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One Source Environmental, LLC v. M Zander, Inc.

United States District Court, D. Vermont

October 9, 2014

ONE SOURCE ENVIRONMENTAL, LLC, Plaintiff,
v.
M W ZANDER, INC., M W U.S, INC., M W GROUP GMBH, M W PRODUCTS GMBH, and TOTAL FACILITY SOLUTIONS, INC. Defendants.

OPINION AND ORDER

WILLIAM K. SESSIONS, III, District Judge.

Plaintiff One Source Environmental, LLC ("One Source") filed this action seeking unpaid commissions it claims it was entitled to under a January 16, 2004 Manufacturer's Representative Agreement ("Agreement"). Plaintiff has also brought claims for tortious interference with contract, tortious interference with prospective business relations, and punitive damages. Defendants have raised several defenses and Defendant M W U.S., Inc. ("M W U.S.") has filed counterclaims.

Discovery negotiations between the parties have reached an impasse. Both Plaintiff and Defendants have filed discovery motions that are presently before the Court. For the reasons stated below, the Court holds as follows: 1) Plaintiff's Motion for a Protective Order, ECF No. 190, is denied and Defendants' Motion to Compel Mr. Jeffrey Jimmo's Deposition, ECF No. 199, is granted, 2) Plaintiff's Motion to Compel, ECF No. 191, is granted in part and denied in part and Defendants' Motion for Protective Orders, ECF No. 201, is granted in part and denied in part, 3) Defendants' Motion to Compel Documents, ECF No. 201, is granted, and 4) Defendants' Motion to Quash and for Protective Orders Concerning Plaintiff's Recently Noticed Depositions, ECF No. 203, is granted in part and denied in part.

I. Second Deposition of Jeffrey Jimmo

On June 12, 2013 the Court ordered the parties to conduct limited discovery into jurisdictional issues. All non-jurisdictional discovery was stayed. During this period, Defendants deposed Jeffrey Jimmo, founder and principal of One Source. Plaintiff subsequently moved for a protective order to prevent Defendants from deposing Mr. Jimmo for a second time. Defendants moved to compel Mr. Jimmo's deposition.

The court may issue a protective order to prevent a person from experiencing annoyance, embarrassment, oppression, or undue burden or expense. Fed.R.Civ.P. 26(c)(1). The party seeking the protective order has the burden to prove that good cause exists for issuance of the order. Brown v. Astoria Fed. Sav. & Loan Ass'n, 444 F.Appx. 504, 505 (2d Cir. 2011) (quoting Gambale v. Deutsche Bank AG, 377 F.3d 122, 142 (2d Cir. 2004)).

Plaintiff argues that Defendants went far beyond the limited discovery ordered by the Court and fully covered the merits of Plaintiff's claims in their first deposition of Mr. Jimmo. Defendants argue that substantive issues were necessarily intertwined with jurisdictional issues and that the Court should enforce the terms of the joint discovery stipulation that expressly reserved their right to take a complete deposition on all non-duplicative topics.

The Court finds that Defendants covered the following topics related to the merits of Plaintiff's claims:

• Mr. Jimmo's ownership interest in other entities
• Mr. Jimmo's educational and professional background
• One Source's current employees and organization
• Mr. Jimmo's awareness of what products and components M W manufactured at various points in time
• Contact with M W before the 2003 Agreement
• Negotiation of both the 2003 and 2004 Agreements, including differences between the two, payment and calculation of commissions, modification or lack thereof
• A potential project and trip to Maine
• Mr. Jimmo's understanding of products versus components
• Specific contract language in the 2003 and 2004 Agreements, Mr. Jimmo's interpretation of that language and its relationship to commission calculation
• Negotiation of each of the five IBM chamber projects, agreements regarding compensation and costs, project components, negotiation and payment of commission, project proposals and purchase orders
• Mr. Jimmo's general and ongoing interpretations of the 2003 and 2004 Agreements
• The Whiting Turner project/IBM Annex Phase 2 project and its negotiation, execution, and calculation of commission
• Entitlement to commission for services or sales in the territory not secured by Mr. Jimmo or in which One Source had no involvement
• The Phase 3 SUNY Albany NanoFab project negotiation and commission calculation
• The contents and Mr. Jimmo's interpretation of the demand letter, first Complaint, the total amount of damages, and M W U.S.'s interrogatories
• Emails and conversations regarding Markus Huegle's visit to IBM, Mr. Jimmo's reaction, and reference to the Agreement
• The Global Foundries project, Mr. Jimmo's request for and calculation of payment, and its relationship to Mr. Jimmo's ...

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