I. RECOMMENDATION

*1 It is respectfully recommended that the relief requested by Plaintiff in his letter to the Court dated October 6, 2021 be denied, and the relief request by the Defendant in its October 6, 2021 letter to the Court be denied.

II. REPORT

A. FACTUAL AND PROCEDURAL BACKGROUND

By order dated October13, 2021 (ECF No. 85), the Court appointed me Discovery Master to oversee the final stage of discovery in this litigation. Various discovery issues had been presented by the parties to the Court in their letters dated October 6, 2021. Thereafter, I arranged a conference call with counsel for both parties wherein I established a schedule for the parties to make written submissions to me outlining their respective discovery issues and setting forth their arguments. I also invited the parties to submit to me any exhibits and materials that they believed support their positions.

I have now studied those submissions, which included: Plaintiff's First Amended Complaint; the Employment Agreement at issue in this case; the Report and Recommendation of Magistrate Judge Lisa Pupo Lenihan (ECF No. 33); the October 6, 2021 letters from the parties to the Court; Plaintiff's October 11, 2021 letter to the Court; Plaintiff's letter to me dated February 14, 2022; Defendant's letter to me dated March 4, 2022; the full deposition transcript of Patrick R. Viancourt; the full deposition transcript of Elaine Bellin; the exhibits attached to those depositions.

Elaine Bellin is the CEO of Defendant, Paragon Wholesale Foods, Corp. (“Paragon”). By Employment Agreement effective January 28, 2019, Ms. Bellin hired Plaintiff, Patrick Viancourt, to be Paragon's President. Mr. Viancourt was terminated without cause approximately ten months later, on November 29, 2019.

Plaintiff then brought this lawsuit claiming that Paragon breached the Employment Agreement by failing to pay him a Long-Term Incentive Plan payment in the approximate amount of $105,000.00.[1]

Section 3.3 of the Employment Agreement states in part:

There is no dispute, however, that the actual “Plan as set forth in the attached Exhibit B” was never mutually agreed upon or drafted. No Exhibit B was ever attached to the Employment Agreement. Viancourt Depo. pp. 166, 183.

It is Plaintiff's position that it was not necessary to draft a Long-Term Incentive Plan and attach it to the Employment Agreement because Section 3.3 of the Employment Agreement already contained all material terms of the Long-Term Incentive Plan. Viancourt Depo. p. 166.

Ms. Bellin testified that the parties never agreed to a Long-Term Incentive Plan before Mr. Viancourt left Paragon. She testified that they were trying to get there, to get to something that they could have an agreement on. Bellin Depo. pp. 130-131. But they never got to the point where they developed a Long-Term Incentive Plan because Mr. Viancourt was terminated ten months after he started employment. Bellin Depo. pp. 156-157.

B. DISCOVERY DISPUTES

1. Plaintiff

*2 Both parties have exchanged written discovery and made multiple productions of documents. Paragon deposed Plaintiff in August 2021, and Plaintiff deposed Paragon's CEO, Elaine Bellin, in September 2021. Plaintiff February 14, 2022 Letter, p. 2.

Plaintiff first asserts that Defendant has failed “to adequately search for and produce highly relevant documents and communications.” February 14, 2022 Letter, p. 2. Plaintiff states that Paragon has not produced any emails from Plaintiff's corporate email account on the subject of long-term incentive plan. Rather, “nearly all the communications produced by Paragon are emails between Ms. Bellin and Plaintiff using his personal email address.” Id., p. 3. Plaintiff states that he therefore “believes” that Ms. Bellin has failed to conduct a proper search, has intentionally withheld relevant emails, or has deleted relevant emails.

Plaintiff's suspicions, however, are not supported by the deposition testimony of Ms. Bellin. Ms. Bellin testified that she was the only person at Paragon who dealt with Plaintiff regarding the employment contract, including the LTIP; she further testified that this information was maintained in a separate file not accessible to anyone but Ms. Bellin. (Bellin Depo. pp. 33-44.) Ms. Bellin testified that she personally conducted the search for documents, and that she searched wherever [she] thought she could get information from. Bellin Depo. p. 18. Ms. Bellin also testified repeatedly that nothing had been deleted or destroyed. Bellin Depo. pp. 29, 31, 33-34.

Plaintiff next argues that Paragon's document production was improper because Ms. Bellin did not search the devices of other Paragon employees for emails about the LTIP. Id., p. 4. Here too, Ms. Bellin addressed this concern of Plaintiff's under oath, in her deposition. As noted above, Ms. Bellin testified that she was the only person who dealt with Plaintiff regarding the Employment Agreement and LTIP; that this information was kept in a separate file by Ms. Bellin and accessible only to her.

