Standard Nutrition Company v. Smith ( 2023 )

8:22-cv-00046-JFB-MDN Doc # 50 Filed: 03/30/23 Page 1 of 33 - Page ID # 161 Moving Party: STANDARD NUTRITION COMPANY and AC BLUEBONNET, LP STANDARD NUTRITION COMPANY and AC BLUEBONNET, LP v. WILLIAM L. SMITH Case No. 8:22-cv-00046-JFB-MDN To assist the Court in more efficiently addressing the parties’ discovery dispute(s), the parties shall meet and confer, and jointly complete the following chart. The purpose of this chart is to succinctly state each party’s position and the last compromise offered when the parties met and conferred. The fully completed chart shall be e-mailed to chambers of the assigned magistrate judge. The moving party is: STANDARD NUTRITION COMPANY and AC BLUEBONNET, LP (“Plaintiffs”) The responding party is: WILLIAM L. SMITH (“Smith”) Note: If discovery from both parties is at issue, provide a separate sheet for each moving party. Moving Party’s Last Responding Party’s Discovery Request Relevant to prove... Moving Party’s Responding Party’s Court’s Ruling Offered Last Offered at Issue Initial Position Initial Position Compromise Compromise Plaintiffs’ Request for Plaintiffs contend In August 2022, Plaintiffs’ Request for After a meet and Plaintiffs’ revised Production No. 5: that Request for Plaintiffs’ counsel Production No. 5 is confer discussion, Request for Defendant shall Production No. 5 is issued a letter to overly broad and not Plaintiffs’ counsel Production No. 5 is produce documents “Please produce all relevant to its claims Smith’s counsel relevant to the limited the scope of still overly broad and responsive to the documents, that Smith requesting subject matter of this Request No. 5 so not relevant to the Plaintiffs’ Last correspondence, and misappropriated supplementation of action nor that it read as subject matter of this Offered ESI that you sent to Plaintiffs’ trade his response to proportional to the follows: action nor Compromise, and or received from secrets, tortiously Request for needs of the case. proportional to the limited to Plaintiffs’ Suther, or any of interfered with Production No. 5 The Request is not “Please produce all needs of the case. specifically Suther’s employees, business because, in part, the limited to an documents, Plaintiffs failed to identifiable trade representatives, or relationships with Amended Complaint appropriate correspondence, and limit the revised secrets, for the time agents from April customers, and that alleges claims for timeframe as it ESI that you sent to Request to an frame of April 2020 2020 to present, that Smith breached his misappropriating (by requests information or received from appropriate though May 31, relate to individuals duty of loyalty to delivering to Suther) beyond Defendant’s Suther, or any of timeframe as it still 2022. or companies that Plaintiffs by the exact information separation from Suther’s employees, requests information purchased nutritional transmitting described in Request employment and he representatives, or beyond Defendant’s confidential, trade for Production No. 5. has no post- agents from April separation from 1 4878-5592-4056.2 8:22-cv-00046-JFB-MDN Doc # 50 Filed: 03/30/23 Page 2 of 33 - Page ID # 162 Moving Party: STANDARD NUTRITION COMPANY and AC BLUEBONNET, LP supplements from secret information to Such employment 2020 to present, that employment and he Bluebonnet.” Suther Feeds, Inc. communications are restrictive covenants. relate to the has no post- (“Suther”), a relevant to the claims Additionally, the operations of 1256 employment competitor of asserted against Request is not Cattle Company, restrictive covenants. Plaintiffs and Smith’s Smith; for example, limited to an Ben Linn, Box Elder Additionally, the current employer, the product appropriate subject Ranch, Krause Request is not while employed with formulations that he matter that would Cattle Co., Triple H, limited to an Plaintiffs. provided to Suther have relevancy to Inc., Witt Enterprises appropriate subject prior to his Plaintiffs’ claims in Inc., Y6 Feeders, or matter that would resignation from this matter as it Zochol Feedlot LLC, have relevancy to Plaintiffs are trade broadly requests all and specifically such Plaintiffs’ claims in secrets that Smith information “that operations’ this lawsuit as had access to in his relate to individuals personnel, logistic Defendant has no role as a nutritional or companies that and product delivery post-employment consultant, and that purchased nutritional information, restrictions and is not he improperly supplements from geography prohibited from communicated Bluebonnet”. It information, pest competing with and/or used such contains no concerns, type of Plaintiffs after his information to limitations to such livestock, or employment. tortiously interfere information, failing to Bluebonnet’s product with Plaintiffs’ even be limited to inputs, formulas, or Moreover, in relationships with those customers prices provided to response to customers. Smith’s serviced by such operations.” Plaintiffs’ Request for communications with Defendant. Production No. 3, Suther about such Smith’s Defendant produced matters are relevant communications with documents for the and discoverable. Suther about such relevant time period matters are relevant during Defendant’s and discoverable. employment with Plaintiffs that would be responsive to the Request at issue if it were properly limited to a relevant timeframe. 