Brandenburg v. Cousin Vinny's Pizza, LLC et al

Filing 100

REPORT AND RECOMMENDATION1THAT THE PARTIES AGREED ORDER ON PLAINTIFFS MOTION FOR CONTEMPT BE GRANTED. Signed by Magistrate Judge Michael J. Newman on 10/24/2017. (dm)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT DAYTON
THOMAS BRANDENBURG, et al.,
Plaintiffs,

Case No. 3:16-cv-516

vs.
COUSIN VINNY’S PIZZA, et al.,

District Judge Walter H. Rice
Magistrate Judge Michael J. Newman

Defendants.
______________________________________________________________________________
REPORT AND RECOMMENDATION1 THAT THE PARTIES AGREED ORDER ON
PLAINTIFFS’ MOTION FOR CONTEMPT BE GRANTED
______________________________________________________________________________
This civil case is before the Court on Plaintiffs’ motion for contempt. Doc. 34. Defendants
filed a memorandum in opposition to Plaintiffs’ motion (doc. 44) and, thereafter, Plaintiffs filed a
reply (doc. 49). On August 7, 2017, the Court held a hearing on Plaintiffs’ motion. See docs. 50, 53.
Subsequent to the Court’s hearing on Plaintiffs’ motion, the parties conferred and have worked
collaboratively, in good faith, to address the discovery concerns presented in Plaintiffs’ motion for
contempt.

The work of counsel in this regard should be applauded and demonstrates the

professionalism and civility the Court expects of litigants and attorneys practicing before the Court.
In an effort to resolve the outstanding issues presented in Plaintiffs’ motion, the parties have
conferred and negotiated terms of a proposed order for the Court’s consideration (see Exhibit A,
attached).

The undersigned has carefully reviewed the parties’ proposed agreed Order and

RECOMMENDS that it be adopted.

Date:

October 24, 2017

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s/ Michael J. Newman
Michael J. Newman
United States Magistrate Judge

Attached hereto is a NOTICE to the parties regarding objections to this Report and
Recommendation. In an effort to expedite consideration of this Report and Recommendation, the parties
may file a notice of no objection to the recommendation set forth herein.

NOTICE REGARDING OBJECTIONS
Pursuant to Fed. R. Civ. P. 72(b), any party may serve and file specific, written objections to
the proposed findings and recommendations within FOURTEEN days after being served with this
Report and Recommendation. This period is not extended by virtue of Fed. R. Civ. P. 6(d) if served
on you by electronic means, such as via the Court’s CM/ECF filing system. If, however, this Report
and Recommendation was served upon you by mail, this deadline is extended to SEVENTEEN
DAYS by application of Fed. R. Civ. P. 6(d). Parties may seek an extension of the deadline to file
objections by filing a motion for extension, which the Court may grant upon a showing of good
cause.
Any objections filed shall specify the portions of the Report and Recommendation objected
to, and shall be accompanied by a memorandum of law in support of the objections. If the Report
and Recommendation is based, in whole or in part, upon matters occurring of record at an oral
hearing, the objecting party shall promptly arrange for the transcription of the record, or such
portions of it as all parties may agree upon or the Magistrate Judge deems sufficient, unless the
assigned District Judge otherwise directs.
A party may respond to another party’s objections within FOURTEEN days after being
served with a copy thereof. As noted above, this period is not extended by virtue of Fed. R. Civ. P.
6(d) if served on you by electronic means, such as via the Court’s CM/ECF filing system. If,
however, this Report and Recommendation was served upon you by mail, this deadline is extended to
SEVENTEEN DAYS by application of Fed. R. Civ. P. 6(d).
Failure to make objections in accordance with this procedure may forfeit rights on appeal.
See Thomas v. Arn, 474 U.S. 140, 153-55 (1985); United States v. Walters, 638 F.2d 947, 949-50
(6th Cir. 1981).

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
Thomas Brandenburg, et al.,
Plaintiffs,
vs.
Cousin Vinny’s Pizza, LLC, et al.,
Defendants.

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Case No. 3:16-cv-516
Judge Walter H. Rice
Magistrate Judge Michael J. Newman

AGREED ORDER ON PLAINTIFFS’ MOTION FOR CONTEMPT
This matter came before the Court on Plaintiffs’ Motion for Contempt (Doc. 34)
(the “Motion”). In an effort to discover the facts concerning the destruction of mileagerelated data in Defendants’ possession and in the hope that discovering such facts will
help to resolve or obviate the need for resolving issues raised in the Motion, the parties
have submitted this Agreed Order to the Court. For good cause shown, IT IS
THEREFORE ORDERED, ADJUDGED AND DECREED that the Motion be resolved as
follows by agreement of the parties:
1. The forensic IT firm hired by Defendants, Binary Intelligence, shall cease
work immediately.
2. Within 7 days of the date of this Agreed Order, Plaintiffs and Defendants will
jointly select and retain a new forensic IT/computer expert (“expert”) to
address the computer-related issues raised in Plaintiffs’ Motion and related
briefing. In the event that the parties are unable to agree on an expert, the
parties shall present their choices to the Court, and the Court will select an
expert. The Court may select one of the parties’ choices or any other qualified
expert.
3. The Court will supervise future discovery into the missing mileage-related
data.