In addition, the record here shows that during Ms. Bellin's deposition, counsel for Defendant agreed to address Plaintiff's concerns about allegedly missing documents. The record shows that defense counsel revisited the document issue with Defendant and asked the Defendant to conduct another follow-up search, and that the Defendant did so. Defense counsel then wrote to Plaintiff's counsel and reported the results of this second search: no additional documents were found relative to the Employment Agreement and LTIP. March 4, 2022 Letter, p. 6.

Nevertheless, Plaintiff now seeks numerous discovery sanctions against Defendant: that I compel Defendant Paragon, to conduct another search for relevant documents; that a Paragon representative supply an affidavit outlining the efforts made to locate documents; that I order or recommend that Plaintiff may re-depose Ms. Bellin; that I impose monetary sanctions against Defendant, Paragon.

After reviewing all materials submitted by the parties, I am persuaded that Plaintiff is not entitled to any of the relief it seeks, for several reasons. First, Defendant has already conducted at least two comprehensive searches for relevant documents. There is no reason to believe that a third search will turn up anything new. Second, an affidavit from a Paragon employee regarding its method of collecting documents would be redundant. Ms. Bellin, the CEO of Paragon, has already testified under oath regarding the method of collection. Third, after reading Ms. Bellin's deposition transcript in its entirety, I can see no legitimate need for Plaintiff to re-depose Ms. Bellin. Nor do I see a reason why Plaintiff should be permitted to do so. Ms. Bellin was thoroughly examined by Plaintiff's counsel, over multiple hours, on all areas of legitimate inquiry. A second deposition would be nothing more than unnecessary repetition.

*3 Fourth, Plaintiff's mere suspicions of discovery abuses are insufficient grounds for imposing sanctions on Defendant.

I am persuaded by the reasoning in Dunn v. Mercedes Benz of Ft. Washington Inc., 2012 WL 424984 (E.D. of Pa. 2012), a case cited by both parties. Here the District court held that a party's allegation that its opponent destroyed or withheld materials cannot be based on speculation, conjecture or negligence:

Id. at 6.

I am also persuaded by the reasoning of Judge Gibson of our Western District Court In Alley v. MTD Products, Inc., 2018 WL 4689112 (W.D. Pa. 2018):

Id. at 2.

In his February 14, 2022 submission, Plaintiff next asserts that Defendant has failed to implement a “litigation hold” and has therefore failed to preserve relevant evidence. February 14, 2022 Letter, p. 7. Plaintiff asserts that these failures on Defendant's part “raise concerns of potential spoliation.” Id., p. 7.

Plaintiff cites case law for the proposition that spoliation sanctions are appropriate where there is knowing and intentional conduct on the part of the offending party that led to the non-production. Id. p. 8. Yet, Plaintiff has not shown intentional conduct on the part of Paragon to actively suppress the production of relevant documents.

In fact, the record in this case is quite to the contrary. Here the CEO herself actively conducted the document search to ensure the production of all relevant documents. Here the CEO maintained the relevant documents in a separate location, not accessible to any other employee. All of this would suggest that Defendant made special efforts to preserve all relevant documents. There is no suggestion whatsoever of spoliation.

Plaintiff's final argument in the February 14, 2022 submission is that “Mr. Levicoff's improper deposition conduct prevented Plaintiff from obtaining a fair examination of Ms. Bellin and should be sanctioned.” February 14, 2022 Letter, pp. 9-17.

After reading the Bellin deposition in its entirety, it is abundantly clear that Mr. Levicoff did not engage in improper deposition conduct; nor did he impede Plaintiff's counsel from obtaining a fair examination of Ms. Bellin.

If anything, the transcript reveals that Mr. Levicoff showed restraint in not bothering to object to a number of problematic questions in the course of this (nearly five hour) deposition.

For example, there were a number of questions like:

Q: So in gathering the documents, you're saying that you still – you only looked for your personal stuff, you didn't look at any other employees.

It seems to me that this sort of question is awkward for several reasons. First, it is vague. What does the questioner mean exactly by “personal stuff?” It is possibly compound in that it asks both if Ms. Bellin looked for her personal stuff and whether Ms. Bellin looked “at other employees.” Perhaps most fundamentally, it mischaracterizes Ms. Bellin's earlier testimony in the deposition where she stated that Pat Viancourt's information was not in a database accessible to other employees, but was in Elaine Bellin's files in Elaine Bellin's computer. Bellin Depo. p.20.