2 4878-5592-4056.2 for Plaintiffs: /s/ Keith W. Catt for Defendant: /s/ Ruth Horvatich March 28, 2023. DATED: March 30, 2023. BY THE COURT: United States Magistrate Judge KOLEY JESSEN P.C., PHONE oO FAX March 28, 2023 VIA EMAIL Magistrate Judge Michael D. Nelson nelson@ned.uscourts.gov Stephanie M. Nevins, Law Clerk stephanie_nevins @ned.uscourts.gov Re: Standard Nutrition Co. and AC Bluebonnet, LP v. William L. Smith; Case No. 8:22-cv-00046 Our File No. 25346-0000 Your Honor: This letter sets forth Plaintiffs Standard Nutrition Company and AC Bluebonnet, LP’s (collectively, “Plaintiffs”) position regarding the dispute presented by Request for Production No. 5 served on Defendant William L. Smith (“Defendant”). Defendant has failed to adequately respond to Bluebonnet’s Request for Production (“RFP”) No. 5, and despite counsel’s diligent efforts, no resolution to this issue has been had. Plaintiffs’ RFP No. 5 Plaintiffs have alleged claims against Defendant in this case for tortious interference with Plaintiffs’ business relationships, breach of duty of loyalty, misappropriation of Plaintiffs’ trade secrets, and violation of the Defend Trade Secrets Act of 2016, respectively. See Amended Complaint, ECF No. 12. Plaintiffs have alleged that Defendant worked to transfer Plaintiffs’ customers and communicated Plaintiffs’ trade secrets to Defendant’s new employer, Suther Feeds, Inc. (“Suther”), both prior to and after resigning from employment with Plaintiffs. Therefore, Plaintiffs consider the communications Defendant had with Suther related to Plaintiffs’ business clearly relevant to Plaintiffs’ claims. RFP No. 5 requested that Defendant “‘[p]lease produce all documents, correspondence, and ESI that you sent to or received from Suther, or any of Suther’s employees, representatives, or agents from April 2020 to present, that relate to individuals or companies that purchased nutritional supplements from Bluebonnet.” See Exhibit 1, p. 3. On August 5, 2022, Defendant served an objection to RFP No. 5 and asserted that RFP No. 5 was vague, ambiguous, overly broad, unduly burdensome, irrelevant, and disproportionate to the needs of the case. On August 26, 2022, counsel issued a deficiency letter outlining the relevance of the records sought pursuant to RFP No. 5 and requested that Defendant supplement his response and withdraw his objections to RFP No. 5. Defendant did not comply with the requests, and instead alleged an additional objection, namely that Plaintiffs’ should look to Defendant’s new employer, Suther, for the documents requested. Plaintiffs responded to this supplemental response by, again, requesting in writing that Defendant supplement his answer and withdraw his objections to RFP No. 5. Specifically, Defendant’s additional objections were unsupportable because he also possessed and controlled his email communications, made from his personal email account, and speculation that Suther may possess the same does not absolve Defendant of his discovery obligations. See Devon Robotics v. DeViedma, No. 09-CV-3552, 2010 WL 3985877, at *2 (E.D. Pa. Oct. 8, 2010) (“There are thus two circumstances under which a defendant can be required to turn over documents owned by a third party: when the defendant has actual (physical) possession PATRICE | DIRECT. 402.3: PATRICE OTT@KOI EV JESSE of the documents, and when the defendant has “control” over documents in the physical possession of another.”) The parties continued to work through and resolve other discovery disputes, but RFP No. 5 remains in contention. In an effort to compromise, and in response to concerns raised during a meet-and-confer call, Plaintiffs agreed to narrow the scope of RFP No. 5 to name specific customers and the specific information that, if contained in Defendant’s communications to Suther, would make such communications responsive to RFP No. 5. Consequently, on February 21, 2023, Plaintiffs’ proposed a narrowed version of RFP No. 5 requesting that Defendant “Please produce all documents, correspondence, and ESI that you sent to or received from Suther, or any of Suther’s employees, representatives, or agents from April 2020 to present, that relate to the operations of 1256 Cattle Company, Ben Linn, Box Elder Ranch, Krause Cattle Co., Triple H., Inc. Witt Enterprises Inc., Y6 Feeders, or Zochol Feedlot LL, and