BEYERS et al v. PEPPERIDGE FARM, INC.

Filing 392

ORDER granting 379 Plaintiffs' motion for leave to file an Affidavit of William Holden (Dkt. 379-1) as evidence to support the plaintiffs' separate motion for sanctions. Signed by Magistrate Judge Debra McVicker Lynch on 6/10/2011. (TMA)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
JENAY CRAIG,
DENNIS MCGUIRE, and
RANDY PATTERSON,
Plaintiffs,
v.
PEPPERIDGE FARM, INC.,
Defendant.

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Order on Plaintiffs’ Request for Leave to File Affidavit
This matter came before the court on the motion (Dkt. 379) by the plaintiffs to file an
Affidavit of William Holden (Dkt. 379-1) as evidence to support the plaintiffs’ separate motion
for sanctions against defendant Pepperidge Farm, Inc. Mr. Holden was formerly employed by
Pepperidge Farm and last worked for it in 2007. Pepperidge Farm opposes the plaintiffs’
motion to file Mr. Holden’s affidavit on the following grounds: (1) the affidavit is too late, (2)
the affidavit was obtained in violation of the Rules of Professional Conduct by the plaintiffs’
counsel, (3) the affidavit is not made on personal knowledge, and (4) the affidavit does not
support the plaintiffs’ request for sanctions. The court finds none of these arguments sufficiently
persuasive to exclude the affidavit from consideration on the parties’ briefing of the sanctions
motion. The court therefore GRANTS the motion.
First, the plaintiffs have offered good cause for the timing of their request to file Mr.
Holden’s affidavit. The sanctions motion asks the court to sanction Pepperidge Farm for
allegedly withholding information and misleading the plaintiffs regarding Pepperidge Farm’s
possession and knowledge of data reporting distributions of Pepperidge Farm’s products to CVS

and Walgreen stores within the plaintiffs’ territories. (See Dkt. 343). The plaintiffs contend that
statements by Pepperidge Farm in its March 4, 2011 response to the plaintiffs’ sanctions motion
about whether and when it possessed this store-specific data prompted the plaintiffs to attempt to
verify Pepperidge Farm’s statements. Although Pepperidge Farm told the plaintiffs in a January
21, 2011 letter (see Dkt. 384-1 at pp. 1-2) that Mr. Holden had been Pepperidge Farm’s account
manager for CVS—and thus presumably the plaintiffs should have located Mr. Holden at that
point—it was Pepperidge Farm’s use of affidavits to support its position regarding the data that
spurred the plaintiffs to locate and interview former Pepperidge Farm employees about the data.
The plaintiffs assert that they located Mr. Holden after receiving Pepperidge Farms’ March
response and that he then provided his affidavit to the plaintiffs on May 16, 2011. Although the
plaintiffs likely could have obtained the affidavit a little sooner, they did not unduly delay.
Moreover, the court has not yet ruled on the sanctions motion and will not refuse to consider Mr.
Holden’s affidavit solely based on the timing of its filing.
Second, Pepperidge Farm’s argument that the affidavit was obtained in violation of the
Rules of Professional Conduct--because the plaintiffs’ counsel contacted Mr. Holden without
Pepperidge Farm’s permission--is without merit.1 Pepperidge Farm has not demonstrated that
Mr. Holden had attorney-client privileged information at risk of disclosure in the course of Mr.
Horne’s communications with Mr. Holden. Mr. Holden’s supposed interest in “maintaining a
good relationship with Pepperidge Farm” is not one protected by the ethics rules governing a
lawyer’s contacts with witnesses, and is not an interest that should be at risk by a person’s
providing truthful information for use in a judicial proceeding. Finally, Indiana courts follow the

1

This argument also undermines Pepperidge Farm’s first argument that the plaintiffs
should have acted much earlier to submit Mr. Holden’s affidavit, because Pepperidge Farm
contends that the plaintiffs’ counsel should never have contacted Mr. Holden.
2

general rule permitting a litigant’s counsel to have ex parte communications with former
employees of an opposing corporate party. See, e.g., EEOC v. Dana Corp., 202 F. Supp. 2d 827
(N.D. Ind. 2002); P. T. Barnum’s Nightclub v. Duhamell, 766 N.E.2d 729, 737 (Ind. Ct. App.
2002). Although that general rule may not apply in certain circumstances, Pepperidge Farm has
not advanced any cognizable basis here that would lead the court to find the contact improper.
Third, the court does not read Mr. Holden’s affidavit as lacking a basis in his personal
knowledge (although its lack of detail may go to credibility). The court finds it implicit in Mr.
Holden’s description of his job responsibilities—as the director of emerging channels for
Pepperidge Farm in which he oversaw Pepperidge Farm’s establishing national accounts with
Walgreen Co. and CVS Pharmacy—that those responsibilities provided him personal knowledge
of when (the month and year) Pepperidge Farm began regular distributions to Walgreen and CVS
distribution centers (and for CVS, the month and year to the best of his recollection) and when
Walgreen and CVS began supplying regular quarterly reports to Pepperidge Farm about storespecific distributions.2 Mr. Holden’s use of the term “best of my recollection” does not indicate
a lack of personal knowledge, but rather Mr. Holden’s qualification of his recollection of precise
dates.
Finally, Pepperidge Farm’s remaining arguments—that Mr. Holden’s affidavit does not
contradict Pepperidge Farm’s prior statements about its possession of store-specific distribution
data and that the data is unimportant to the case—go to the merits of the sanctions motion and
will be considered by the court in that context.

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Further, the court notes that Pepperidge Farm’s January 11, 2011 letter to the plaintiffs’
counsel (Dkt. 384-1) stated that Mr. Holden had been “responsible for requesting and collecting
distribution data for CVS.”
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Conclusion
For the foregoing reasons, the plaintiffs’ motion (Dkt. 379) for leave to file the Affidavit
of William Holden is GRANTED. The clerk is directed to docket the Affidavit (379-1).
So ORDERED.
06/10/2011
Date: _________________

____________________________________
Debra McVicker Lynch
United States Magistrate Judge
Southern District of Indiana

Distribution:
Susanne Noyes Geraghty
GOODWIN PROCTER LLP
[e-mail]
Forrest A. Hainline III
GOODWIN PROCTER LLP
[e-mail]
William M. Horne
HORNE LAW LLC
[e-mail]
Julianna Marie Plawecki
ICE MILLER LLP
[e-mail]
Philip A. Whistler
ICE MILLER LLP
[e-mail]

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