Fyfe Co., LLC et al v. Structural Group, Inc. et al

Filing 161

MEMORANDUM AND ORDER DENYING IN PART AS MOOT and GRANTING IN PART #148 Local Rule 104.8 Certificate. Signed by Magistrate Judge J. Mark Coulson on 3/25/2015. (hmls, Deputy Clerk)

UNITED STATES DISTRICT COURT
DISTRICT OF MARYLAND
Chambers of
J. Mark Coulson
U.S. Magistrate Judge

101 West Lombard Street
Baltimore, Maryland 21201
[e-mail]
Phone: [phone]
Fax: [phone]

March 25, 2015
LETTER OPINION TO ALL COUNSEL OF RECORD
Re: Fyfe Co., LLC et al v. Structural Group, Inc. et al
Civil No. 13-CV-176-CCB
Dear Counsel:
The Court has before it Defendant Structural Group's Motion to Compel
Document Production, Plaintiffs’ Opposition and Defendant’s Reply. (ECF Nos. 148,
157 & 159). This dispute concerns subpoenas sent by Defendants to Aegion
Corporation (Plaintiffs’ parent company) and Insituform Technologies, LLC (Plaintiffs’
sister company). These third parties are represented by the same lawyers who
represent the named Plaintiffs. A telephone conference was held with Counsel today.
During that conference the Parties satisfied themselves that certain categories of dispute
have been produced. However, two issues remain.
As to the first, Defendants have requested documents relating to the departure of
Aegion’s CEO Joseph Burgess. Plaintiffs respond that such information is not relevant
and that the reason for his resignation is wholly personal and unrelated to this matter or
the Plaintiffs’ financial position. His departure would, of course, be relevant if it was
due in whole or in part to the performance of the Plaintiffs as this would be an alternate
cause of the financial harm that Plaintiffs contend they suffered at the hands of the
Defendants. By contrast, if the departure was for wholly personal reasons, it would be
irrelevant. In this regard, Plaintiffs have agreed to provide an ex parte affidavit
describing the details of Mr. Burgess’s departure and confirming that his departure was
unrelated to the performance of the named Plaintiffs for an in camera review. Upon
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that review, I will make a determination as to whether documents related to his
resignation should be produced.
As to the second, Defendants have requested Aegion and Insituform documents
relating to Plaintiffs’ hard backlog, soft backlog, sales funnel, and the Individual
Defendants’ impact thereon. Although Aegion and Insituform have represented that
they have produced some of those documents (i.e. all of those in the possession of the
named Plaintiffs and any in the possession of Aegion and Insituform sent to or from the
named individual Defendants), Plaintiffs have not specifically searched for documents
in the possession of Aegion and Insituform that may not have been generated by,
received from or otherwise included the named individual Defendants. Plaintiffs are
ordered to look for any documents not previously produced in this last category for
Aegion and Insituform. The parties verified that the relevant timeframe begins in
August of 2012. Although the parties dispute the appropriate end date, the Court is
convinced by Defendants’ argument that the appropriate timeframe is through the
present given Plaintiffs’ position (and Plaintiffs’ expert’s opinion) that Defendants’
actions continue to cause damage to Plaintiffs’ hard backlog, soft backlog and sales
funnel.
Accordingly, Defendants’ Motion to Compel Document Production is DENIED
IN PART AS MOOT and GRANTED IN PART. The Court will enter a separate order
addressing the resignation documents after it completes its in camera review of the
affidavit which should be submitted by March 27, 2015.
Despite the informal nature of this letter, it is an Order of the Court and the Clerk
is directed to docket it as such.
Sincerely yours,
/s/
J. Mark Coulson
United States Magistrate Judge