specifically such operations’ personnel, logistic and product delivery information, geography information, pest concerns, type of livestock, or Bluebonnet’s product inputs, formulas, or prices provided to such operations.” Despite Plaintiffs’ effort to compromise, Defendant has maintained his objections to RFP No. 5, including the narrowed, compromised version. It is difficult to conceive of documents more relevant to Plaintiffs’ claims than communications between Defendant and Suther regarding Plaintiffs’ customers and the information Plaintiffs assert is protected as trade secrets. Defendant’s objections to RFP No. 5 are unsupportable and Defendant has an obligation to produce, at least, those documents responsive to the narrowed version of RFP No. 5. See Nat. Dynamics, LLC v. Calm Nat. Ltd., No. A-14-CV-1060-LY-ML, 2016 WL 11584909, at *3 (W.D. Tex. Oct. 14, 2016), report and recommendation adopted, No. A-14-CV-01060-LY, 2016 WL 11585184 (W.D. Tex. Nov. 1, 2016) (Granting plaintiff’s motion to compel communications between the defendant and a third party that received and communicated the plaintiff’s proprietary information to the defendant.) We look forward to discussing these matters so that we can quickly resolve these disputes and advance this lawsuit. Should the Court have additional questions or wish to see additional documents, please let us know. Respectfully, Patrice D. Ott Patrice D. Ott cc: Margaret C. Hershiser Keith W. Catt IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEBRASKA STANDARD NUTRITION COMPANY, a Nebraska corporation, and AC Case No. 8:22-cv-0046-JFB-MDN BLUEBONNET, LP, a Texas limited partnership, Plaintiffs, PLAINTIFFS’ FIRST SET OF REQUESTS vs. FOR PRODUCTION OF DOCUMENTS TO DEFENDANT WILLIAM L. SMITH WILLIAM L. SMITH, an individual, Defendant. Pursuant to the Federal Rules of Civil Procedure, you are hereby requested to produce for inspection and copying within thirty (30) days after service of these Requests, at the offices of Koley Jessen P.C., L.L.O., One Pacific Place, Suite 800, 1125 South 103 Street, Omaha, Nebraska 68124, and all original documents requested herein to be produced or legible copies of the same. You must serve a written response within thirty (30) days after the service of these Requests, and you must state, with respect to each item or category, that inspection and related activities will be permitted as requested, unless the Request is objected to, in which event the reasons for objection shall be stated. If objection is made to part of an item or category, the part shall be specified. You must produce electronically stored information (“ESI”) in the following form: in Native File format. Native files will be produced in a load file format with extracted text and links to corresponding native files. A party at its option may additionally produce TIFF images. ESI shall be produced with document-level searchable extracted text in the form of .txt files associated by links contained within the load file. For ESI that is redacted for attorney-client privilege or attorney work product, a new text file created using OCR shall be produced in lieu of extracted text, and the associated load file shall contain a link to the TIFF image file containing the redactions, rather than the native file. For emails with attachments and other container files such as .ZIP files, the metadata load file will contain “begin-attachment” and “end-attachment” values representing the low and the high consecutive numbers representing the names of the files in that attachment range or container file. For container or archive files (bak, zip, jar, rar, gzip, tar, etc.), all contents should be extracted from the archive with source pathing and attachment-range relationships maintained and captured. The archive container file does not need to be included in the production. Documents containing privileged materials may be produced in TIFF format with redactions. If either an email or an attachment is fully withheld on account of privilege, to avoid the loss of context due to an “orphaned” email or attachment” the entire message-attachment shall still be produced with the withheld document slip-sheeted with a TIFF image. The minimum content of the load file is attached hereto as Schedule A Production Fields. The parties may meet and confer, if necessary, to agree on more detail for load file specifications and ESI protocols. In this regard, Plaintiffs are willing to negotiate ESI protocols to ensure effective and efficient discovery. REQUESTS FOR PRODUCTION OF DOCUMENTS REQUEST NO. 1. Please produce all tangible reports, physical models, compilations of data, inspections, texts, or other material prepared by and/or for any individual retained and/or expected to provide expert testimony at the trial of this lawsuit. RESPONSE: REQUEST NO. 2. Please produce all documents, correspondence, and ESI that you