{K0636371.1}

4. All communications between any party (or party’s counsel) and the expert
shall take place jointly with counsel for Plaintiffs and Defendants present or
copied (i.e., no ex-parte communications), and to the extent such
communications are in writing, the Court shall be copied thereon.
5. To the extent the expert believes it necessary, Defendants will permit the
expert to enter their facilities in order to image and/or clone the computers
and other machines that may contain delivery-related data at each of
Defendants’ store locations and from any Cousin Vinny’s office or
headquarters. These site visits will be completed outside Cousin Vinny’s
regular business hours and/or overnight over a series of nights, if necessary.
6. To the extent the expert believes it necessary, Defendants will provide the
expert with complete access to the computers and/or other machines that
may contain delivery-related data, all necessary computers, servers, hard
drives, and other sources and/or repositories of data from each of its store
locations and from any Cousin Vinny’s office or headquarters to the expert.
7. The expert’s work will be focused on the following: (1) determining the
causes, circumstances, and time line related to the data deletion or
destruction referenced in Plaintiffs’ Motion and the related filings; (2)
retrieving all data relating to deliveries completed at the each of the stores
from December 23, 2013 through July 2016; (3) providing a report to the
Court, and to the parties (a) stating whether the data was recoverable and, if
not, why not, (b) identifying which data could be recovered and which could
not, and (c) identifying the timing and causes, to the extent discernible, of any
deletion or destruction of data and, in so doing, distinguishing the deleted or
destroyed data that was recoverable from that which was not recoverable.
The expert shall not disclose to Plaintiffs any Cousin Vinny’s information not
relating to payroll, employee compensation, mileage, the hack of Cousin
Vinny’s computer systems, the data reset of Cousin Vinny’s computer
systems, or other topics pertaining to Plaintiffs’ claims of minimum wage
violations or any other source of data loss.
8. Defendants shall pay for the services provided by the expert and all other
costs and expenses related thereto.
9. The Court will decide whether attorney fees are appropriate, and if so the
amount of attorney fees and costs to be awarded to Plaintiffs in connection
with the matters addressed in Plaintiffs’ Motion and the related filings.
Within 14 days of this Order, Plaintiffs may file a motion in support of a fee
award. Defendants will have 14 days to respond to that motion, and Plaintiffs
will have 7 days to file a reply.

{K0636371.1}

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IT IS SO ORDERED.
______________
UNITED STATES DISTRICT JUDGE
Agreed:
/s/Andrew R. Biller
Andrew R. Biller (0081452)
Paul M. De Marco (0041153)
Andrew P. Kimble (0093172)
Markovits, Stock & De Marco LLC
3825 Edwards Road, Suite 650
Telephone: [phone]
Facsimile: [phone]
Email: [e-mail]
Email: [e-mail]
Email: [e-mail]

/s/Samir B. Dahman
Samir B. Dahman (0082647)
Trial Attorney
Alexis V. Preskar (0095619)
Email: [e-mail]; [e-mail]
Kohrman Jackson & Krantz LLP
10 West Broad Street, Suite 1900
Columbus, OH 43215
Tel: [phone]
Fax: [phone]
Ghassan J. Deek (0096328) (admitted pro
hac vice)
Email: [e-mail]
Deek Law, LLC
1563 E. Dorothy Lane, Suite 300F
Kettering, OH 45429
Tel: [phone]
Fax: [phone]

Counsel for Plaintiffs

Counsel for Defendants Cousin Vinny’s Pizza,
LLC, CVP17, LLC, Cousin Vinny’s Pizzeria,
L.L.C., Cousin Vinny’s Pizza #9 LLC, Third
Day Pizzeria, LLC, R&M Pizzeria, LLC,
CVP014 LLC, CVP 16 LLC, CVP18 LLC,
CVP19 LLC, CVP DNC LLC, CVP Royality
LLC, Dough Boy Fresh LLC, CVP Dough
LLC, CVP Dough 2, LLC, MGL Pizza, LLC,
CVP 10, Inc., and Mo Rashad

{K0636371.1}

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