Winn-Dixie Stores, Inc. v. E. Mushroom Mktg. Coop.
Winn-Dixie Stores, Inc. v. E. Mushroom Mktg. Coop.
2021 WL 7967551 (E.D. Pa. 2021)
November 15, 2021
Schiller, Berle M., United States District Judge
Summary
The Court allowed Plaintiff's expert to amend his report in light of the newly discovered ESI, and allowed the use of the newly discovered documents at trial. The Court found that Defendants were substantially justified in their responses to Plaintiff's interrogatories and document productions, and declined to impose sanctions. The ESI was important to the case as it provided a factual foundation for the expert to amend his report with respect to damages suffered by Plaintiff.
Additional Decisions
WINN-DIXIE STORES, INC., et al.
v.
EASTERN MUSHROOM MARKETING COOPERATIVE, et al
v.
EASTERN MUSHROOM MARKETING COOPERATIVE, et al
CIVIL ACTION No. 15-6480
United States District Court, E.D. Pennsylvania
Filed November 15, 2021
Counsel
Krishna B. Narine, Salmon Riccheza Singer & Turchi LLP, Philadelphia, PA, Patrick J. Ahern, Theodore B. Bell, Ahern & Associates PC, Chicago, IL, for Winn-Dixie Stores, Inc., Bi-Lo Holdings, LLC.Francis X. Taney, Jr., Taney Legal LLC, Cherry Hill, NJ, Terri A. Pawelski, William A. Destefano, Stevens & Lee, Philadelphia, PA, for Eastern Mushroom Marketing Cooperative, Inc.
Terri A. Pawelski, William A. Destefano, Stevens & Lee, Philadelphia, PA, for Brownstone Mushroom Farms, Inc., To-Jo Fresh Mushrooms, Inc., Country Fresh Mushroom Co., Gino Gaspari & Sons, Inc., Kaolin Mushroom Farms, Inc., South Mill Mushroom Sales, Inc., Modern Mushroom Farms, Inc., Sher-Rockee Mushroom Farm, C & C Carriage Mushroom Co., Oakshire Mushroom Farm, Inc., Phillips Mushroom Farms, Inc., Louis M. Marson, Jr., Inc., Monterey Mushrooms, Inc., John Pia.
Dana A. Felmlee, Gary J. McCarthy, McCarthy Weidler PC, Philadelphia, PA, for Cardile Mushrooms, Inc.
William A. Destefano, Stevens & Lee, Philadelphia, PA, for Forest Mushroom Inc., Gaspari Bros. Inc., Leone Pizzini and Son, Inc., Michael Pia.
James J. Rodgers, Dilworth Paxson, Joel I. Fishbein, Litchfield Cavo LLP, Joshua Sarner, Sarner & Associates, Matthew C. Brunelli, Terri A. Pawelski, William A. Destefano, Stevens & Lee, Philadelphia, PA, Jane M. Shields, MacElree Harvey, Ltd., West Chester, PA, Jason S. Taylor, Conner & Winters LLP, Tulsa, OK, for Giorgi Mushroom Company, Giorgio Foods, Inc.
Joel I. Fishbein, Litchfield Cavo LLP, James J. Rodgers, Dilworth Paxson, William A. Destefano, Stevens & Lee, Philadelphia, PA, Jane M. Shields, MacElree Harvey, Ltd., West Chester, PA, Jason S. Taylor, Conner & Winters LLP, Tulsa, OK, for Mario Cutone Mushroom Co., Inc.
James J. Rodgers, Dilworth Paxson, Joel I. Fishbein, Litchfield Cavo LLP, William A. Destefano, Stevens & Lee, Philadelphia, PA, Jane M. Shields, Patrick J. Gallo, Jr., William J. Gallagher, MacElree Harvey, Ltd., West Chester, PA, Jason S. Taylor, Conner & Winters LLP, Tulsa, OK, for United Mushroom Farms Cooperative, Inc.