have sent to or received from AC Bluebonnet, LP (“Bluebonnet”) pertaining to the allegations in Plaintiffs’ Amended Complaint. RESPONSE: REQUEST NO. 3. Please produce all documents, correspondence, and ESI that you sent to or received from Suther Feeds, Inc. (“Suther”), or any of Suther’s employees, representatives, or agents between April 2020 and your first day as an employee of Suther. RESPONSE: REQUEST NO. 4. Please produce all documents, correspondence, and ESI that you sent to or received from Suther, or any of Suther’s employees, representatives, or agents between 2020 and your first day as an employee of Suther that relate to Plaintiffs, including its employees, products, systems, pricing, vendors, logistics, customers, or any other business information concerning Plaintiffs. RESPONSE: REQUEST NO. 5. Please produce all documents, correspondence, and ESI that you sent to or received from Suther, or any of Suther’s employees, representatives, or agents from April 2020 to present, that relate to individuals or companies that purchased nutritional supplements from Bluebonnet. RESPONSE: REQUEST NO. 6. Please produce all documents, correspondence, and ESI that you sent to or received from Suther, or any of Suther’s employees, representatives, or agents from April 2020 to present that relate to Plaintiffs, including its employees, products, systems, pricing, vendors, logistics, customers, or any other business information concerning Plaintiffs. RESPONSE: REQUEST NO. 7. Please produce all documents, correspondence, and ESI reflecting any employment agreement entered into between you and Suther. RESPONSE: REQUEST NO. 8. Please produce all purchase orders, invoices, bills of lading, billing statements, or other similar document you sent to or received from Suther reflecting any sale of Suther products to individuals or companies that purchased nutritional supplements from Bluebonnet. RESPONSE: REQUEST NO. 9. Please produce all purchase orders, invoices, bills of lading, billing statements, or other similar document you sent to or received from any third party reflecting any sale of Suther products to individuals or companies that purchased nutritional supplements from Bluebonnet. RESPONSE: REQUEST NO. 10. Please produce all documents, correspondence, and ESI that you sent to or received from any employee, or former employee, of Bluebonnet since your first day of employment with Suther related to any Bluebonnet product, pricing, nutritional information, marketing, or other business information of Bluebonnet. RESPONSE: REQUEST NO. 11. Please produce all documents, correspondence, and ESI that you sent to or received from any employee, or former employee, of Bluebonnet since your first day of employment with Suther related to any Bluebonnet customer. RESPONSE: REQUEST NO. 12. Please produce all documents, correspondence, and ESI that you have sent to or received from customers on behalf of Suther since November 1, 2021, to present. RESPONSE: REQUEST NO. 13. Please produce all documents, correspondence, and ESI reflecting your job title, description, or duties with Suther. RESPONSE: REQUEST NO. 14. Please produce all documents, correspondence, and ESI that you relied upon in asserting that you had pre-existing business relationships with the beef cattle producers Plaintiffs’ solicit and sell products to prior to your employment with Plaintiffs, as alleged in paragraph 17 of your Answer to Plaintiffs’ Amended Complaint. RESPONSE: REQUEST NO. 15. Please produce all documents, correspondence, and ESI that you relied upon in denying the allegations in paragraph 25 of the Amended Complaint. RESPONSE: REQUEST NO. 16. Please produce all documents, correspondence, and ESI that you relied upon in denying the allegations that “Smith had considerable and regular contact with Plaintiffs’ customers and gained intimate knowledge of their product formulation needs, pricing, and other customer-specific information. In carrying out his duties for Plaintiffs, Smith utilized Plaintiffs’ product formulations, pricing, marketing strategies, and distribution information…Smith was charged with working with beef producer customers to create and produce the necessary livestock-specific product formulations. Smith developed and maintained relationships with Plaintiffs’ customers and potential customers,” as set forth in paragraph 26 of the Amended Complaint. RESPONSE: REQUEST NO. 17. Please produce all documents, correspondence, and ESI that you relied upon in denying the allegations set forth in paragraph 37 of the Amended Complaint. RESPONSE: REQUEST NO. 18. Please produce all documents, correspondence, and ESI in your possession that reflects Plaintiffs’ product formulations, pricing, marketing strategies, and distribution information. REQUEST NO. 19. Please produce all documents, correspondence, and ESI that you have sent to or received from Mr. Brian