*4 Yet, Mr. Levicoff did not object to this question, nor did he object to a number of other questions that were problematic in similar ways. Rather, he stayed silent and allowed Plaintiff's counsel and Ms. Bellin to work through matters on their own. See, for example, exchanges at pp. 28-29; 31; 83.

It was only where a question created significant confusion that Mr. Levicoff objected to the form. For example, at p. 73, line 18. It is unclear whether Plaintiff's counsel is asking the witness to agree to various assertions of fact made by Plaintiff's counsel, or whether Plaintiff's counsel is asking the witness to assume the facts are true for the purpose of laying the groundwork for the question at p. 74, line 3: “You had said that – that you rejected this.”

There were a number of instances where Ms. Bellin accepted Plaintiff's counsel's assertions to be true. For example, at p. 78, Ms. Bellin did not recognize a particular document as the first draft of the Employment Agreement. Yet Ms. Bellin accepted that fact to be true, which allowed further questioning regarding the document. Mr. Levicoff did not interject, but allowed Plaintiff's counsel and the witness to work through this.

Similarly, at p. 91, Plaintiff's counsel asserts that a particular document is a “clean red-line version of the agreement.” Plaintiff's counsel does not ask the witness to confirm that assertion but simply goes on to other questions about the document. Again, Mr. Levicoff does not intervene.

Beginning on p. 91, Plaintiff's counsel begins a series of questions about blue text on a document and red strikeout. At one point, Ms. Bellin states that she will “accept that” that language in blue is from her or from her attorney. Mr. Levicoff appears to be concerned that there is some confusion whether Plaintiff's counsel is asking Ms. Bellin to accept the fact that the blue text came from Ms. Bellin and her attorney, or whether Plaintiff's counsel is asking Ms. Bellin to confirm from first-hand knowledge that the blue text came from Ms. Bellin and her attorney. Here, Mr. Levicoff sought to object to the form of the question and clarify the potential confusion. In the context of the entire deposition, I do not see anything improper about Mr. Levicoff's conduct here. Certainly, there is nothing in his conduct that would warrant sanctions.

Plaintiff's counsel next argues that the following exchange at the deposition (pp. 111-112) warrants discovery sanctions against Defendant:

Q. Okay. So this – these edits eliminated this generally language; right?

A. It crossed out, yes.

Q. Yeah. And kind of clarified here saying the employer and employee agree that it shall include; correct?

Mr. Levicoff objected to the form of the question: he objected to Plaintiff's counsel's characterization of the edits as a clarification. Plaintiff's counsel responded that she was not intending to characterize but was seeking Ms. Bellin's opinion as to whether this particular edit “clarified” some aspect of the agreement.

After reviewing the entire deposition, it is clear to me that this exchange certainly does not warrant sanctions including a second deposition of Ms. Bellin. First, this exchange is not central to the lawsuit. Second, the question is problematic: What does “kind of clarified” mean? Clarified in part? Also, what in particular does the clarification refer to? Also, the question appears to be compound. It appears to ask Ms. Bellin both (1) whether the edit added the language “the employer and employee agree that it shall include,” and (2) whether it is Ms. Bellin's opinion that this edit “kind of clarified” some aspect of the clause in question.

*5 It seems to me that the question would have benefited from re-phrasing, and perhaps being broken down into separate questions.

Finally, Plaintiff argues that he was impeded from a fair examination of Ms. Bellin because Mr. Levicoff instructed Ms. Bellin not to answer two questions. Plaintiff's counsel asked whether “other lawsuits have been filed against Paragon by other employees.” Bellin Depo. p. 176. Mr. Levicoff objected to that question but stated that he would allow Ms. Bellin to answer whether any similar lawsuits had been filed. Id. p 177. Plaintiff's counsel declined to rephrase her question, but instead re-asked her original question. Id. p. 178. Although Mr. Levicoff tried to interpose an objection, Ms. Bellin answered anyway, saying “I don't know the answer to that.” Id. p. 178.

Plaintiff's counsel asks that I order Ms. Bellin to appear for a second deposition so that counsel may ask this question again. Plaintiff's counsel requests also that I attend the deposition and supervise the asking of this question. It seems to me, however, that such an exercise would be a waste of everyone's time (particularly considering that Ms. Bellin already answered the question), and would be a needless expenditure for the parties, particularly in a case like this where the claimed damages are relatively modest.

