Electrolux Home Prod v. Whitesell Corp
Filing
1013
ORDER approving [1012-1] Seventh Revised Joint Discovery Plan (attached hereto). Signed by Chief Judge J. Randal Hall on 05/30/2018. (jlh)
IN THE UNITED
STATES DISTRICT
SOUTHERN DISTRICT
OF
COURT
FOR THE
GEORGIA
AUGUSTA DIVISION
WHITESELL CORPORATION,
*
5
Plaintiff,
*
5
V.
*
CV 103-050
5
ELECTROLUX HOME PRODUCTS,
*
INC., HUSQVARNA, A.B., and
*
HUSQVARNA OUTDOOR PRODUCTS,
INC.,
*
*
5
Defendants.
*
ORDER
On May 23, 2018, this Court granted Defendants' request
to reschedule certain depositions in a telephone conference.
Based upon this change to the schedule, the parties have
submitted a proposed Seventh Revised Joint Discovery Plan.
The parties represent that they have agreed to all proposed
terms.
Accordingly, IT IS ORDERED that the Seventh Revised
Joint Discovery Plan, attached hereto, is APPROVED.
ORDER ENTERED at Augusta, Georgia, this
of May,
2018 .
UNITED/STATES DISTRICT COURT
fERN DISTRICT OF GEORGIA
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF GEORGIA
AUGUSTA DIVISION
WHITESELL CORPORATION,
Plaintiff,
vs.
ELECTROLUX HOME PRODUCTS,INC.,
CASE NO. l:03-cv-00050
HUSQVARNA AB and HUSQVARNA
OUTDOOR PRODUCTS INC.,
Defendants.
PARTIES* SEVENTH REVISED JOINT DISCOVERY PLAN
Plaintiff and Defendants hereby jointly agree to the following Seventh Revised Joint
Discovery Plan. In agreeing to this Revised Joint Discovery Plan, the Parties do not waive any
position they have asserted or may assert concerning any issue presently or formerly in this
litigation.
I.
Introduction
A.
Discovery will be conducted in four stages.
B.
Discovery will be limited to parts identified in the remainder of this Paragraph
(I)(B), including its sub-paragraphs, subject to all reservations of discovery rights set forth within
this Joint Discovery Plan. Plaintiff recognizes the effect that the Court's Summary Judgment
decision of October 14, 2008, its decision of February 17, 2010 not to reconsider the foregoing
decision, and its Order dated October 13,2010 have on the scope of Plaintiffs claims in this case
until such time, if ever, as these decisions are reversed or modified on appeal. Without prejudice
to Plaintiffs right to seek appellate review ofthese decisions and others made by the District Court,
Plaintiff hereby limits the scope of parts Plaintiff contends Defendants were obligated to purchase
exclusively from Plaintiffto the following: (i)the Brunner Parts as such are identified by the Court
in its October 14, 2008 Order and the Matrix Parts, (ii) the Other Included Parts, (iii) the Non-
Transition Parts In Suit, and (iv) the Padilla Parts, all as defined and more particularly described
below in Sub-Paragraphs (I)(B)(I-5).
1.
The parts purchased by the Defendants from Brunner Manufacturing (the
"Brunner Parts");
2.
The parts purchased by the Defendants from Matrix (formerly known as
SMC)
(the "Matrix Parts");
3.
To the extent that they were supplied by Plaintiffto Defendants through the
Parties' course of performance(as described in the Court's previous Orders)the parts from
Martin Industrial Supply, Northern Wire, QSN, Bamal Fastener, Brico, Tesa Tape, and
Henkel (collectively, the "Other Included Parts");
4.
The Non-Transition Parts In Suit previously identified in the Court's Orders
dated March 25, 2010, which have also been the subject of previous referrals to a Special
Master but only those which have been purchased from the suppliers listed in Paragraph
(I)(B)(3) above (the "Non-Transition Parts In Suit"); and
5.
The parts, set forth in the Alberto Padilla letter dated December 12, 2005
(or as amended after such date) which the Court determines to be in any ofthe enforceable
part categories described in its October 14, 2008 Order (the "Padilla Parts").