Reed related to the allegations contained in Plaintiffs’ Amended Complaint since January 2021. RESPONSE: REQUEST NO. 20. Please produce all documents, correspondence, and ESI that you have sent to or received from Mr. Patrick Egan related to the allegations contained in Plaintiffs’ Amended Complaint since January 2021. RESPONSE: Dated: May 31, 2022. STANDARD NUTRITION COMPANY and AC BLUEBONNET, LP, Plaintiffs, By: s/ Patrice D. Ott Margaret C. Hershiser, #19545 Patrice D. Ott, #24435 Keith W. Catt, #27306 KOLEY JESSEN P.C., L.L.O. One Pacific Place, Suite 800 1125 South 103rd Street Omaha, NE 68124-1079 (402)390-9500 (402)390-9005 (facsimile) Margaret.Hershiser@koleyjessen.com Patrice.ott@koleyjessen.com Keith.Catt@koleyjessen.com Attorneys for Plaintiffs CERTIFICATE OF SERVICE I hereby certify that on May 31, 2022, I served the foregoing via email to the following counsel of record: Aaron A. Clark, #20045 Cody E. Brookhouser-Sisney, #25872 McGrath North Mullin & Kratz, PC LLO First National Tower, Suite 3700 1601 Dodge Street Omaha, NE 68102 aclark@mcgrathnorth.com cbrookhouser@mcgrathnorth.com Attorneys for Defendant. s/ Patrice D. Ott Patrice D. Ott SCHEDULE A Production Fields For the types of documents described above, the following are the production fields for email ESI files, non-email ESI files and paper documents, as applicable. Field Name Description (E-Mail) Description (Non-E-mail) Author The person(s) who created, N/A wrote, reviewed, signed, or approved the document. The Author should be extracted from the metadata of the e-doc. It will NOT be manually coded for paper documents. BCC All information contained in N/A the “BCC” field of the e- mail, as well as all other discernable blind copies. BegAttch Number endorsed on first Number endorsed on first page of first document in a page of first document in a family (i.e., documents and family (i.e., documents and all attachments thereto). all attachments thereto). CC All information contained in N/A the “CC” field of the e-mail, as well as all other discernable copies. Confidentiality The confidential designation The confidential designation endorsed on the document. endorsed on the document. If If no designation is present, no designation is present, a a default value of “None” default value of “None” will will be coded. be coded. Custodians The individual (or if no The individual (or if no individual the computer individual the computer source) in whose possession source) in whose possession the ESI was collected. the ESI was collected. Field Name Description (E-Mail) Description (Non-E-mail) ModDateTime Date N/A Date the document was last modified. (MM/DD/YYYY). EmailSent Date the E-mail was sent, N/A expressed in MM/DD/YYYY format. Subject/Title If available, verbatim subject or re: line, or discernable document title appearing on a document, or, as extracted from the metadata of a native file if present. DocumentType Describes the type of Describes the type of document (e.g., Lotus Notes document (e.g., Microsoft E-mail). Word Document). EmailSubject Verbatim subject or re: line, as extracted from the e-mail. EndAttch Number endorsed on last Number endorsed on last page of last document in a page of last document in a family (i.e., documents and family (i.e., documents and all attachments thereto). all attachments thereto). FileExtension Displays the extension of the Displays the extension of the file (msg, eml). file (doc, xlsx). FileName Original file name, Original file name, including including file extension file extension (Example.XLS, (Example.MSG). or Example.DOC). EmailAuthor All information contained in N/A the “From” field of the e- mail. MD5Hash The MD5 or SHA Hash The MD5 or SHA Hash signature as calculated by signature as calculated by the the litigation support litigation support processing processing software. software. Native File If files produced in native If files produced in native path to file (e.g. path to file (e.g. NATIVE\samplefile.xls), Attachments\samplefile.xls)), and an active hyperlink and an active hyperlink should be included in the should be included in the data Field Name Description (E-Mail) Description (Non-E-mail) data load files for use in load files for use in document document review databases. review databases. PGCount Total number of pages in Total number of pages in document. document. ProdBeg Bates Range Start Bates Range Start ProdEnd Bates Range End Bates Range End HasRedaction A logical value indicating A logical value indicating that the document contains that the document contains redactions redactions IntFilepath Original location of where the ESI was stored in the normal course of business Recipients All information contained in N/A the “To” field of the e-mail. Text File Ruth Horvatich McG rath North P: 402.633.1521 | F: 402.952.1521 RHorvatich@megrathnorth.com ATTORNEYS March 28, 2023 VIA E-MAIL - nelson@ned.uscourts.gov Honorable Michael D. Nelson United States Magistrate Judge United States District Court for the District of Nebraska Re: Standard Nutrition Company et al. v. William Smith Case No. 8:22-cv-00046-JFB-MDN Dear Judge Nelson: This letter will serve as Defendant, William Smith’s position on the discovery dispute to be heard via telephone conference set for March 30, 2023, at 11:00 AM. As background, Plaintiffs, Standard Nutrition Company ("Standard Nutrition") and AC Bluebonnet LP ("AC Bluebonnet") (collectively the "Plaintiffs") have brought this action against Defendant William Smith (“Defendant” or “Smith”) alleging claims for tortious interference with business and contractual relations, breach of duty of loyalty, and misappropriation of trade secrets under state and federal law. Plaintiffs specifically allege that Smith breached his duty of loyalty during his employment with Plaintiffs based on the fact that he went to work for a competitor, Suther Feeds, Inc. (“Suther”), after he resigned from his employment, which forms the basis of their tortious interference claim and misappropriation of trade secrets claim. As explained below, Plaintiff's discovery request at issue, Request for Production No. 5, is overly broad and not relevant to the subject matter of this action. The discovery request at issue before the Court is Plaintiffs’ Request for Production No. 5, which requests the following: REQUEST NO. 5: Please produce all documents, correspondence, and ESI that you sent to or received from Suther, or any of Suther’s employees, representatives, or agents from April 2020 to present, that relate to individuals or companies that purchases nutritional supplements from Bluebonnet. Smith objected to this request on several bases, including that the request is overly broad and is not relevant to the subject matter of this action nor proportional to the needs of the case. The parties met and conferred with respect to this request and Smith’s objections. As a result of the meet and confer, Plaintiffs revised their Request No. 5 to the following: REQUEST NO. 5: Please produce all documents, correspondence, and ESI that you sent to or received from Suther, or any of Suther’s employees, representatives, or agents from April 2020 to present, that relate to the operations of 1256 Cattle Company, Ben Linn, Box Elder Ranch, Krause Cattle Co., Triple H, Inc., Witt Enterprises Inc., Y6 Feeders, or Zochol Feedlot LLC, and specifically such operations’ personnel, logistic and product delivery information, geography information, pest concerns, type of livestock, or Bluebonnet’s product inputs, formulas, or prices provided to such operations. North Mullin & Kratz, PC LLO | First National Tower, Suite 3700 | 1601 Dodge St. | Omaha, NE 68102 | www.mcgrathnorth.com | 402.341.3070 Honorable Michael D. Nelson March 28, 2023 Page 2 Even with the revised limitations to this Request, however, Plaintiffs’ request is still overly broad and not relevant to the subject matter of this action nor proportional to the needs of the case. The central issue with Plaintiffs’ Request No. 5 is that it is not limited to a relevant timeframe. Specifically, it requests documents after Smith separated from employment with Plaintiffs. It is undisputed in this matter that Smith does not have any post-employment restrictive covenants." It is well-established under Nebraska law that an employee without a restrictive covenant may properly compete with their former employer after termination of the employment relationship. West Plains, L.L.C. v. Retzlaff Grain Co. Inc., 927 F. Supp. 2d 776, 785 (D. Neb. 2013) (“After the termination of his agency, in the absence of a restrictive agreement, the agent can properly compete with his principal as to matters for which he as been employed.”) (quoting Prof/ Bus. Services Co. v. Rosno, 680 N.W.2d 176, 189 (Neb. 2004)). Accordingly, Smith was free to compete and service his customers with his new employer, Suther, and discovery of general communications after his employment is inappropriate and not relevant to the matter. As the relevancy of Plaintiffs’ claims is limited to actions during his employment, requesting such documentation after his employment is not relevant to Plaintiffs’ claims. Moreover, the Request is overly broad as it requests documentation far beyond documentation relevant to Plaintiffs’ claims of tortious interference and misappropriation of trade secrets. It is not narrowly tailored to requesting documentation allegedly including Plaintiffs’ alleged trade secrets and does not request documentation narrowly tailored to Plaintiffs’ tortious interference claim. Rather, the Request is overly broad in that it is requesting general business communications regarding ordinary competition that are not relevant to the claims in the lawsuit or the issues at hand and not proportional to the needs of the