Near the end of the deposition, Plaintiff's counsel asked Ms. Bellin a series of questions about a PPP loan that Paragon received in April 2020. Ms. Bellin testified that the amount of the loan was over two million dollars. Ms. Bellin was then asked if Paragon received a PPP loan in 2021. She testified that, yes, Paragon received a PPP loan in 2021 as well. Bellin Depo p. 174. Plaintiff's counsel then asked if this second PPP loan also exceeded two million dollars. Mr. Levicoff objected and instructed Ms. Bellin not to answer. Id. pp. 173-174.

In his February 14, 2022 submission, Plaintiff now asks that I order Ms. Bellin to reappear for a deposition, and that I supervise the deposition, so that Ms. Bellin can answer the question regarding the amount of the PPP loan in 2021.

I am declining to make such an order or recommendation. I simply do not see how the answer to that question would advance, in any way, any claim or defense in this case. Plaintiff suggests that the answer to the question is relevant to the issue of whether Paragon can afford to pay an LTIP payment to Mr. Viancourt. But that is not an actual issue in this case. Paragon does not raise in its pleadings a defense of “inability to pay.” Moreover, even if Paragon did raise such a defense, it would be of no consequence. If Paragon is found in this lawsuit to have a contractual obligation to pay Plaintiff a Long-Term Incentive Payment of a particular amount, Paragon is not relieved of that obligation simply because it believes it cannot afford to pay it.

For all of these reasons, I respectfully recommend that the discovery relief requested by Plaintiff in his February 14, 2022 submission to me (and the October 6, 2021 letter to the Court) be denied.

2. Defendant

It appears to be Plaintiff's position in this case that Section 3.3 of the Employment Agreement is, or may be, ambiguous, and that that ambiguity can be resolved by parol evidence and by the parties’ course of performance. ECF No. 33, p. 4. Defendant, therefore, sought discovery as to that parol evidence and course of performance. Defendant Paragon's two discovery disputes come up in that context.

*6 The first concerns Plaintiff's claims of attorney-client privilege. At his deposition, Plaintiff testified that the draft Employment Agreement was drafted by a “combination of both” Plaintiff himself and Plaintiff's legal counsel. “Obviously, I [Plaintiff] provided input, Mr. Obrien [legal counsel] drafted the actual legal document.” Viancourt Depo. p. 160.

When defense counsel asked whether Plaintiff provided “anything to Mr. Obrien relating to the long-term incentive provisions in order for him to draft this,” Plaintiff's counsel objected and instructed Plaintiff not to answer.

After much colloquy between counsel for both parties, and after an off-the-record discussion between Plaintiff and his counsel, Plaintiff was eventually permitted to answer whether any part of the wording of Section 3.3 was created by Plaintiff himself, as contrasted with his attorney. Plaintiff's answer was: “I don't recall specifically.”

In light of Plaintiff's answer, it seems to me that the record is complete on this subject. There is no discovery relief to provide.

Defendant next argues that Plaintiff's document production is incomplete. At his deposition, Plaintiff testified that he believed he sent text messages to Elaine Bellin, CEO of Paragon Foods. Id. p. 32. Defendant requested that those text messages be produced. Plaintiff's counsel later responded that there were no text messages regarding the Long-Term Incentive Plan, that the only text messages from Plaintiff were “largely if not entirely non substantive,” and these were produced to Defendant. Finally, Plaintiff's counsel represented that “Plaintiff has not deleted any text messages relevant to this litigation.” October 11, 2021 Letter to the Court, p. 2.

Plaintiff also testified at his deposition that he made notes of two phone conversations with Elaine Bellin during their contract negotiations, but that he discarded them. Viancourt Depo. pp. 62-63.

In Defendant's submission to me, it seeks spoliation remedies for Plaintiff's destruction of telephone notes and Plaintiff's failure to provide substantive text messages.

I do not believe, however, that Defendant has established grounds for spoliation. Defendant has not made a colorable showing that Plaintiff is purposefully (or even negligently) withholding documents, or has purposely destroyed them. As Plaintiff notes in his submission to me “proof of actual suppression or withholding of evidence” is required to show spoliation. February 28, 2022 Submission, p. 3.

Such proof is lacking here, just as it was lacking in Plaintiff's request for spoliation remedies above.

For these reasons, I respectfully recommend that the discovery relief requested by Defendant Paragon in its October 6, letter to the Court be denied.

ECF 25 ¶¶ 45-51.