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

United States District Court, D. Vermont

August 4, 2015




Plaintiff One Source Environmental, LLC ("One Source") filed this action seeking, among other things, unpaid commissions it claims it was entitled to under a Manufacturer's Representative Agreement. Discovery in this case has been contentious and the discovery schedule has been modified or extended on multiple occasions. Most recently, the Court set July 15, 2015 as the final date by which all discovery must be completed. ECF No. 272. On June 30, 2015 Defendants moved to compel production of three things: 1) documents on which One Source's expert relied, 2) additional "breakdown" of One Source's products and services, and 3) information concerning J.J. Jimmo Development Company. ECF No. 289. For the reasons set forth below, Defendants' motion is granted in part and denied in part.

I. Relevant Background

A. The Balzer Report

Defendants recently moved to strike the report of One Source's expert regarding damages, Glen Balzer. ECF No. 287. The Court denied that motion. Mr. Balzer relied on many sources of information in forming his opinions on industry custom and practice, including his own library of more than 275 representative agreements. Id. at 3. In his report, Mr. Balzer states:

In my history of dealing with representative agreements, dating back to the 1970s, I remember dealing with no agreements that allowed a manufacturer to retain a portion of the manufacturers' representative's commissions for itself. I sampled my library of over 275 representative agreements and could find no example of an agreement whereby a manufacturer could trim the commissions it pays out by claiming that the manufacturer performed activity during the selling process.

ECF No. 268-3 at 16. The Defendants now seek to obtain the agreements in Mr. Balzer's professional library.

B. Discovery Regarding Defendant's Counterclaim

On October 9, 2014 the Court granted Defendants' motion to compel production of evidence related to Defendant M W U.S. Inc.'s counterclaims. See ECF No. 214 (the "October Order").[1] Specifically the Court ordered One Source to produce "information related to the sale and marketing of cleanroom products other than those manufactured by an M W entity, including volume, price, and profitability of sales, as well as any agreements with any other manufacturers." Id. at 15. In response to the October Order, One Source produced a one-page chart, which it further supplemented by breaking down the "Other" category to separate items related to the Defendants' projects. See ECF No. 271 at 13-14 (the "April Order"). The Court concluded that One Source's one-page chart and subsequent modified chart were "insufficient to enable Defendants to understand what products One Source sold during the period of the Agreement." Id. at 14. The Court therefore ordered that One Source "break down the OSE Products' and OSE Products/Services' in a way that enables the Defendants to understand what items are included in these categories and the price and volume of each sold." Id. In the alternative, the Court gave One Source the option to "provide source documents that enable Defendants to do so." Id. The Defendants claim that One Source has failed to comply with the Court's order.

C. J.J. Jimmo Development Company

One Source is a sole proprietorship operated by Jeffrey Jimmo. As far as the Court is aware, Mr. Jimmo has been deposed twice: once in the context of limited jurisdictional discovery earlier on the process and once again in March of 2015. Mr. Jimmo owns another company that is not a party to this suit named J.J. Jimmo Development Company ("JJ Jimmo"). On March 19, 2015 Mr. Jimmo testified about his other company's involvement in cleanroom construction. The Defendants now seek discovery related to JJ Jimmo.

II. Discussion

A. Representative Agreements Considered by Mr. Balzer

The Defendants move to compel production of the 275 manufacturer's representative agreements in Mr. Balzer's professional library. Defendants claim they are entitled to the agreements pursuant to Federal Rule of Civil Procedure 26, which requires an expert witness's report to contain "a complete statement of all opinions the witness will express and the basis and reasons for them" as well as "the facts or data considered by the witness in forming them." Fed.R.Civ.P. 26(a)(2)(B). The Advisory Committee's note to the 2010 amendment to Rule 26 explains that the rule was amended from "data or other information" as proscribed in 1993 to "facts or data considered" in 2010. The amendment was intended "to ...

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