Brilliant Alternatives, Inc. et al v. Feed Management Systems, Inc. et al
Filing
117
ORDER denying 74 Plaintiffs' Motion to Compel Non-Party Cargill and Plaintiffs' Motion for Oral Argument 78 . Plaintiff's Motion for Sanctions against Non-Party Cargill, Reconsideration of the Protective Order, and Extension of Time to Complete Discovery 76 and Plaintiffs' Motion to Compel the Defendants to Produce Their Privilege Logs 98 are GRANTED, in part and DENIED in part. Plaintiffs' Rule 56(d) Motion 108 is GRANTED rendering Plaintiff's Supplemental Motion to Extend Time for Discovery 93 MOOT. Discovery is EXTENDED for 60 days from the date of this order. As a result, Defendants' First Motion for Summary Judgment 104 is DENIED, without prejudice, with right to refile. Signed by Judge Richard W. Story on 11/15/11. (cem)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
BRILLIANT ALTERNATIVES, INC., :
et al.,
:
:
Plaintiffs,
:
:
v.
:
:
FEED MANAGEMENT SYSTEMS, :
INC., et al.
:
:
Defendants.
:
CIVIL ACTION NO.
1:09-CV-2348-RWS
ORDER
This case comes before the Court on: Plaintiffs’ Motion to Compel NonParty Cargill [74]; Plaintiffs’ Motion for Sanctions against Non-Party Cargill,
Reconsideration of the Protective Order, and Extension of Time to Complete
Discovery [76]; Plaintiffs’ Motion for Oral Argument on the Preceding Motions
[78]; Plaintiffs’ Supplemental Motion to Extend Time for Discovery [93];
Plaintiffs’ Motion to Compel the Defendants to Produce Their Privilege Logs
[98]; Defendants’ First Motion for Summary Judgement [104]; and Plaintiffs’
Rule 56(d) Motion [108]. After a review of the record, the Court enters the
following order.
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I. Preliminary Matter
As an initial matter, the Court finds that the briefing is sufficient on these
matters, and an oral hearing is not warranted. Plaintiffs’ Motion for Oral
Argument [78] is DENIED.
II. Motion to Compel Non-Party Cargill
Plaintiffs move to compel Non-Party Cargill to produce a more detailed
privilege log and due-diligence documents which they feel are relevant to their
document requests. First, Plaintiffs argue that Cargill’s privilege log is not
detailed enough to ascertain whether documents are subject to privilege. On
April 1, 2011, following a meet and confer, the Plaintiffs requested that Cargill
produce a privilege log which included: “the date the communication was sent;
from whom and to whom the communication was sent; the form of the
communication (i.e. email, letter, etc.); the subject(s) or topics(s) addressed in
the communication; and the specific privilege claimed.” Ex. F, Dkt. No. [79-2]
at 20. After some initial back and forth regarding whether Cargill would
produce just the title of the document or the subject, Cargill agreed to produce
all of the information the Plaintiffs requested in its log. Ex. H, Dkt. No. [79-2]
at 29. Plaintiffs then wrote Cargill that even despite the amendment, “it [was]
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still not apparent to [them] whether all of the documents . . . are protected by the
attorney-client privilege.” Ex. I, Dkt. No. [79-2] at 39. Plaintiffs now ask the
Court for “greater specificity” without saying what that specificity is requested
or what specific documents they wish to learn more about. See Dkt. No. [75] at
5.
The Court does not find that an additional amendment is warranted.
Cargill, a non-party, has produced all the information in its privilege log that the
Plaintiffs requested. And it is worth noting that the parties did not have a formal
meet and confer after the Plaintiffs obtained what they initially wanted out of
Cargill. This is not a situation in which Cargill had stonewalled the Plaintiffs;
Cargill was actively amending its privilege log and working with the Plaintiffs.
Asking for “greater specificity” without stating what information is needed
about what documents is not sufficient.
The Court also does not find that Plaintiffs are entitled to Cargill’s due
diligence documents originating from its purchase of the remaining 75% of
Defendant FMS, two years after the conduct which underlies this suit. This
information is irrelevant. Plaintiffs argue that they need this information to
glean what financial incentives the Defendants had to “misappropriate the
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[Plaintiffs’] distribution network” in an effort to make FMS a more attractive
purchase to Cargill. However, this merger occurred two years after the conduct
which is at issue in this suit and is simply too far removed as these financial
conditions were not in existence at the time FMS allegedly tortiously interfered
with Plaintiffs’ business; the link is too attenuated. Plaintiffs’ Motion to
Compel Cargill [74] is DENIED.