6.
The parts described in Sub-Paragraphs (I)(B)(l-5) above are sometimes
collectively referred to as the "Parts In Suit."
C.
The Parties recognize that Party and non-Party depositions will be necessary after
completion of the Second Stage of discovery. The Parties reserve their rights to move the Court
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for permission to take depositions during the First Stage of discovery if they determine it to be
necessary.
D.
Plaintiff believes that the final duration term date with respect to any of the parts
described in Paragraph (I)(B)(l-5) above is or may be after November 1, 2008 and, accordingly,
the Parties reserve the right, in the Second Stage of discovery, to seek discovery as to information
for additional time periods other than those provided in the First Stage of discovery described
below.
II.
First Stage(To February 1.2014U
A.
The First Stage of discovery will include a mutually-agreeable process for
attempting to identify all of the Parts In Suit. To that end, the Parties agree to attempt to utilize,
to the extent practicable, the procedure specified below, in order to identify those parts:
1.
Within 30 days ofthe entry ofthe Court's discovery order. Defendants will
endeavor to extract and produce, from any necessary data in Defendants' possession or
control, information on all receipts ofpurchases for any purpose ofall ofthe Other Included
Parts, as described in Item (II)(A)(10) below,from Plaintiff for the period January I, 2001
through November 1, 2008.
2.
Within 30 days of the entry of the Court's discovery order. Plaintiff will
endeavor to extract and produce, from any necessary data in Plaintiffs' possession or
control, information on all shipments of the Other Included Parts, as described in Item
(II)(A)(IO) below,to Defendants for the period January 1,2001 through November 1,2008.
'February 1, 2014 was the original estimate date for the completion ofthe First Stage. Whitesell maintains that
pursuant to the Court's Order dated December 29,2014(Dkt. 612),the JDP contemplates that Stage One should be
completed prior to Stage Two,and states that the Second Stage did not begin until the information required to be
provided in the First Stage was provided. The parties certified on January 5,2015 that all purchase and usage data
had been exchanged.
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3.
With respect to the steps described in Items (II)(A)(1) and (2), above, the
Parties recognize that their respective record-keeping systems may require relaxation of
the 30-day deadline for production of information, but the Parties commit to use their best
efforts to produce such information as expeditiously as reasonably possible. It is
understood and agreed that the Parties will coordinate simultaneous production ofthis data.
4.
As discussed in Defendants' January 22,2013 brief submitted to the Court,
the Defendants recognize that their production will be over inclusive, identifying parts that
do not fall within the "course of performance" category as defined by the Court's Orders.
Additionally, Defendants believe that the produced data will need to be adjusted to exclude
captured purchases of Non-Transition Parts In Suit which will be dealt with separately as
discussed below. Within 30 days after completion of production of the data described in
both Items (11)(A)(1) and (2)above, the Plaintiff will submit to Defendants its list of those
Other Included Parts for which it contends the produced data demonstrates an arguable
"course of performance" as defined in the Court's prior Orders ("PlaintifTs Course of
Performance List").
5.
Within 15 days after submission of Plaintiffs list described in Item
(11)(A)(4) above, the Parties will meet and confer in an attempt to resolve any objections
Defendants may have to the Plaintiffs course of performance list. In the absence of
resolution of any such disputes. Defendants reserve their right to further address these
matters with the Court. Defendants reserve the right to assert that any non-Whitesell
purchases it made during the contract period of parts on the Plaintiffs Course of
Performance List were Justified and do not support Plaintiffs claims in this matter.
Defendants further reserve the right to assert that any purchases of parts from Whitesell
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failed to demonstrate a "course of performance" and are not waiving this right by
production ofthe data previously described.
6.