case. Indeed, when analyzing a claim for tortious interference with a business relationship, Nebraska courts have recognized the privilege of a competitor as provided under the Restatement of Torts. Dick v. Koski Professional Group, P.C., 950 N.W.2d 321, 378 (Neb. 2020). The Nebraska Supreme Court has stated that valid competition, “including inducement of third persons to do their business with oneself rather than a particular competitor," cannot serve as the basis for a tortious interference claim because such conduct is justified. □□□□ As Plaintiffs’ request is not narrowly tailored to request documents beyond valid competition in this matter, it is overly broad and not relevant to the subject matter of this action. Furthermore, in response to a different request from Plaintiffs, Request for Production No. 3, Smith has already produced the requested documents during the relevant timeframe of April 2020 to the last day of his employment with Plaintiffs, consistent with appropriate discovery relating to Plaintiffs’ claims in this action. Accordingly, Smith submits that Plaintiffs’ Request for Production No. 5, even as revised, is overly broad and not relevant to the subject matter of this action. Respectfully submitted, Ruth A. Horvatich Cc: — Aaron Clark | Plaintiffs do not allege breach of any contract in their action and have been unable to produce any restrictive covenant agreement to which Smith is a party. Additionally, Smith denies ever agreeing to any such agreement. IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEBRASKA STANDARD NUTRITION COMPANY, ) CASE NO. 8:22-CV-46 a Nebraska corporation, and AC ) BLUEBONNET LP, a Texas limited, ) partnership, ) ) Plaintiffs, ) DEFENDANT'S RESPONSES TO ) PLAINTIFFS' FIRST SET OF vs. ) REQUESTS FOR PRODUCTION ) OF DOCUMENTS WILLIAM SMITH, an individual, ) ) Defendant. ) Defendant, William Smith ("Defendant") hereby responds to Plaintiffs' First Set of Requests for Production of Documents as follows: REQUEST NO. 1: Please produce all tangible reports, physical models, compilations or data, inspections, texts, or other material prepared by and/or for any individual retained and/or expected to provide expert testimony at the trial of this lawsuit. RESPONSE: Defendant submits that no experts have been retained in this matter, and Defendant will timely supplement this response in accordance with the scheduling order of this Court. REQUEST NO. 2: Please produce all documents, correspondence, and ESI that you have sent to or received from AC Bluebonnet, LP ("Bluebonnet") pertaining to the allegations in Plaintiffs' Amended Complaint. RESPONSE: Defendant objects to this Request to the extent that it is vague and ambiguous with regard to the information being sought. Further objecting, Defendant submits that such information is in the possession, custody or control of Plaintiffs and is therefore equally available to Plaintiffs. Subject to and without waiving these objections, see WWS0001. REQUEST NO. 3: Please produce all documents, correspondence, and ESI that you sent to or received from Suther Feeds, Inc. ("Suther"), or any of Suther's employees, representatives, or agents between April 2020 and your first date as an employee of Suther. RESPONSE: Defendant objects to this Request to the extent that it is overly broad and unduly burdensome as well as to the extent that it seeks information that is not relevant to the subject matter of this action nor proportional to the needs of the case. Subject to and without waiving these objections, see WWS0002. REQUEST NO. 4: Please produce all documents, correspondence, and ESI that you sent to or received from Suther, or any of Suther's employees, representatives, or agents between 2020 and your first day as an employee of Suther that relate to Plaintiffs, including its employees, products, systems, pricing, vendors, logistics, customers, or any other business information concerning Plaintiffs. RESPONSE: Defendant objects to this Request to the extent that it is vague and ambiguous as to the information being requested due to the phrases “relate to” and “concerning Plaintiffs.” Defendant further objects to this Request to the extent that it is overly broad and unduly burdensome as well as to the extent that it is not relevant to the subject matter of this action nor proportional to the needs of the case. REQUEST NO. 5: Please produce all documents, correspondence, and ESI that you sent to or received from Suther, or any of Suther's employees, representatives, or agents from April 2020 to present, that relate to individuals or companies that purchased nutritional supplements from Bluebonnet. RESPONSE: Defendant objects to this Request to the extent that it is vague and ambiguous as to the information being requested due to the phrase “relate to.” Defendant further objects to this Request to the extent that it is overly broad and unduly burdensome