charles Gibson re
distributor relationship between GPP Northeast and
Guardian Protection Products, Inc.

169

GUARD
000030-33

Guardian Residential Furniture Terms and Conditions

170

12/18/2014

Letter from Christopher Taylor to Christopher Nolan
re: Sales and Operations Agreement for American
Freight

171

3/3/2009

Distributor Policy Letter for the Sale of Crypton
Branded Products

172

GUARD
000299-299

Fiscal Year 2014 Results spreadsheet

173

GUARD
000313-313

R. Holman Analysis, Guardian West spreadsheet

174

1/11/2000

Letter from Donald Smith to Jack Castella re: interest
in the state of Kentucky

175

12/9/2015

Redline version of a memo from Johnny Green to
Frank Gibson, Ronnie Holman, Ken Nota, Chris
Taylor re: December 17 Meeting

176

GUARD
000628-639

Redline Distributorship Agreement between GPP and
GIS

177

GUARD
001687-1692

Guardian Product Catalog

178

GUARD
001698-1708

Guardian Underwritten Warranty Programs - Moving
to the Next Generation of Secure and Compliant
Programs

179

1/8/2015

Email string between Frank Gibson to Johnny Green
re: deliveries and shipping issues

180

6/12/2013

Email string between Debbie Gibson, Johnny Green,

6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

28

Date

1
2
3

Chris Nolan re: Kentucky Agreement
181

1/15/2014

Email from Frank Gibson to Johnny Green re: Tolling
Agreement

182

1/15/2014

Email from Frank Gibson to Johnny Green re:
meeting

183

1/7/2015

Email from Frank Gibson to Johnny Green,
Christopher Nolan re: deliveries and shipping issues

184

5/14/2015

Email from Frank Gibson to Johnny Green re:
purchase order

185

4/1/2016

Email string between Chris Taylor, David Bregler,
Ted Gular re: Guardian/Renaissance/ABV Protection
Plan Orders

186

10/1/2014

Letter from Christopher Taylor to Ted Gular and
David Breglar re: Guardian Protection Plan
Development

187

GUARD
00010583-10583

Warranty Services Processes, Terms and Conditions

188

GUARD
00010903-10903

"What Happens When A Consumer Purchases A
Guardian Program?"

189

7/23/2014

Email string between Chris Taylor, Johnny Green,
Damien Narayan re: Projects (Rep.Account
Spreadsheet attached)

190

1/27/2015

Email string between Damien Narayan, Chris Taylor,
Kim LeFevers re: New Customer Setup - Tennessee

191

11/5/2014

Email string between Johnny Green, Chris Taylor re:
New Pattern

192

11/30/2014

Email from Chris Taylor to Johnny Green, Darin
Lease re: GIS Shipment Details (GIS Shipment
Details spreadsheet attached)

193

7/25/2014

Email string between Chris Taylor, Johnny Green re:
Guardian Territory (Territory Strategy spreadsheet
attached)

194

1/20/2011

Email string between Ronnie Holman, Greg Webb re:
mattress pads

4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

Description

29

Date

Description

195

3/26/2012

Email string between Greg Webb, Ronnie Holman,
Christopher Schall, Tim Vaughan, Eric Mawyer,
Greg Hadfield, Chris Nolan re: April Distributor
Meeting

196

7/11/2014

Memo from Todd Edwards to Distributors, Johnny
Green re: Performance Summary

197

8/27/2014

Memo from Todd Edwards to Distributors, Johnny
Green re: Performance Review July

198

2/5/2013

Email string between Johnny Green, Ronnie Holman,
Greg Webb re: GIS - Bob's

199

11/30/2014

Email string between Chris Taylor, Darin Lease,
Johnny Green re: GIS Shipment Details

200

11/30/2014

Email string between Johnny Green, Chris Taylor,
Darin Lease re: GIS Shipment Details

201

11/11/2013

Email string between Todd Edwards, Johnny Green
re: Mattress Pad and Pillow Protector forecast

202

1/29/2013

Email string between Sara Ramseur, Johnny Green re:
Distributor commissions (spreadsheets attached)

203

10/1/2013

Email string between Bob Ellerby, Johnny Green,
Karen Ellerby, Todd Edwards re: September
Numbers

204

1/29/2013

Email string between Eric Foucrier, Johnny Green re:
Update from Las Vegas

205

2/8/2013

Email string between Ronnie Holman, Johnny Green,
Greg Webb re: GIS - Bob's

206

12/5/2013

Email string between Johnny Green, Todd Edwards
re: Advertising for sales rep in North and South
Dakota

207

12/11/2013

Memo from Todd Edwards to Guardian Distributors,
Johnny Green re: November Review

208

11/4/2013

Email string between Damien Narayan, Johnny
Green, Tim Vaughan re: Some Quick Thoughts