Bruce E. Gerstein, Garwin Gerstein and Fisher LLP, New York, NY, for Associated Grocers, Inc., Diversified Foods & Seasonings, Inc., M. Robert Enterprises, Inc., M.L. Robert, II, L.L.C., Market Fair, Inc., Wm. Rosenstein & Sons Co.
Schiller, Berle M., United States District Judge
ORDER
*1 AND NOW, this 15th day of November, 2021, it is hereby ORDERED that:
1. Upon consideration of Plaintiff Winn Dixie Stores, Inc.'s Rule 37 Motion Due to Certain Defendants' Failure to Disclose Relevant Documents in Discovery, For an Adverse Inference and to Allow the Use of Newly Discovered Documents of the Defendants to be Used at Trial (Dkt. 357), the responses and replies thereto, and oral argument held before this Court on November 4, 2021, Plaintiff's Motion [Pl.'s Mot.] is GRANTED in part and DENIED in part as follows:
a. Plaintiff's Motion is GRANTED with respect to Plaintiff's request to allow its expert to amend his report in light of the newly discovered documents, provided that all revisions must be specifically tailored to identifying the injury suffered by Plaintiff. Accordingly, the Court vacates the portion of its June 9, 2021 Memorandum (Dkt. 349) preventing Plaintiff's expert from offering his opinion with respect to damages sustained during the third damages period because Plaintiff has now provided documents demonstrating that there is a “factual foundation” that “the EMMC minimum pricing policy extended beyond August 2005.” (Id. at 27.) However, the expert may not amend his report with respect to damages suffered as a result of the EMMC's non-compete agreement.[1]
b. Plaintiff's Motion is GRANTED with respect to Plaintiff's request for permission to use the newly discovered documents at trial.
c. Plaintiff's Motion is DENIED in all other respects.[2]
*2 BY THE COURT:
Footnotes
In July 2020, this Court denied Plaintiff's request to amend the Complaint to add allegations regarding a non-compete agreement. (See Dkt. 280.) As stated more fully therein, Plaintiff was on notice of a possible non-compete years earlier (by virtue of references to a non-compete in the proceedings in related litigation) and was in possession of documents by December 2019 suggesting the EMMC may have adopted a non-compete agreement. (See id. at 6-8.) Nonetheless, Plaintiff delayed seeking leave to amend the Complaint until June 2020 and its request to amend the Complaint was therefore denied. (See id. at 8.) The Court is not persuaded that the newly discovered documents require revisiting its prior ruling or that Plaintiff's expert should revise his opinion with respect to the non-compete. Similarly, as noted below, Plaintiff's request to amend the Complaint is denied.
Plaintiff cites a litany of authorities to support its position that the Court should impose sanctions on Defendants and grant Plaintiff an adverse inference regarding concealment of documents. (See generally Pl.'s Mot. at 11-19 (citing Fed. R. Civ. P. 16(f), 26(g), and 37(b)-(d), as well as the Court's inherent power to impose sanctions).) The Court confines its analysis to Rule 37 and, as stated below, declines to impose sanctions at this time.
Federal Rule of Civil Procedure 37 provides courts with an array of sanctions in response to a party's failure to comply with discovery obligations. The decision to impose sanctions or order other relief under Rule 37 is “committed to the sound discretion of the district court.” Woods Servs., Inc. v. Disability Advocates, Inc., Civ. A. No. 18-296, 2018 WL 4932706, at *2 (E.D. Pa. Oct. 11, 2018) (quoting DiGregorio v. First Rediscount Corp., 506 F.2d 781, 788 (3d Cir. 1974)).
A party may oppose a motion under Rule 37(c) by showing that its alleged failure to comply with discovery obligations was “substantially justified” or “harmless.” Fed. R. Civ. P. 37(c)(1). Conduct is “substantially justified” if reasonable people could disagree as to whether a party complied with its obligations. See Avco Corp. v. Turn & Bank Holdings, Inc., Civ. A. No. 12-1313, 2017 WL 2224915, at *4 (M.D. Pa. May 22, 2017).