Within 30 days following the Parties' meet and confer described in
Item (II)(A)(5) above, Defendants will extract and produce, from any necessary data in
Defendants possession or control, information on all receipts of purchases for any purpose
of all those parts on Plaintiffs course of performance list which have not been objected to
by the Defendants and/or resolved by the Court from the Other Included Parts suppliers
listed in Paragraph (I)(B)(3)above for the period 01/01/04 through 11/01/08. Furthermore,
as to parts to which Defendants object, Defendants will produce this data within 30 days
of the Court's ruling that is either adverse to Defendants' objection or that requires
Defendants to produce such information to adequately inform the Court prior to any such
adverse determination; provided, however,that Plaintiff reserves the right to assert its right
to have a "course of performance" dispute resolved by a jury during trial.
7.
By no later than the deadline in Item (11)(A)(6), Husqvama will provide
purchase history receipt data for all parts purchased for any purpose from Brunner Drilling
and Manufacturing Inc., Matrix,and SMC during the period 01/01/04 to 11/01/08. Plaintiff
reserves its right to seek this information for additional time periods and Defendants
reserve their right to oppose the production of any such information.
8.
All productions of the data described in Items (11)(A)(1),(2),(6), and (7)
above will identify the part by number and description and provide the month and year of
receipt, quantity, supplier name and location (naming facility) for which each purchase or
shipment was made. "Facility" or "facilities" shall include any and all manufacturing
locations, warehouses and the like (including any "virtual" factories or warehouses.
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meaning any electronic business database that catalogues parts that are not necessarily tied
to a specific physical location or transaction; provided, however, that the foregoing
definition will not require Defendants to again produce the purchase receipts data that the
Defendants will have produced). In addition,the Parties reserve the right to move the Court
during the Second Stage for permission to seek information (not disclosed during the First
Stage) disclosing the prices and engineering and tooling charges paid for the parts
described in this Item (II)(A)(IO) as well as other information and related documents for
all purchases of the Parts In Suit from or for any of Defendants' facilities, including, but
not limited to, whether Whitesell had the internal capability of manufacturing the parts,
whether Whitesell imported or domestically supplied the parts, and Whitesell's revenues
and expenses which were or would have been incurred in the supply ofthe parts.
Plaintiff reserves the right to object to the production of information concerning
whether any parts it sold to Defendants, or contends that it should have sold to either of
them, were or would have been imported or domestically supplied. Plaintiff reserves the
right to maintain that it should not be required to produce any information regarding its
revenues or expenses which were or would have been incurred in the supply of parts to
Defendants until a reasonable time after Defendants first produce all financial, production
or other information as Plaintiff believes is necessary to enable it to produce the
information concerning its revenues and expenses. Defendants reserve the right to oppose
all or any portion of the foregoing positions of Plaintiff, in the event that Plaintiff asserts
them.
Notwithstanding anything herein to the contrary, during this First Stage, Husqvarna
will endeavor to produce to the extent not produced in information described above all
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pricing, tooling and engineering tooling charges paid for all Brunner and Matrix parts
Husqvama purchased for any purpose from January 1, 2004-November 1, 2008. Plaintiff
reserves its right to seek this or other related information for additional time periods and
also for any other Parts In Suit; Defendants reserve their right to oppose the production of
such information.
9.
With regard to purchases described in Paragraphs (II)(A)(1) and (6-7)
above, the information will include the purchases of all such parts, including safety stock.
10.
Defendants will produce usage data for the Parts in Suit described in Sub-
Paragraphs(I)(B)for the period 1/1/04 through 11/1/08 no later than January 24,2014. All
productions of the usage data will identify the part by number and description and provide
the month and year of use, quantity, and location(naming facility) where the part was used.
The Second Stage of discovery will not commence until this data is produced. Plaintiff
reserves the right to seek additional information and documentation during later stages of
discovery concerning the items addressed in this paragraph.
11.
No later than January 24,2014,Plaintiff will produce for the period 01/01/04
to 11/01/08 all electronic records/data maintained by Plaintiffthat detail any and all product
costs for the Parts in Suit described in Section (1)(B) above, as well as, any other
management reports created and maintained by Plaintiff of the product costs for the parts
during the 01/01/04 to 11/01/08 period. Said data, to the extent possible, shall be sorted by
part number and include the date that such data is applicable and a description of the part.