209

9/17/2013

Memo from Todd Edwards to Guardian Distributors,
Johnny Green re: Introduction

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

30

Date

Description

210

8/12/2013

Memo from Johnny Green to Guardian Distributors,
Ronnie Holman re: July Results

211

10/8/2013

Memo from Todd Edwards to Guardian Distributors,
Johnny Green re: September

212

10/24/2013

Email from Guardian North Central to Johnny Green,
Eric Mawyer, Todd Edwards re: Guardian Bedding
Accessory Program

213

2/25/2014

Email string between Guardian North Central and
Johnny Green re: Contract

214

5/28/2015

Email string between Frank Gibson and Johnny
Green re: follow-up

215

1/6/2014

Email from Johnny Green to Frank Gibson, Todd
Edwards, Ronnie Holman, Ken Nota re: contract

216

3/13/2014

Memorandum from Todd Edwards to Distributors,
Johnny Green re February 2014 Performance Review

217

10/9/2013

Memo from Todd Edwards to Guardian Distributors,
Johnny Green re: September

218

1/10/2014

Memo from Todd Edwards to Distributors, Johnny
Green re: Performance December 2013

219

7/11/2013

Memo from Johnny Green to Guardian Distributors,
Ronnie Holman re: June Report

220

GUARD
00000632-632

Handwritten Notes

20

221

5/23/2011

Furniture Today newspaper front page

21

222

4/14/2014

Email string between Christopher Nolan, Frank
Gibson, Debbie Gibson, Chuck Gibson re: March
Distributor Update (attached)

223

11/12/2013

Email string between Christopher Nolan, Debbie
Gibson, Frank Gibson, Chuck Gibson re: October
Performance Update (attached)

224

5/14/2012

Email between Christopher Schall, Ronnie Holman,
Greg Web, Joann Seaman, Debbie Gibson, Frank
Gibson, Chris Nolan, Vincent Scaglione re: Ongoing
Sales Opportunities

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19

22
23
24
25
26
27
28

31

Date

Description

225

4/18/2012

Email from Christopher Schall to Ronnie Holman,
Greg Web, Tim Vaughan, Eric Mawyer, Debbie
Gibson, Frank Gibson, Chris Nolan re: Reply to
Chicago Meeting (Proposal attached)

226

12/11/2013

Memo from Todd Edwards to Distributors, Johnny
Green re: November Review

227

11/12/2013

Memo from Todd Edwards to Distributors, Johnny
Green re: October

228

9/7/2011

Email string between Christopher Schall, Tom Toma,
Chris Nolan re: dreamGuard Pricing

229

1/2/2013

Email string between Debbie Gibson, Chris Nolan re:
dreamGuard Pricing - Tom Toma Guardian Authority

230

6/28/2013

Email string between Chris Nolan, Debbie Gibson,
Frank Gibson re: Levins

231

3/15/2012

Email string between Christopher Schall, Frank
Gibson, Chuck Gibson, Chris Nolan re: Mandatory
Distributor Meeting (Meeting Letter attached)

232

10/10/2013

Email string between Christopher Nolan, Debbie
Gibson, Frank Gibson, Chuck Gibson re: September
Update (Sales Summary, Performance attached)

233

8/10/2012

Email from Chris Nolan to Greg Webb, Debbie
Gibson, Frank Gibson, Christopher Schall re: Letter
from GIS (attached)

234

10/25/2013

Email string between Debbie Gibson, Christopher
Nolan, Frank Gibson re: Distributor Conference Call

235

5/1/2007

Bill of Sale between Guardian Midwest and GPP, Inc.

236

8/1/2012

Memo from Greg Webb to Guardian Distributors re:
Transition to Chartis Warranties Update

237

8/27/2014

Email string between Christopher Nolan, Debbie
Gibson, Frank Gibson, Chuck Gibson re: July
Performance Update (attached)

238

10/29/2013

Email string between Kara Copeland, Debbie Gibson,
Frank Gibson re: Product Branding Update
(Certification attached)

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

32

Date

Description

239

11/5/2013

Email string between Guardian North Central and
Chris Nolan re: Guardian Bedding Accessory
Program

240

2/25/2007

Email from Chris Schall to Chris Nolan re: Jack
Castella letter

241

5/10/2005

Email string between Linda Lemar, Chuck Gibson,
Ronnie Holman re: Guardian Neast Name Change
Consent (attached)

242

10/19/2012

Email from Diann Ebersole to various distributors,
Ronnie Holman, Greg Webb, Johnny Green, Eric
Mawyer, Tim Baughan, Greg Hadfield, Damien
Narayan re: Announcement: Johnny Green intro
(attached)

243

5/11/2010

GWDA Conference Call Agenda

244

Aug-14

Guardian Protection
Branding Guidelines

245

6/25/2012

Email string between Eric Mawyer, Christopher
Schall re: Licensed to Sell Warranties in California
and Florida

246

7/5/2012

Email string between Christopher Schall, Diann
Ebersole, Chis Nolan, Greg Webb, Geoff Poole,
Frank Gibson, Debbie Gibson re: More Chartis
Conversions from GIS

247

5/2/2012

Email string between Tim Vaughan to Chis Nolan,
Chris Schall, Eric Mawyer, Frank Gibson, Greg
Webb, Tim Vaughan re: The RoomPLace

21

248

GIS_001079-1103

Compilation of emails

22

249

4/18/2012

Email string between Ronnie Holman, Christopher
Schall, Greg Webb re: Implementation Deadline

250

1/21/2014

Memo from Todd Edwards to Guardian Products
Distributors, Johnny Green, Eric Mawyer, Tim
Vaughan re: Guardian Rebranding Initiative

251

9/15/2014

Email from Christopher Nolan to Debbie Gibson,
Frank Gibson Re: Fwd: Mattress Protection Program
email

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20

Products,

Inc.

