PSC INFO GROUP v. LASON, INC. et al

Filing 42

MEMORANDUM AND OPINION. SIGNED BY MAGISTRATE JUDGE ELIZABETH T. HEY ON 5/19/2009. 5/21/2009 ENTERED AND COPIES E-MAILED.(mbh, )

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IN THE UNITED STATES DISTRICT COURT F O R THE EASTERN DISTRICT OF PENNSYLVANIA P S C INFO GROUP v. L A S O N , INC., et al. : : : : : C IV IL ACTION N O . 08-2176 M E M O R A N D U M AND ORDER E L IZ A B E T H T. HEY U N IT E D STATES MAGISTRATE JUDGE M a y 19, 2009 O n April 22, 2009, the Honorable William H. Yohn referred this breach of c o n tra c t/to rtio u s interference case to me to resolve the outstanding discovery disputes e n u m e r a te d by counsel in a letter to the court dated April 29, 2009. After holding a c o n f ere n c e with counsel, the parties have resolved many of the issues discussed in the A p ril 29th letter. Specifically, with respect to Plaintiff's disputes numbered 3, 4, 5, and 10, the d isp u te has been resolved or the request withdrawn. Similarly, with respect to D e f en d a n ts ' Request for supplemental response to Document Production Request 21, and th e Second Document Production Requests 1 through and including 7, and 9, the parties h a v e resolved their disputes. I will address each of the remaining discovery disputes. P la in tif f 's Disputes 1 and 2 P la in tif f seeks the volume of letters sent out by Imperial, Lason, HOV, and S u p e rio r for Bay Area Credit ("BAC") over the alleged contract period of May 31, 2006, th ro u g h May 31, 2008 ("the contract period"). The Defendants have already provided th is information for Lason and have represented to the court that HOV did not send any letters. The Defendants object to providing the information for Imperial and Superior, a rg u in g that these entities were not parties to the contract. Considering the relationship of th e se entities (BAC, Lason, Superior and Imperial are all owned by HOV) and the breadth o f discoverable information, see Fed. R. Civ. P. 26(b)(1), the Defendants shall produce th e volume of letters sent out by Superior and Imperial during the contract period. Plaintiff also seeks the test files and letter samples sent to PSC and to other p ro c e ss in g /m a ilin g entities, specifically Lason, Imperial and Superior. Considering that o n e of the defenses is that PSC caused an unreasonable delay in processing the letters re q u e ste d by BAC, the Plaintiff is entitled to these test documents. Defendants shall th e re f o re produce a list of the test files or sample letters they sent to PSC, Lason, S u p e rio r, and Imperial during the contract period. Plaintiff's Disputes 6 and 7 P lain tiff 's counsel explained that he seeks the licenses for certain servers to e sta b lis h the corporate structure and relationship between the HOV entities. However, he a g re e d that if the Defendants produced other evidence, sought in Dispute 7, he would w ith d ra w the request for the server information. With respect to Dispute 7, Plaintiff seeks minutes and share certificates for HOV S e rv ic e s , LLC, HOV Services, LTD, BAC, Lason, Inc., and Rustic Canyon, III LLC.1 At the conference, it was represented that Rustic Canyon was the corporate v e h ic le HOV used to acquire Lason. 2 1 T h e minutes are potentially relevant to the corporate structure of the HOV entities and the ro le HOV's acquisition of Lason played in the events at issue. Therefore, I will grant the re q u e st with respect to minutes referring to the merger and/or acquisition of Lason by H O V . Plaintiff's counsel agreed that, with this information, he withdraws his request for th e server information in Dispute 6. P la in tif f 's Dispute 8 P la in tif f seeks the "integration documents" regarding the choice of p rin tin g /m a ilin g vendors in light of the merger of HOV and Lason. These documents m a y be relevant to the tortious interference claim and the defense that Lason is not a v e n d o r under the contract, but is a sister company to BAC. Thus, Defendants shall p ro d u c e any documents related to the choice of a printing/mailing vendor during the c o n tra c t period. Plaintiff's Dispute 9 P la in tif f seeks to depose J. Reynolds, the CFO of Lason, who became the CFO of H O V . The defense argues that Mr. Reynolds has no relevant testimony to offer. C o n side rin g Mr. Reynolds' positions at the relevant times, I will grant the Plaintiff's re q u e s t for a one-hour telephonic deposition. Plaintiff's Dispute 11 S in c e counsel sent the letter of April 29, a new issue has arisen. During the d e p o sitio n of Vic Negi, defense counsel allegedly instructed the witness not to respond to 3 a question regarding Vic Negi's understanding of the term "exclusive agent" as used in th e contract. During the discovery conference, defense counsel explained that Vic Negi w as not involved in the contract at issue. As an alternative to continuing Mr. Negi's d e p o sitio n , Plaintiff's counsel suggested that the relevant defendants answer a single in te rro g a to ry, asking what was the understanding of the term "exclusive agent" in the c o n tra c t. Defense counsel agreed. D e f en d a n ts ' Dispute 1 (Interrogatory 3) D e f e n d a n ts seek a specific list of the steps taken by PSC to set up electronic a c co u n ts and services. The Plaintiff has already agreed to the deposition of Michael H e n n e ss e y, who Plaintiff's counsel believes is in the best position to respond to this q u e stio n . In the event Mr. Hennessey's deposition testimony does not provide a response, d e f en s e counsel may reassert this objection. D e f en d a n ts ' Dispute 2 (Interrogatory 15) P la in t if f agreed to supplement the answer to this interrogatory to identify the first d a te on which PSC contacted BAC after receiving the last production of documents for p ro c e ss in g pursuant to their contract. D e f en d a n ts ' Dispute 3 (Interrogatory 18) In response to the request to describe PSC's efforts to mitigate damages, Plaintiff h a s agreed to provide documents evidencing product volume broken down by month over th e contract period. 4 D e f en d a n ts ' Dispute 4 (Document Request 3) In response to a document request designed to determine lost profits, Plaintiff a g re e d to produce monthly profit/loss statements and documents showing cost per unit. Additionally, the Plaintiff shall produce ledger entries showing cost calculations, allowing th e Defendant to prepare for Ms. Gunning's deposition. These productions shall cover th e contract period unless otherwise agreed. D e f en d a n ts ' Dispute 5 (Second Document Request 10) D ef en d an ts seek information regarding PSC customer complaints from January 2 0 0 4 to the present. This information is potentially relevant to Defendants' argument that P S C did not adequately perform under the contract. I will grant the Defendants' request f o r customer complaints from January 2004 to the end of the contract period, limited to th o s e complaints involving delays in set-up and processing. Defendants' Dispute 6 D e f en d a n ts seek to continue the deposition of PSC's CEO Joseph Greco to answer q u e stio n s about PSC's other lawsuits against its customers, to show a pattern of filing u n f o u n d e d contract claims. Counsel agreed that defense counsel will provide the relevant c o m p la in ts to Plaintiff's counsel for Mr. Greco's review. At his deposition, Mr. Greco w ill answer questions regarding whether he verified the complaint, his understanding of th e language in the underlying contracts, and the decision to file suit. A n appropriate Order follows. 5

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