Lincoln Provision, Inc. v. Puretz, et al.

Filing 166

ORDER - Defendants' Motion in Limine or, in the Alternative, Motion to Compel (filing 148 ) is granted, in part. Defendants' motion is granted to the extent it seeks production of computer copies of the excel files that generated the a ttachments to Plaintiff's Expert Witness Disclosure; the pro-formas identified as Deposition Exhibits 61, 62, 65, 68, 71, 72 and 74; and the electronic files that generated the lists of assumptions for the pro-formas prepared by Plaintiff 9;s experts. Plaintiff shall produce the materials within ten (10) days of this Order. Defendants' motion is denied to the extent it seeks to exclude the expert testimony of Jeff Eastman, Gordon Reisinger and James Stevens. Ordered by Magistrate Judge F.A. Gossett. (GJG)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
LINCOLN PROVISION, INC.,
Plaintiff,
V.
ARON PURETZ, PMP, LLC, and
HASTINGS ACQUISITION, LLC,
nominal defendant,
Defendants.

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8:10CV344

ORDER

This matter is before the Court on Defendants’ Motion in Limine or, in the
Alternative, Motion to Compel. (Filing 148.) To the extent that Defendants’ motion seeks
the production of materials, it will be granted. The motion will be otherwise denied.
BACKGROUND
On or about March 4, 2010, Lincoln Provision, Inc. (“Plaintiff”) and Defendants Aron
Puretz and PMP, LLC (“Defendants”) formed Hastings Acquisition, LLC (“Hastings”), an
Illinois limited liability company. After its formation, Hastings became the successful bidder
for assets offered for sale and sold by a bankruptcy trustee in a proceeding in the United
States Bankruptcy Court for the District of Nebraska. Differences developed between the
members of Hastings and, as a result, Plaintiff ultimately gave notice of its intention to
dissociate from Hastings.
After the parties failed to reach an agreement with respect to the fair value of
Plaintiff’s distributional share of Hastings, Plaintiff instituted this suit under the Illinois
Limited Liability Company Act, 805 ILCS §180/1-1, et seq., seeking a determination of the
value of its interest.

1.

Motion in Limine

Defendants request that the Court exclude the expert testimony of Jeff Eastman
(“Eastman”), Gordon Reisinger (“Reisinger”) and James Stevens (“Stevens”). Defendants
argue that these individuals’ testimony regarding the issue of fair value should be excluded
because they lack the specialized knowledge to assist the trier of fact and their opinions are
inherently unreliable and unsupported by sufficient facts or data. The Court finds that
exclusion of these individuals’ testimony is neither warranted nor necessary.
Trial of this matter will be to the bench. The Court will determine the fair value of
Plaintiff’s distributional interest based on the evidence adduced at trial. The expert opinions
go to the heart of the issues to be decided and the Court believes that the testimony could be
helpful in determining fair value. The Court will assess the proper weight and consideration
to be given to these individuals’ testimony at trial. Accordingly, Defendants’ motion in
limine will be denied.
2.

Motion to Compel

In the alternative, Defendants seek an order compelling Plaintiff to produce electronic
copies of the excel files that generated the attachments to Plaintiff’s Expert Witness
Disclosure; the pro-formas identified as Deposition Exhibits 61, 62, 65, 68, 71, 72 and 74;
and the electronic files that generated the lists of assumptions for the pro-formas prepared
by Plaintiff’s experts. Defendants claim that Plaintiff’s lawyer, David Domina, previously
agreed to produce the electronic copies of Plaintiff’s experts’ pro-formas, but has not done
so. Defendants claim that they did not file a motion to compel Plaintiff to produce the
documents at an earlier time given Mr. Domina’s representation that the materials would be
produced voluntarily.
In response, Plaintiff asserts that Defendants’ motion is untimely. Plaintiff further
maintains that it has already produced hard-copies of the documents and that it is not
obligated to produce the documents in a different format.

2

The Court agrees with Defendants that the hard copies of the spreadsheets produced
by Plaintiff are difficult to read and understand. From the hard copies, it is difficult to
determine what pages comprise a complete pro-forma. Also, the hard copies are relatively
hard to decipher because they do not appear to include all columns on one page. An
electronic copy would seemingly be easier to understand because it would likely allow an
individual to read all columns together. For these reasons, Defendants’ motion to compel
production of these materials will be granted.
Accordingly,
IT IS ORDERED:
1.

Defendants’ Motion in Limine or, in the Alternative, Motion to Compel (filing
148) is granted, in part.

2.

Defendants’ motion is granted to the extent it seeks production of computer
copies of the excel files that generated the attachments to Plaintiff’s Expert
Witness Disclosure; the pro-formas identified as Deposition Exhibits 61, 62,
65, 68, 71, 72 and 74; and the electronic files that generated the lists of
assumptions for the pro-formas prepared by Plaintiff’s experts. Plaintiff shall
produce the materials within ten (10) days of this Order.

3.

Defendants’ motion is denied to the extent it seeks to exclude the expert
testimony of Jeff Eastman, Gordon Reisinger and James Stevens.

DATED March 29, 2013.
BY THE COURT:
S/ F.A. Gossett
United States Magistrate Judge

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