Corporate

23
24
25
26
27
28
33

Date

Description

252

11/5/2013

Email from Christopher Nolan to Debbie Gibson,
Frank Gibson Re: Fwd: Guardian Bedding Accessory
Program

253

2/7/2013

Email from Christopher Nolan to Debbie Gibson,
Frank Gibson Re: Fwd: Memo from Guardian

254

5/4/2012

Email from Greg Webb to Chris Nolan, Crish Schall,
Debbie Gibson, Frank Gibson, Ronnie Holman re:
Meeting with GIS

255

1/15/2014

Email from Johnny Green to Frank Gibson re: Tolling
Agreement

256

6/7/2012

Email from Christopher Schall to Greg Webb, Chris
Nolan, Darin Lease, Damien Narayan re: Update on
Chart Progress

257

3/27/2012

Emails between Christopher Schall, Chris Nolan and
Frank Gibson re: April Distributor Meeting

1
2
3
4
5
6
7
8
9
10
11
12
13

258

Backup Documents for GIS Purchase Reports (2010 2015)

259

Samples of Various Products Distributed by GIS and
Guardian, Including Physical Products, Product
Labels, and Warranty Documents (Terms and
Conditions, Transmission Documents, Cover Sheets,
etc.)

14
15
16
17
18

GIS 001743 –
002137; 002245 –
003322

260

19

Various Purchase Orders, Order Confirmations, and
Invoices

20
21
2.

22
23
24

Defendants’ Exhibit List
Description

1

Second Amended Notice of Depo of GPP, Inc. w/list of examination topics dated
01/12/16

26

2

Warehousing Distributor Agreement for Pennsylvania

27

3

Warehousing Distributor Agreement for Pennsylvania, Maryland, D.C. and New
York

25

28

34

Description

1
4

Warehousing Distributor Agreement for Ohio

5

Warehousing Distributor Agreement for Illinois

6

Preliminary Guardian Warehousing Distributor Agreement for Indiana

7

Warehousing Distributor Agreement for Iowa

6

8

Warehousing Distributor Agreement for Alabama

7

9

Warehousing Distributor Agreement for Florida

8

10

Warehousing Distributor Agreement for Tennessee

9

11

Letter dated 08/12/13 to Guardian Distributors, Ronnie Holman and GPP
Directors from Johnny Green re July results (GUARD 001009-1011)

12

Letter dated 09/17/13 to Guardian Distributors, Ronnie Holman and GPP
Directors from Johnny Green re August results (GUARD 001009-1011)

13

Letter dated 08/19/13 to Chuck Gibson from Johnny Green re Sales Quotas for
Tennessee

2
3
4
5

10
11
12
13

(GUARD 000869)
14
15

14

Letter dated 08/19/13 to Chuck Gibson from Johnny Green re Sales Quotas for
Alabama

16

(GUARD 000865)

17

15

Letter dated 08/19/13 to Chuck Gibson from Johnny Green re Sales Quotas for
Florida (GUARD 000863)

16

Letter dated 08/30/13 to Johnny Green from Charles Gibson re Sales Quota Action
Plan

18
19
20
21

(GUARD 000561-563)
17

Email dated 10/24/13 from Kara Copeland to Frank Gipson re Distributor
Agreement Termination Notices w/attached notices

18

Distributorship Agreement between Guardian Protection Products, Inc. and G.P.P.,
Inc. (unsigned)

19

Email chain dated 01/13/11 from Chris Schall to Ronnie Holman, cc: Debbie and
Frank Gibson, Greg Webb, R. Holman re Bob’s Discount 5%

20

Email dated 08/20/14 to Debbie and Frank Gibson from Chris Nolan re Bob’s idea
(2 pages)

22
23
24
25
26
27
28

35

Description

1
21

Letter dated 11/12/14 to Chuck Gibson from Johnny Green re Termination of
Commissions for Bob’s Discount Furniture

22

Memorandum dated 12/09/15 to Frank Gibson from Johnny Green Re: December
17th Meeting

5

23

Step-by-step Web-based Warranty Registration Procedures (GUARD 000017-23)

6

24

Email chain dated 09/15/14 from Christopher Nolan to Debbie and Frank Gibson
re dreamGUARD products

25
8

Email dated 08/14/13 from Johnny Green to Ronnie Holman re dreamGUARD
program

9

(GUARD 001459)

2
3
4

7

10

26

11

(GUARD 00008798 - 8833)