Plaintiff contends that Defendants failed to comply with their discovery obligations by making misrepresentations in response to interrogatory requests and by failing to produce certain documents. (See generally Pl.'s Mot. at 4-11.) Specifically, Plaintiff alleges that portions of Defendants' responses to Interrogatories 4, 9, and 10—that there were no communications regarding various topics after 2005—were false in light of the newly discovered documents, which Plaintiff alleges Defendants should have produced. (See id. at Ex. 2.) In response, Defendants argue that the documents in question were not responsive to Plaintiff's discovery requests. (See generally Certain Defendants' Brief in Opposition to Plaintiff's Rule 37 Motion [Defs.' Opp.] at 1-3.) Further, they assert that Plaintiff's interrogatories, Defendants' responses thereto, and their document production obligations must be interpreted in light of the Court's numerous discovery orders, including the April 2, 2020 Order directing Defendants to produce “additional documents relating specifically to the Winn-Dixie Plaintiffs.” (Id. at 7 (quoting Dkt. 216).)
The Court finds that Defendants were substantially justified in believing that their responses to Plaintiff's interrogatories and document productions satisfied their discovery obligations in light of this Court's orders. See Avco Corp., 2017 WL 2224915, at *3-4 (finding substantial justification where party reasonably believed documents were not within purview of discovery requests); Diaz v. N.Y. Paving Inc. Civ. A. No. 18-4910, 2021 WL 3524107, at *8 (S.D.N.Y. Aug. 11, 2021) (finding substantial justification where defendant's interpretation of discovery obligations was “arguably proper” and its responses to interrogatories were qualified in accordance with that interpretation such that it “adequately conveyed that it was producing only” limited information). Although Defendants' responses to Plaintiff's interrogatory requests—which appear to unequivocally state that there were no communications regarding certain topics (see Pl.'s Mot. Ex. 2 at 1-2, 4-6)—“understandably might have generated confusion,” Diaz, 2021 WL 3524107, at *8, the responses were made with the Court's April 2, 2020 Order instructing Defendants to produce documents “relating specifically to the Winn-Dixie Plaintiffs” as a backdrop. (See Dkt. 216.) The scope of the Defendants' responses and document productions was therefore qualified. See Diaz, 2021 WL 3524107, at *8 (declining to award sanctions where party's interrogatory responses were “awkwardly written” but “reflect[ed] a passable effort to indicate that whatever documents were being provided were limited”); see also Avco Corp., 2017 WL 2224915, at *4 (finding substantial justification where party “adequately demonstrate[d] that a reasonable person could find that the parties could differ as to whether [documents] were responsive to the” discovery requests). Accordingly, sanctions are not warranted under Rule 37(c) and the Court finds that Defendants have not violated a Court order, thereby foreclosing Plaintiff's request for sanctions under Rule 37(b). See Leeds v. Axis Gloucester City Storage, Civ. A. No. 08-1433, 2009 WL 1706547, at *3 (E.D. Pa. June 16, 2009) (finding substantial justification and declining to order sanctions for violation of a prior order where discovery request did “not clearly mandate production” of certain documents).
Sanctions are also not appropriate under Rule 37(d). Rule 37(d)'s provisions regarding “interrogatories do not apply for anything less than a serious or total failure to respond to interrogatories.” State Farm Mut. Auto. Ins. Co. v. New Horizont, Inc., 250 F.R.D. 203, 220 (E.D. Pa. 2008) (quoting 8A Charles Alan Wright, Arthur R. Miller & Richard L. Marcus, Federal Practice and Procedure § 2291 (Supp. 2007)). Plaintiff's interrogatories were extremely broad. Defendants did not fail to respond to them entirely and, as noted above, their responses were shaped by this Court's prior orders. Accordingly, the Court declines to exercise its discretion and award sanctions under Rule 37(d).