III. Motion to Compel Defendants
Plaintiffs also move the Defendants to produce: 1) a privilege log; 2) any
documents which Defendant Reynertson has in his “possession, custody, or
control”; and, 3) a supplement of all remaining responsive documents. First,
following this motion, the Defendants produced a privilege log. That request is
now MOOT.
Second, the Court finds that Defendant Reynertson should produce all
documents which are in his possession, custody, or control. But as he is sued in
his individual capacity, those documents are limited to those that are in his
personal possession. Moreover, he is not required to produce duplicates of
documents already produced by FMS. Last, all parties have a continuing duty
to supplement discovery. If the Defendants have any remaining
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documents–which the Plaintiffs have not already received in this case–they are
required to produce them. See FED. R. CIV. P. 26(e) (stating that parties must
supplement their disclosures when they learn the initial disclosure was either
incomplete or incorrect). However, if documents have been deleted due to a
legitimate document-retention plan, those documents will not be compelled as
they do not exist. Therefore, Plaintiffs’ Motion to Compel the Defendants [98]
is GRANTED, in part and DENIED, in part.
IV. Plaintiffs’ Motion for Sanctions against Cargill, Supplemental Motion
to Extend Discovery, Rule 56(d) Motion, and Defendants’ Motion for
Summary Judgment
As an initial matter, Plaintiffs request the Court to reconsider the
protective order in this case. After due consideration, that request is DENIED.
Plaintiffs first move to sanction Non-Party Cargill for over-classifying
documents as “attorney’s eyes only” under the protective order. Cargill admits
that when it classified documents, if the initial document was attorney’s eyes
only, that document and any attachments–regardless of whether the attachments
also were confidential–were marked attorney’s eyes only. The Court finds that
this process was improper, and Cargill clearly over-classified documents.
However, this Court does not find that sanctions are warranted because
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Plaintiffs failed to follow the protective order’s procedures for challenging
over-classification before turning to this Court.
Under paragraph 12 of the protective order, Plaintiffs are required to first
ask Cargill to change its classification for the individual documents. Only after
Cargill refuses to change the documents is the Court to get involved. As a
result, and for efficiency’s sake, this Court will allow the Plaintiffs to determine
which documents they wish to be reclassified as the Plaintiffs are in the best
position to identify which documents they need. Plaintiffs can then contact
Cargill to reclassify the documents and can meet and confer regarding the same.
Therefore, Plaintiffs’ Motion for Sanctions [76] is GRANTED, in part and
DENIED, in part.
The Court GRANTS Plaintiffs’ Rule 56(d) motion [108]. Under Rule
56(d), “If a nonmovant shows by affidavit or declaration that, for specified
reasons, it cannot present facts essential to justify its opposition, the court may:
(1) defer considering the motion or deny it; (2) allow time to . . . take discovery;
or (3) issue any other appropriate order.” Due to Cargill’s over-classification of
documents, the Plaintiffs were unprepared to take depositions in this case as
they could not have reviewed what may be salient, non-confidential documents
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with Plaintiff Brill. Therefore, Plaintiffs’ Supplemental Motion for an extension
of discovery [93] is MOOT, as under the Rule 56(d), motion discovery will be
extended for sixty (60) days from the date of this order.
Because the Court has granted the Rule 56(d) motion, Plaintiff is not
required to respond to Defendants’ Motion for Summary Judgment [104] until
the additional discovery period concludes. Also, because Defendants may wish
to supplement their motion based on the additional discovery, Defendants’
Motion for Summary Judgment [104], which is presently pending, is DENIED,
without prejudice, with right to refile.
As a concluding matter, the Court notes that the Plaintiffs have filed five
discovery-based motions in the past six months and have not been appropriately
using the meet-and-confer process. The Court reminds the parties of their
obligation to meet and confer before ever filing discovery motions. A meet and
confer is mandatory.
V. Summary
Plaintiffs’ Motion to Compel Non-Party Cargill [74] and Plaintiffs’
Motion for Oral Argument [78] are DENIED. Plaintiff’s Motion for Sanctions
against Non-Party Cargill, Reconsideration of the Protective Order, and
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Extension of Time to Complete Discovery [76] and Plaintiffs’ Motion to
Compel the Defendants to Produce Their Privilege Logs [98] are GRANTED,
in part and DENIED, in part. Plaintiffs’ Rule 56(d) Motion [108] is
GRANTED rendering Plaintiff’s Supplemental Motion to Extend Time for
Discovery [93] MOOT. Discovery is EXTENDED for 60 days from the date of
this order. As a result, Defendants’ First Motion for Summary Judgement [104]
is DENIED, without prejudice, with right to refile.
SO ORDERED this 15th
day of November, 2011.
________________________________
RICHARD W. STORY
United States District Judge
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