12
13

27

28

16
17

20

29

Document titled AIG Guardian Program Pre-Sell Proposal (GUARD 000087598763)

30

Email dated 12/10/14 from Chris Taylor to Johnny Green re Market Potential –
GIS States w/attached spreadsheet (GUARD 00001845-1846.xlsx)

31

Document re GPP-GIS Meeting dated 02/09/15 re contract discussion (GUARD
00000827-863)

32

Confidential email dated Nov. 2014 from Johnny Green to Chris Taylor re GIS
shipment details

21
22
23

(GUARD 00003979)

24
25

33

Email from Darin Lease to Johnny Green dated 08/12/13 re Distributor Sales vs
Quotas Methodology & Assumptions w/attached Warehousing Distributor
Agreement for Florida (GUARD 00005527)

34

Purchase Order # EXT061113AF dated 06/11/13

26
27
28

Email dated 07/01/13 from Darin Lease to Kevin Warrix, Frank Amendola and
others re AIG Guardian Pre-Sell Proposal Working Copy
(GUARD 00008758)

18
19

Email string, dated 06/17/13 from Kevin Warrix to Johnny Green and Darin Lease
(GUARD 00008892 - 8895)

14
15

Authorized Extended Service Program Agreement 06/01/12 between Chartis
Warranty Guard, Inc. and Guardian Protection Products, Inc., Bates

(GIS 001819 and 001818)
36

Description

1
2

35

(GIS 001821-1822)

3
4

36

39

7
8

Purchase Order # EXT6713AF dated 06/06/13
(GIS 001899 -1900); Memo dated 08/12/13 to Guardian Distributors from Johnny
Green re July results (GUARD 001009-1011)

5
6

Purchase Order # EXT071013C dated 07/10/13

E-mail dated 10/21/14 from Johnny Green to Chris Nolan w/attached document re
GIS-American Freight - Shipped vs. Registered (GUARD 00000894-895)

40

Email string dated 06/07/13 from Webb to Green, w/attached Distributor Purchase
Requirement Summary (GUARD 00008554 – 8555)

41

E-mail dated 01/17/15 Green to Taylor w/attached Guardian Protection Products
FY2015 Marketing/Sales (GUARD 00002485-2490)

42

Guardian Protection Products FY2015 Competitive Review document (GUARD
00002491-2496)

43

3-page Excel spreadsheet regarding Distributor Territory, Terminated, Status,
Strategy, Candidate (GUARD 00002052)

44

Email string dated 02/04/13 from Greg Webb to Johnny Green and
Holman re mattress pads (GUARD 00001666 - 16667)

45

Email dated 11/05/14 from Johnny Green to Eugene Alletto re New Pattern
(GUARD 00006229)

46

Memo dated 03/13/12 to All Guardian Distributors, Ronnie Holman, Tim
Vaughan, Eric Mawyer, Damien Narayan, Greg Hadfield, Dianne Ebersole from
Greg Webb re Distributor Meeting to Introduce National Underwritten Warranty
Program

9
10
11
12
13
14
15
16
17
18
19

Ronnie

20
(GUARD 000444-445; GUARD 000561-563)
21
47
22

Guardian Business Review &Analysis, a
30-Day Perspective (GUARD 00008834 - 8873)

23
24

48

Timeline titled “Guardian Pre-Johnny Green”
(GUARD 00008875-8877)

25
26
27

49

Email dated 12/05/13 from Guardian North Central to Johnny Green, Todd
Edwards re Advertising for Sales Rep in North and South Dakota
(GUARD 0006150-6155)

28
37

Description

1

3

50

Redacted email dated 12/08/14 from Ronnie Holman to Johnny Green re GIS
Distribution and Quotas (GUARD 00008467)

51

Letter dated 04/21/16 to Chuck Gibson from Johnny Green; and email dated
04/29/16 from Johnny Green to Frank Gibson re request for GIS’ shipping records

52

Email dated 12/07/12 from Ronnie Holman to Greg Webb, Johnny Green and
Wesley Harris re Tellor visit (GUARD 00009101)

53

2

Email dated 12/10/12 from Johnny Green to Ronnie Holman re meeting with Greg
(GUARD 00009143)

54

Email dated 12/10/12 from Johnny Green to Ronnie Holman w/attached
presentation titled “Guardian Business Review & Analysis”

4
5
6
7
8
9

(GUARD 00009102 – 9142)

10
55

Email dated 12/11/12 from Johnny Green to Ronnie Holman Ronnie Holman
w/attached presentation titled “Guardian Business Review & Analysis” (GUARD
00009144 – 9184)

56

5-page document titled “R Holman Analysis” and “Guardian West” (GUARD
00001040.xls)

57

Email dated 10/02/12 from Ronnie Holman re: Guardian Innovative Solutions
P&L w/attached 4-page spreadsheet

58

Email dated 02/11/13 from Johnny Green to Ronnie Holman re: President's letter
(GUARD 00004035)

59

Email dated 01/31/11 from Ronnie Holman to Chris Schall regarding pads and
competitors ereg system (GUARD 00006742)

19

60

Notice of Subpoena to RPM Wood Finishes Group, Inc.