Such product costs would include but not be limited to the following separate costs to the
extent applicable, and data on each ofthese separate costs will also be produced to the extent
they are maintained in Plaintiffs electronic records:
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a. The cost of parts purchased by Plaintiff including surcharges, tooling, freight
and duty, warehousing and handling, miscellaneous costs and allocations of
overhead; and
b. Costs incurred by Plaintiff to manufacture parts including steel and other
materials, manufacturing labor, processing costs, freight and duty, warehouse
and handling, miscellaneous costs and allocations of overhead costs.
Defendants reserve the right to seek additional information and documentation,
including, but not limited to, the data for time periods before January 1, 2004,
or after November 1, 2008, during later stages of discovery concerning the
items addressed in this paragraph.
B.
Ifat any time either Party is dissatisfied with the efficacy ofthe procedure described
in Items (II)(A)(1-13) above, the Parties agree to promptly meet and confer and use their best
efforts to attempt to address and resolve the issues creating dissatisfaction. Ifthe issues cannot be
resolved to the Parties' satisfaction, then either Party may file an appropriate motion with the Court
to seek relief. Defendants reserve the right to request the appointment and use of a special master
for functions appropriate under Fed. R. Civ. P. 53.
III.
Second Stage(To Mav 31.2017)
A.
During the Second Stage, the Parties may commence written discovery (including,
among other things. Requests for Production of Documents and Interrogatories) between the
Parties, as well as to Third Parties, relating to the purchases identified in the First Stage.
B.
Among other things, Defendants reserve the right to seek discovery during the
Second and later stages of discovery regarding, but not be limited to, data and information
concerning Whitesell's internal capability of manufacturing the relevant parts, whether Whitesell
imported or domestically supplied the parts and Whitesell's revenue and expenses which were or
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would have been incurred in the supply of the parts as well as other documentation and/or
information Defendants deem necessary to address Plaintiffs damages calculations. Plaintiff
reserves the right to object to the production of information concerning whether any parts it sold
to Defendants, or contends that it should have sold to either of them, were or would have been
imported or domestically supplied. Plaintiff reserves the right to maintain that it should not be
required to produce any information regarding its revenues or expenses which were or would have
been incurred in the supply of parts to Defendants until a reasonable time after Defendants first
produce all financial, production or other information as Plaintiff believes is necessary to enable
it to produce the information concerning its revenues and expenses. Defendants reserve the right
to oppose all or any portion ofthe foregoing positions of Plaintiff, in the event that Plaintiff asserts
them. Plaintiff also reserves the right to object to the production of any such information
Defendants deem necessary regarding Plaintiffs damages calculations. Defendants reserve the
right to assert that any parts determined to be within the scope of the Parts In Suit as determined
by the discovery process set forth herein are not parts subject to any agreement between the Parties.
C.
The Plaintiffreserves the right to seek discovery during the Second Stage regarding
parts identical to parts supplied by Plaintiff but for which Plaintiff contends that Defendants or
their suppliers assigned a part number different from the part number assigned to such part supplied
by Plaintiff.
D.
The Plaintiffreserves the right to seek discovery during the Second Stage regarding
(i) the matters identified in the Rule 56(d) requests submitted by Plaintiff in connection with
Defendants' two currently pending Motions for Partial Summary Judgment, (ii) the accounts
receivable claims asserted against the Defendants (including all excess and obsolete inventory).
and (iii) the Two Million Dollar($2,000,000.00) payment made by Whitesell to Electrolux Home
Products,Inc. in connection with their Strategic Partnership Agreement dated December 15,2000.
E.
The Parties acknowledge that for certain parts, including but not limited to the Non-
Transition Parts in Suit,the Padilla Parts,and the parts affected by the Court's June 24,2013 Order,
Plaintiff has preserved the right to request purchase and usage data for time periods before January
1, 2004, or after November 1, 2008. The Parties shall confer within 60 days ofthe completion of
Stage One, defined as the production of all purchase data, usage data, and product cost data,
described in Stage One, regarding the parts and time periods for which additional purchase and
usage data is sought. If after negotiating in good faith the Parties are unable to agree as to the
production of data for any parts and/or time periods, they will present the disputed issues to the
Court for resolution.
