Malone et al v. Kantner Ingredients, Inc. et al

Filing 192

ORDER that plaintiffs' Motion to Strike the defendants' brief 186 is denied. Plaintiffs' Motions to Compel 117 and 139 are granted in part and denied in part. Ordered by Magistrate Judge Cheryl R. Zwart. (JSF)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
THERESA MALONE, et al.

Case No. 4:12cv3190

Plaintiffs,
vs.

ORDER

DOUGLAS KANTNER, et al.
Defendants,
This matter came before the Court on the Plaintiffs’ Motion to Compel. A
hearing was held on August 26, 2014 to discuss the issues raised in that Motion and in
the briefs presented by Counsel. After reviewing those Briefs and hearing arguments
from Counsel:

A.

Plaintiffs’ Motion to Strike the defendants’ brief, (Filing No. 186), is

denied.

B.

Plaintiffs’ Motions to Compel, (Filing No. 117 and Filing No. 139), are

granted in part and denied in part as follows:

1.

The Plaintiffs have requested copies of all invoices related to
transactions between Blue Valley Foods and Kantner Group, Kantner
Ingredients, Chianti Cheese Company of New Jersey, Custom Dairy
Products and Kantner Custom Dairy Products (collectively the
“Kantner companies”). The Defendants are instructed to locate the
Kantner Group Server and determine if a full imaging was performed.
They will provide any invoices located on that server, names of those
who have had access to it, and all metadata related to that server to the
Plaintiffs.

2.

The Plaintiffs have requested any documents related to the
administrative fees Blue Valley Foods paid to Kantner Ingredients and
1

then subsequently to Kantner Group. That request includes documents
related to what the administrative fee was comprised of and then how it
was allocated to the Kantner companies and Blue Valley Foods. The
Defendants believe they have provided all such documents, to the
extent they still exist. The Defendants have agreed to perform a
thorough search to verify that all such documents have been provided
to the Plaintiffs. If additional documents related to the administrative
fee are located by the Defendants, those will be provided to the
Plaintiffs.
3.

During the hearing the subject of whether the Plaintiffs have received
all work Papers, backup information, and documents produced by Stroh
Johnson, the accountants for the Kantner companies was raised. The
Defendants will verify that all such documents have been provided and
to the extent they have not been provided, the Defendants have agreed
to provide such documents to the Plaintiffs and are ordered to do so.

4.

The Plaintiffs have requested copies of all commission agreements and
other arrangements the Defendants had with third parties, whereby the
Defendants received commissions or other payments from sales made
to Blue Valley Foods. The Defendants indicated they are unaware of
any such arrangements. The Plaintiffs believe that Eurial Poitouraine
and Armour as two companies that the Defendants had such
arrangements with. The Defendants are instructed to make further
inquiry as to this issue and to produce copies of all such documents that
exist to the Plaintiffs.

5.

The Plaintiffs have requested copies of all documents related to the
Receivership. The Defendants indicated they believe they have
produced all such documents. The Defendants will confirm that all such
documents they are aware of have been produced to the Plaintiffs.

6.

The Plaintiffs have requested the Sent Mail from all employees of the
Kantner companies. Email from each individual’s Inbox has been
provided, but Sent Mail was not. The Defendants indicated they believe
the Sent Mail is not available to be produced. The Defendants will
produce information regarding the identity of the third party that
examined the email and determine where that email was stored, what
steps were taken to try to recover the Sent Mail, and whether the Sent
2

Mail is recoverable. If the Sent Mail is recoverable, the Defendants will
produce it to the Plaintiffs.
7.

The Plaintiff have requested all documents related to any setoff or
settlement agreements to which Blue Valley Foods, Inc. was a party.
The Defendants have filed a Motion to submit a document under seal,
which motion was granted. That agreement related to a settlement of
two lawsuits involving Defendant Kantner, IDI, Inc. and Blue Valley
Foods. The Plaintiffs indicated that there is a separate setoff agreement
involving Kantner Ingredients, Chianti Cheese, and JVM. The
Defendants have agreed to try to locate any such documents and to
produce them to the Plaintiffs and are ordered to do so. The Defendants
further indicated that if that setoff agreement contains a confidentiality
clause, they intend to file it under seal.

8.

The Plaintiffs requested documents, correspondence, billings, and
Court filings, which relate to attorney Wolinetz’s representation of
Blue Valley Foods, Inc. Copies of Mr. Wolinetz’s billings, filings, or
communications with third parties will be produced to the Plaintiffs.
The other portions of Mr. Wolinetz’s file requested by the Plaintiffs are
covered under attorney client privilege and/or Work Product Doctrine
and thus are not discoverable. The parties will try to resolve these
issues in the next week.

9.

The Plaintiffs have requested that the Defendants be required toproduce
a Privilege Log, listing the documents they are claiming are privileged.
The Defendants have made clear that while they have asserted
privilege, they have not withheld any actual documents on the basis of
privilege, other than documents described in the preceding paragraph,
which are clearly privileged and for which no log is required. As such,
no Privilege Log will be required.

Dated this 2nd day of September, 2014.
BY THE COURT:
s/ Cheryl R. Zwart
United States Magistrate Judge

3