20

61

NOT USED

21

62

Email chain from Darin Lease to Johnny Green re GIS update by state (GUARD
0008514-8515)

23

63

Spreadsheet re Distribution Sales by Territory FY14 (GUARD 00008522.xlsx)

24

64

Email chain dated 08/20/14 from Chris Nolan to Debbie and Frank Gibson re
backup sales data for FL, TN and AL w/attached spreadsheet

65

Email chain dated 07/12/13 from Kevin Warrix to Darin Lease and Frank
Amendola, cc: Johnny Green re AIG Guardian Pre-Sell Proposal Working Copy
(GUARD 00008890-8891)

11
12
13
14
15
16
17
18

22

25
26
27
28

38

Description

1
2

66

3
4

Email dated 05/28/14 from Darin Lease to Johnny Green re GIS Bob’s
Commissions
(GUARD 00007774)

70

Advertisement re Renaissance Protection Program

71

6

Email dated 11/30/14 from Chris Taylor to Johnny Green, cc: Darin Lease re GIS
Shipment details

7

(GUARD 00001975)

5

8

72

9

Email chain dated 11/30/14 from Chris Taylor to Darin Lease, cc: Johnny Green re
GIS Shipment details and incomplete data
(GUARD 00003463-3464)

10
73

Email dated 04/07/15 from Chris Taylor to Darin Lease, Louis Romestant, cc:
Johnny Green re GIS accounts (GIS 00008362)

74

GIS Sales Performance and Market Share Analysis dated 02/09/15 (GUARD
00001796-1808)

78

Letter dated 04/19/2007 to Greg Webb from GPP Northeast re intent to transfer
rights to Frank Gibson

15

79

Assignment of Contract dated 03/17/2010 by Greg Webb

16

80

Memo dated 03/26/12 from Christopher Schall to [e-mail], Greg
Webb, Tim Vaughan, Greg Hadfield, cc: Chris Nolan, Frank Gibson re April
Distributor Meeting (GIS 000022-023)

81

Email dated 08/30/13 from Charles Gibson to Johnny Green, cc: Chris Nolan
forwarding attached Sales Quota Action Plan (GUARD 00000327; 503-505 and
GUARD 00001262; 1438-1440)

82

Email dated 08/22/13 from Kara Copeland to Johnny Green, cc: Debbie and Frank
Gibson re Quota Notices (GUARD 00000510-511; 328, 502, 514 and GUARD
00001445-1446; 1263, 1437, 1449)

83

Email dated 09/27/13 to Johnny Green from Charles Gibson, cc: Todd Edwards re
Quota Letter 2 w/attached letter (GUARD 00000994-998)

84

Letter from Frank Gibson to R. Holman, J. Green re GIS Terminations (GUARD
00000333; 1268)

85

Email dated 12/02/13 from Frank Gibson to Johnny Green, cc: Debbie Gibson,
Chris Nolan re response to terminations (GUARD 00007482-7484)

11
12
13
14

17
18
19
20
21
22
23
24
25
26
27
28

39

Description

1
86

Email chain dated 01/26/11 from Christopher Schall to Vincent Scaglione, cc:
Debbie Gibson re mattress pads (GIS_001119-1120)

87

4

Email chain dated 02/05/13 from Chris Nolan to Frank and Debbie Gibson re
Guardian response

5

(GIS_000432)

2
3

6

88

7

Email dated 10/08/13 from Johnny Green to Kara Copeland, cc: Chris Nolan re
Bobs
(GUARD 00006925-6926)

8
89
9
10
11

(GIS 000407-408)
90

Letter dated 03/21/12 from GIS to Damien Narayan re SC Warranty Replacement
/Exchange

96

Spreadsheet re Distribution Sales by Territory FY14

12
13

(GUARD 00009208.xlsx)

14
15

97

Spreadsheet re Distribution
(GUARD 00009236.xlsx)

16
17

Email dated 02/05/13 from Chris Nolan to Frank and Debbie Gibson re bullet
point – Ronnie Holman

98

Spreadsheet re Working
(GUARD 00009218.xlsx)

18
99

Defendant RPM Wood Finishes Group, Inc.’s Response to Plaintiff G.P.P., Inc.’s
Interrogatories, Set One, Numbers 8, 16, 17 & 18

20

101

Amended Notice of Deposition of Guardian Protection Products, Inc.

21

102

Amended Notice of Deposition of RPM Wood Finishes Group, Inc.

