American Home Assurance Company et al v. Greater Omaha Packing Company Inc.

Filing 332

MEMORANDUM AND ORDER - The Court will grant the defendant's motion to compel (filing 208 ) in part and deny it in part; plaintiffs' motion to exclude (filing 222 ) will be denied; and defendant's motion to overrule objections (filing 230 ) will be denied. Ordered by Senior Judge Lyle E. Strom. (JAB)

IN THE UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF NEBRASKA
AMERICAN HOME ASSURANCE
COMPANY and CARGILL MEAT
SOLUTIONS CORPORATION,

)
)
)
)
Plaintiffs,
)
)
v.
)
)
GREATER OMAHA PACKING COMPANY,)
INC.,
)
)
Defendant.
)
______________________________)

8:11CV270

MEMORANDUM AND ORDER

This matter is before the Court on three motions.
First, the defendant filed motion, brief, and index of evidence
to compel and reopen depositions (Filing No. 208, Filing No. 209
and Filing No. 210).

Second, the plaintiffs filed a motion,

brief, and index of evidence to exclude testimony of latedisclosed customers (Filing No. 222, Filing No. 223 and Filing
No. 224).

Third, the defendant filed a motion, brief, and index

of evidence to overrule the plaintiffs’ objections to written
discovery (Filing No. 230, Filing No. 231 and Filing No. 233).
The Court will grant the defendant’s motion to compel in part and
deny it in part; plaintiffs’ motion to exclude will be denied;
and defendant’s motion to overrule objections will be denied.

I.

BACKGROUND
In 2007, a U.S.D.A. inspection discovered a strain of

E. coli in ground beef which led to illness and a recall of
approximately 845,000 pounds of product (Filing No. 1, at 2-3).
The plaintiffs, American Home Assurance Company (“Assurance”) and
Cargill Meat Solutions, Corp. (“Cargill”), work in the meat
industry and were affected by the recall.

The plaintiffs claim

that the defendant, Greater Omaha Packing Company, Inc.
(“GOPAC”), adulterated the meat and caused the contamination.
Id. at 3.
GOPAC:

The plaintiffs bring the following claims against

breach of express warranty, breach of implied warranty of

merchantability, breach of implied warranty of fitness for a
particular purpose, breach of contract, and indemnity.
9.

Id. at 5-

GOPAC denies all claims and asserts a counterclaim against

the plaintiffs for the tortious interference with business
relationships and expectancies (hereinafter “Tortious
Interference”).

Filing No. 40, at 8.

The impetus for GOPAC’s counterclaim is an article in
which an attorney working for Cargill commented on the case to a
reporter.

On October 3, 2009, New York Times writer, Michael

Moss, published a ten-page, Pulitzer-prize winning story
regarding the E. coli outbreak, “The Burger That Shattered Her

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Life” (Filing No. 210-1, at 1-10).

In salient part, the New York

Times article (hereinafter “the Article”) read as follows:
Shawn K. Stevens, a lawyer in
Milwaukee working for Cargill,
began investigating. Sifting
through state health department
records from around the nation, Mr.
Stevens found the case of young
girl in Hawaii stricken with the
same E. coli found in the Cargill
patties. But instead of a Cargill
burger, she had eaten raw minced
beef at a Japanese restaurant that
Mr. Stevens said he traced through
a distributor to Greater Omaha.
“Potentially, it could let Cargill
shift all the responsibility,” Mr.
Stevens said. In March, he sent
his findings to William Marler, a
lawyer in Seattle who specializes
in food-borne disease cases and is
handling the claims against
Cargill.
“Most of the time, in these
outbreaks, it’s not unusual when I
point the finger at somebody they
try to point the finger at somebody
else,” Mr. Marler said. But he
said Mr. Stevens’s finding “doesn’t
rise to the level of proof that I
need” to sue Greater Omaha.
It is unclear whether Cargill
presented the Hawaii findings to
Greater Omaha, since neither
company would comment on the
matter.
Filing No. 210-1, at 9.

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I.

MOTION TO COMPEL
The nature of Stevens’ relationship with Cargill is an

integral element of GOPAC’s counterclaim.

GOPAC claims that

Cargill directed Stevens to divulge the progress of his
investigation to the New York Times reporter.

In discovery,

Cargill denied GOPAC correspondence between Cargill and Stevens
specifically regarding his communications to the press and the
effects of the Article.
privileged.

Cargill claims these communications are

GOPAC moves now to compel the communications or

otherwise provide them to the Court for an in camera review.
After review of the motions, briefs, and indices of evidence, the
Court does not find Cargill’s resistance to production
categorically convincing and therefore will review the documents
in camera to ascertain whether Cargill properly asserts its
privileges.
II.

MOTION TO EXCLUDE
Cargill wishes to exclude eighteen (18) specific

customers that stopped doing business with GOPAC following the
Article (Filing No. 222).

Throughout discovery, Cargill has

sought to discover the identity of these customers GOPAC claimed
to have lost as a result of the Article.
Since October 18, 2012, when Cargill served its First
Interrogatory and RFAs in which it asked for a customer list
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affected by the Article, GOPAC has refused to specify which
customers GOPAC lost (Filing No. 122-1).

Finally, the Court

ordered GOPAC to answer Cargill’s interrogatory “[n]o later than
February 11, 2014,” which was eight days after the close of
written discovery (Filing No. 203, at 4).

GOPAC electronically

filed its supplement by February 11, 2014, and named eighteen
(18) specific customers it lost (Filing No. 207).
Cargill complains that the filing is untimely.
filed in accordance with the Court’s order.

GOPAC

The Court issued

that ruling at Cargill’s behest and Cargill cannot not now seek
to exclude that which it ceaselessly tried to compel.

The close

of discovery was set on February 3, 2014 (Filing No. 116, at 1).
However, extensions of any deadline in the Final Progression
Order can be made by order of the Court.

Id.

The Court’s order

(Filing No. 203) effectively extended GOPAC’s time to file beyond
the close of discovery.

Therefore, the filing of GOPAC’s final

supplement to the interrogatories was timely.

Cargill’s motion

will be denied.
III. OBJECTIONS
This litigation began August 5, 2011 (Filing No. 1).
On January 17, 2014, GOPAC served the defendants forty-eight (48)
Requests for Admissions (“RFAs”) (Filing No. 231).

The

plaintiffs objected to all the RFAs as untimely, among other
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objections.

Primarily, the issue before the Court is whether the

RFAs were timely served on the plaintiffs.
In its Amended Final Progression Order, the Court
closed discovery on February 3, 2014 (Filing No. 273, at 1).
However, the Court’s order specified that RFAs should be served
on opposing counsel with sufficient response time to allow for
“rule time response” (Id.).

The parties do not dispute that the

effective deadline for serving RFAs on opposing counsel was
January 1, 2014.
Nonetheless, GOPAC served RFAs on the plaintiffs on
January 14, 2014.

The RFAs were untimely.

Defendant’s motion to

overrule the plaintiffs’ objections will be denied.
IT IS ORDERED:
1)

Cargill will produce those documents highlighted in

Filing No. 210-5 to the Court on or before March 25, 2014.
2)

The plaintiffs’ motion to exclude witnesses is

3)

The defendant’s motion to overrule objections is

denied.

denied.
DATED this 20th day of March, 2014.
BY THE COURT:
/s/ Lyle E. Strom
____________________________
LYLE E. STROM, Senior Judge
United States District Court

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