IV.
Third Stage(To Julv 13.2018)
A.
During the Third Stage, which is to commence on July 26, 2017, the Parties will
complete all fact discovery not completed in the first two Stages relating to the part purchases
identified in the First Stage. This may include any ofthe following:
1.
Additional document requests to Parties and subpoenas to non-Parties.
2.
Depositions of party and non-party fact witnesses. Each side shall be
limited to twelve (12) depositions during this stage absent further order from the Court.
Depositions of party and non-party fact witnesses shall commence no earlier than July 26,
2017.
3.
Other discovery devices, including Interrogatories and Requests for
Admission.
V.
Fourth Stage - Expert Discovery
Expert discovery will be completed as follows:
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A.
Plaintiff and Defendants shall serve affirmative expert disclosures in support of
their claims in accordance with Fed. R. Civ. P. 26(a)(2) by September 12,2018.
B.
Plaintiff and Defendants shall serve any rebuttal report(s) on or before November
27, 2018. Any rebuttal report shall be limited to responding to the affirmative opinions in the
initial expert disclosures.
D.
Plaintiff shall make its disclosed testifying expert(s) available for deposition on or
before January 11, 2019.
E.
Defendants shall make their disclosed testifying experts available for deposition on
or before February 11, 2019.
F.
Both parties retain their right to move this Court for a modification of any deadline
in this Joint Discovery Plan should additional discovery be ordered by the Court upon motion and
there arises a need to modify any deadline to allow for such discovery to be completed. With
respect to the damages discovery issues addressed by the Court's Order of January 10, 2017 and
the discussions occurring during the January 21, 2016 discovery hearing, a motion for such
discovery shall be filed or made no later than ten (10)days from the date of service of affirmative
expert reports.
VI.
Pre-Trial Dates
A.
The parties shall file any summary judgment motions on liability issues between
July 13, 2018 and August 13, 2018, or otherwise wait until February 11,2019 to March 25,2019.
B.
The parties shall file all Daubert motions and summaryjudgment motions based on
Daubert or damages issues between March 25, 2019 and May 20,2019.
C.
The parties request that the Court set the deadline for the filing of motions in limine.
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Dated: May 25, 2018.
SELENDY & GAY,PLLC
ALSTON & BIRD, LLP
/s/ Faith E. Gav
/s/ Kvle G.A. Wallace
Faith E. Gay (admitted pro hoc vice)
Lena Konanova (admitted pro hac vice)
Joy Odom (admitted pro hac vice)
Ronald J. Krock (admitted pro hac vice)
Michael P. Kenny (admitted pro hac vice)
Kyle G.A. Wallace
Elizabeth Helmer (admitted pro hac vice)
Amanda M. Waide (admitted pro hac vice)
Jamie S. George (admitted pro hac vice)
1290 Avenue of the Americas, 17th Floor
New York, NY 10104
(212)390-9001
One Atlantic Center
1201 West Peachtree Street
Atlanta, GA 30309-3424
-and-
ROUNTREE & LEITMAN LLC
(404)881-7000
Counselfor Defendant Electrolux Home
Products, Inc.
Hal J. Leitman
Building B Suite 100
KILPATRICK TOWNSEND & STOCKTON
LLP
2800 North Druid Hills Road
Atlanta, GA 30329
(404)584-1229
/s/ R. Perry Sentell. Ill
Counselfor Plaintiff Whitesell Corporation
R. Perry Sentell, III
Joseph H. Huff
Laurel Payne Landon
Enterprise Mill
1450 Greene Street, Suite 230(01)
Post Office Box 2043
Augusta, GA 30909
(706)724-2622
-andDLA PIPER LLP
James M. Brogan (admitted pro hac vice)
Matthew A. Goldberg (admitted pro hac vice)
Brian J. Boyle (admitted pro hac vice)
One Liberty Place
1650 Market Street, Suite 4900
Philadelphia, PA 19103
Telephone:(215)656-3300
Counselfor Defendants Husqvarna AB and
Husqvarna Outdoor Products, Inc.
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