22

103

Information re RPM Wood Finishes Group

23

104

Spreadsheet re Guardian; marked “Highly Confidential – Attorney Eyes Only”

19

24
25

(Guardian062-089)

26

Spreadsheet re RPM – Entity: Guardian Protection Prod Inc – East Div
(US222.US22211); marked “Highly Confidential – Attorneys’ Eyes Only

27

(Guardian060-061)

105

28
40

Description

1
2

106

3
4

Spreadsheet re RPM – Entity: RPM Wood Finishes Group, Inc. (USA.US307);
marked “Highly Confidential – Attorneys’ Eyes Only
(Guardian058-059)

107

E-mail chain, top e-mail 03/06/2015, Christ Taylor to Louis Romestant (GUARD
00010309-313)

108

Renaissance Partners Operational Narrative September 18, 2015 (GUARD
00010919)

109
8

E-mail chain, top e-mail 02/27/2015, Chris Taylor to Frank Amendola and Darin
Lease

9

(GUARD 00010314-316)

5
6
7

10

110

E-mail chain, top e-mail 10/02/2014, Chris Taylor to [e-mail],
with 10/1/2014 Letter attachment Christopher Taylor to Ted Gular and David
Breglar (GUARD 00009455-458)

111

13

E-mail dated 09/29/2014 Chris Taylor to Johnny Green with attachment
Renaissance Program Outline 2014 letter dated 09/29/2014

14

(GUARD 00009474-476)

11
12

15

112

E-mail dated 07/27/2015 from Rick Wright to Christ Taylor (GUARD 00010614)

16

113

Defendant's Expert Witness Disclosure

17

114

Plaintiff's Amended Notice of Deposition of Defendants' Expert Karl J. Schulze

18

115

G.P.P., Inc. d/b/a Guardian Innovative Solutions v. Guardian Protection Products,
Inc. Index to Documents in SHL Binders

116

20

Invoice #14555 dated 07/13/16 submitted to Calvin E. Davis from Schulze Hayne
Loevenguth & Co.

21

(7-pages)

19

22

117

Supplemental and Rebuttal Report of Karl J. Schulze

23

118

Report of Karl J. Schulze, CPA, CVA, CFE, CFF (Regarding Claims Related to
Renaissance)

119

Karl J. Schulze, CPA, CVA, CFE, CFF document re Testimony, Publishing and
Speaking History

26

120

Invoice 2805688; marked "CONFIDENTIAL" (GIS_001950)

27

121

Plaintiff's Expert Witness Disclosure

24
25

28
41

Description

1

3

122

Transcript of the Videotaped Deposition of Christopher Patrick Taylor, taken May
25, 2016

123

Transcript of the Videotaped Deposition of Johnny Wayne Green, Junior, taken
April 21, 2016

124

Guardian Protection Products FY2016
"CONFIDENTIAL" (GUARD 00002643-2647)

125

2

Document titled “Bob's Sales” marked "CONFIDENTIAL SUBJECT TO
PROTECTIVE ORDER" (GUARD 00009205-9206)

126

SHL Binder 1 provided by Karl J. Schulze

4
5
6
7
8

Marketing/Sales; marked

9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26

Q.

DISCOVERY DOCUMENTS
GIS states that it included all discovery documents it intends to use in its case-in-chief in

GIS’s Exhibit List.

Defendants state that they anticipate offering GIS’s answers to Special

Interrogatories 1 through 17. The parties intend to rely on deposition testimony of all listed
witnesses if those witnesses are offered for live testimony. The parties have requested to reserve
the right to offer the entirety of the deposition testimony of individuals who were deposed in this
litigation in the event that the other party does not call them for live testimony.
By no later than Wednesday, March 15, 2017, the parties shall file and serve a final list
of discovery documents that they intend to use at trial. Only those discovery documents listed in
this Pretrial Order may appear on the final discovery document list.

Further, no discovery

document, other than those listed in the final exhibit list, may be admitted at trial for any purpose
including for rebuttal unless the parties stipulate or upon a showing that this order should be
modified to prevent “manifest injustice.” Fed. R. Civ. P. 16(e).
Discovery documents (or relevant portions thereof) may be either separately marked and
indexed as a trial exhibit (as part of the exhibit marking process described above) or, if admissible,
read directly into evidence. By no later than Thursday, March 16, 2017, the parties shall
submit to the Court, through the Clerk’s Office, all pre-marked discovery documents.

27
28
42

1 R.

DUTIES OF COUNSEL REGARDING EVIDENCE

2

1.

3

During the course of trial, the parties’ counsel shall meet with the Court each morning and

General Evidentiary Matters

4 advise the Court as to which items of evidence will be used that day and which have not already
5 been admitted into evidence. The Court will rule on any objections, to the extent possible, prior to
6 the commencement of trial each day out of the presence of the jury. If such ruling depends on the
7 receipt of testimony or other evidence, the Court will rule as appropriate upon receipt of such
8 testimony or evidence. If evidentiary problems are anticipated, the parties’ counsel are required to
9 notify the Court immediately that a hearing outside the jury’s presence will be required. During
10 the time set for conducting the trial before the jury, the Court will not hear argument outside the
11 jury’s presence on such matters.
12

2.

13

During the trial, the parties’ counsel shall provide to the Court and the other counsel,

Witnesses

14 no less than one court day before a witness is called, with the name of the witness to be
15 called. If evidentiary problems are anticipated, the parties’ counsel are required to notify the
16 Court immediately that a hearing will be required.
17

3.

18

The Court respects the jury’s time and expects issues that must be presented outside the

Duty of Parties’ Counsel

19 jury’s presence to be raised such that the jury’s service is not unnecessarily protracted. To the
20 extent possible, the parties shall raise issues that must be presented to the Court outside of the
21 jury’s presence (1) in the morning before the jury sits, (2) during breaks, (3) in the afternoon after
22 the jury is excused, or (4) during any other appropriate time that does not inconvenience the jury.
23 For example, if evidentiary problems can be anticipated, the parties should raise the issue with the
24 Court before the jury sits so that there is no delay associated with specially excusing the jury.
25 Issues raised for the first time while the jury is sitting when the issue could have been raised
26 earlier will be looked upon with disfavor and counsel may be sanctioned for any fees, costs or
27 other expenses caused by their failure to raise the issue at a more convenient time.
28
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1

4.

2

The party’s counsel who introduces evidence at trial shall retrieve the original exhibits

Post-Trial Exhibit Retention

3 from the Courtroom Deputy following the verdict in the case. The parties’ counsel shall retain
4 possession of and keep safe all exhibits until final judgment and all appeals are exhausted.
5 S.

MOTIONS IN LIMINE

6

The Court ORDERS the parties’ counsel to meet and confer on anticipated motions in

7 limine and to distill evidentiary issues. The Court further ORDERS the parties to file motions in
8 limine as to only important matters in that most evidentiary issues can be resolved easily with a
9 conference among the Court and counsel. If, after conferring, any party chooses to file motions in
10 limine, the party shall file and serve its motions in limine by no later than Thursday, March 2,
11 2017. Oppositions to motions in limine shall be filed and served by no later than Wednesday,
12 March 8, 2017. The Court will conduct a hearing regarding pending motions in limine on
13 Monday, March 13, 2017, at 3:00 p.m. in Courtroom 7.

Telephonic appearances are

14 approved for the hearing regarding motions in limine; counsel appearing telephonically shall
15 confer to place one conference call to the Court at the time and date for the hearing.
16 T.

TRIAL PREPARATION AND SUBMISSIONS

17

1.

18

By no later than Wednesday, March 15, 2017, the parties may file and serve optional

Trial Briefs

19 trial briefs pursuant to Local Rule 285.
20

2.

21

By no later than Friday, March 3, 2017, the parties shall serve a proposed neutral

Neutral Statement of the Case

22 statement of the case on the opposing party. By no later than Friday, March 10, 2017, the
23 parties shall meet and confer regarding a joint neutral statement of the case. The parties shall
24 jointly file a neutral and brief statement of the case, which is suitable for reading to the jury, by no
25 later than Thursday, March 16, 2017.
26

3.

27

The parties shall file and serve any proposed jury voir dire by no later than Wednesday,

Proposed Voir Dire

28 March 15, 2017.
44

1

4.

2

The parties shall serve their proposed jury instructions on one another by no later than

Proposed Jury Instructions

3 Friday, March 3, 2017. The parties shall conduct a conference to address their proposed jury
4 instructions by no later than Friday, March 10, 2017. At the conference, the parties SHALL
5 reach an agreement on the jury instructions for use at trial. The parties shall file and serve all
6 agreed-upon jury instructions, and identify them as such, by no later than Thursday, March 16,
7 2017.
8

For those jury instructions on which the parties cannot agree, by no later than Thursday,

9 March 16, 2017, the parties may file and serve no more than ten total proposed jury instructions
10 and identify them as instructions upon which the parties could not agree. Without prior order,
11 the Court will not consider additional proposed jury instructions past the first ten.
12

All jury instructions shall indicate the party submitting the instruction (i.e., joint/agreed-on,

13 GIS’s, Guardian’s, or Defendants’), the number of proposed instruction in sequence, a brief title
14 for the instruction describing the subject matter, the text of the instruction, and the legal authority
15 supporting the instruction.
16

Ninth Circuit Model Jury Instructions SHALL be used where the subject of the instruction

17 is covered by a model instruction. Similarly, CACI or BAJI instructions SHALL be used where
18 the subject of the instruction is covered by CACI or BAJI. All instructions shall be short,
19 concise, understandable, neutral, and accurate statements of the law. Argumentative or
20 formula instructions will not be given and must not be submitted. Quotations from legal
21 authorities without reference to the issues at hand are unacceptable.
22

The parties shall, by italics or underlining, designate any modifications of instructions

23 from statutory or case authority, or any pattern instruction, such as the Ninth Circuit Model Jury
24 Instructions, CACI, BAJI, or any other source of pattern instructions, and must specifically state
25 the modification made to the original form instruction and the legal authority supporting the
26 modification.
27

By no later than Friday, March 17, 2017, the parties may file and serve any written

28 objections to disputed jury instructions proposed by another party. All objections shall be in
45

1 writing, set forth the proposed instruction, and shall include a citation to legal authority to explain
2 the grounds for the objection and why the instruction is not proper.

A concise argument

3 concerning the instruction may be included. Where applicable, the objecting party shall submit an
4 alternative proposed instruction covering the subject or issue of law.
5

5.

6

The parties shall serve their proposed verdict form on one another by no later than

Proposed Verdict Form

7 Friday, March 3, 2017. The parties shall conduct a conference to address their proposed verdict
8 form by no later than Friday, March 10, 2017. At the conference, the parties SHALL reach
9 agreement on the verdict form for use at trial. The parties shall file and serve the agreed-upon
10 verdict form, and identify it as such, by no later than Thursday, March 16, 2017. If a party
11 seeks additions to the agreed-upon verdict form, the party may file and serve, by no later than
12 Friday, March 17, 2017, a proposed verdict form which includes the agreed-upon portions and
13 additions which are clearly indicated on the party’s proposed verdict form. The Court will strike
14 and will not accept separately proposed verdict forms upon which the parties do not agree.
15

6.

16

All proposed jury instructions and verdict forms shall be e-mailed as a Word document

Other Matters

17 attachment to [e-mail] by no later than Thursday, March 16, 2017. Jury
18 instructions and verdict forms will not be given or used unless they are e-mailed to the court. The
19 Court will not accept a mere list of numbers of form instructions from the Ninth Circuit Model
20 Jury Instructions, CACI, BAJI, or other instruction forms. The proposed jury instructions must be
21 in the form and sequence which the parties desire to be given to the jury. All blanks to form
22 instructions must be completed. Irrelevant or unnecessary portions of form instructions must be
23 omitted.
24 U.

COURTROOM ACCESS

25

To the extent either party has video or DVD evidence they wish to present, the only

26 method of displaying such evidence will be through the use of the parties’ laptop(s) which will be
27 projected to the courtroom monitors. The parties’ laptop(s) will have to serve as the device that
28
46

1 plays these videos or DVDs―our courtroom equipment no longer provides any technology to play
2 such evidence.
3

The parties should contact Courtroom Deputy Alice Timken at 559-499-5975 by no later

4 than Monday, March 13, 2017, to coordinate access to the courtroom and training with IT on
5 equipment.
6 V.

SUMMARY OF PRETRIAL DEADLINES AND HEARINGS

7
8

Deadline
February 8, 2017

9
10 February 15, 2017
11
12 February 16, 2017

Event
 Defendants may file their opposition to GIS’s Motion to Reconsider,
(Doc. 147).
 Hearing on the parties’ motions to reconsider, (Docs. 143 & 147),
unless the Court vacates the hearing.
 Settlement Conference before the Honorable Erica P. Grosjean at
1:00 p.m. in Courtroom 10.

13
14

March 2, 2017

15 March 3, 2017
16
17

 File motions in limine.





Exchange proposed exhibits;
Serve proposed neutral statement of the case on opposing party;
Serve proposed jury instructions on opposing party; and
Serve proposed verdict forms on opposing party.

18 March 8, 2017

 File oppositions to motions in limine.

19 March 10, 2017






20
21
22 March 13, 2017
23
24

Exhibit conference;
Meet and confer to draft joint neutral statement of the case;
Meet and confer regarding jury instructions; and
Meet and confer regarding verdict form.

 Contact Courtroom Deputy to coordinate access to courtroom and
IT equipment; and
 Hearing on motions in limine at 3:00 p.m. in Courtroom 7 (SKO).

27







28 March 16, 2017

 Submit all pre-marked trial exhibits to the Clerk’s Office;

March 15, 2017
25
26

Serve and file final witness lists;
Serve and file final exhibit lists;
Serve and file final list of discovery documents;
File optional trial brief; and
File any proposed voir dire.

47

 Submit all pre-marked discovery documents to the Clerk’s Office;
 Submit all deposition transcripts reasonably anticipated for use for
any purpose at trial to the Clerk’s Office;
 Serve opening statement materials (e.g., demonstrative exhibits) on
opposing parties and provide a copy to the Court;
 File and email agreed-upon jury instructions;
 File and email joint verdict form;
 File and email joint neutral statement of the case; and
 File up to 10 proposed jury instructions on which the parties could
not agree (no more than 10 total will be considered).

1
2
3
4
5
6
7

March 17, 2017

8
9 March 21, 2017, at
8:30 a.m.
10

 File any objections to separately proposed jury instructions; and
 File any additions to the agreed-upon verdict form.
 Trial begins.

11 W.

STRICT COMPLIANCE

12

Strict compliance with this Pretrial Order and its requirements is mandatory. The Court

13 will strictly enforce the requirements of this Pretrial Order, especially those portions pertaining to
14 jury instructions and a verdict form. Counsel and the parties are subject to sanctions for failure to
15 fully comply with this order and its requirements. The Court will modify this order “only to
16 prevent manifest injustice.” Fed. R. Civ. P. 16(e).
17 d70o4d
18 IT IS SO ORDERED.
19
20

Dated:

February 3, 2017

/s/

Sheila K. Oberto

UNITED STATES MAGISTRATE JUDGE

21
22
23
24
25
26
27
28
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.