as well as to the extent that it is not relevant to the subject matter of this action nor proportional to the needs of the case. REQUEST NO. 6: Please produce all documents, correspondence, and ESI that you sent to or received from Suther, or any of Suther's employees, representatives, or agents from April 2020 to present that relate to Plaintiffs, including its employees, products, systems, pricing, vendors, logistics, customers, or any other business information concerning Plaintiffs. RESPONSE: Defendant objects to this Request to the extent that it is vague and ambiguous as to the information being requested due to the phrases “relate to” and “concerning Plaintiffs.” Defendant further objects to this Request to the extent that it is overly broad and unduly burdensome as well as to the extent that it is not relevant to the subject matter of this action nor proportional to the needs of the case. REQUEST NO. 7: Please produce all documents, correspondence, and ESI reflecting any employment agreement entered into between you and Suther. RESPONSE: Defendant submits there is no documentation responsive to this Request. REQUEST NO. 8: Please produce all purchase orders, invoices, bills of lading, billing statements, or other similar document you sent to or received from Suther reflecting any sale of Suther products to individuals or companies that purchased nutritional supplements from Bluebonnet. RESPONSE: Defendant objects to this Request to the extent that such information is overly broad, unduly burdensome, not relevant to the subject matter of this action nor proportional to the needs of the case. Further objecting, Defendant submits that such information is in the possession, custody or control of Suther and, therefore, such information may be more properly obtained from Suther. REQUEST NO. 9: Please produce all purchase orders, invoices, bills of lading, billing statements, or other similar document you sent to or received from any third party reflecting any sale of Suther products to individuals or companies that purchased nutritional supplements from Bluebonnet. RESPONSE: Defendant objects to this Request on the grounds that it is vague and ambiguous as to the information being requested. Defendant further objects to this Request to the extent that such information is overly broad, unduly burdensome, not relevant to the subject matter of this action nor proportional to the needs of the case. Further objecting, Defendant submits that such information is in the possession, custody or control of Suther and, therefore, such information may be more properly obtained from Suther. REQUEST NO. 10: Please produce all documents, correspondence, and ESI that you sent to or received from any employee, or former employee, of Bluebonnet since your first day of employment with Suther related to any Bluebonnet product, pricing, nutritional information, marketing, or other business information of Bluebonnet. RESPONSE: Defendant objects to this Request to the extent that it is vague and ambiguous as to the information being requested due to the phrase “related to.” Defendant further objects to this Request to the extent that it is overly broad and unduly burdensome as well as to the extent that it is not relevant to the subject matter of this action nor proportional to the needs of the case. Further objecting, Defendant submits that such information is in the possession, custody or control of Plaintiffs and, therefore, such information is equally available to Plaintiffs. REQUEST NO. 11: Please produce all documents, correspondence, and ESI that you sent to or received from any employee, or former employee, of Bluebonnet since your first day of employment with Suther related to any Bluebonnet customer. RESPONSE: Defendant objects to this Request to the extent that it is vague and ambiguous as to the information being requested due to the phrase “related to.” Defendant further objects to this Request to the extent that it is overly broad and unduly burdensome as well as to the extent that it is not relevant to the subject matter of this action nor proportional to the needs of the case. Further objecting, Defendant submits that such information is in the possession, custody or control of Plaintiffs and, therefore, such information is equally available to Plaintiffs. REQUEST NO. 12: Please produce all documents, correspondence, and ESI that you sent to or received from customers on behalf of Suther since November 1, 2021, to present. RESPONSE: Defendant objects to this Request to the extent that it is overly broad and unduly burdensome as well as to the extent that it is not relevant to the subject matter of this action nor proportional to the needs of the case. Further objecting, Defendant submits that such information is in the possession, custody or control of Suther and, therefore, such information may be more properly obtained from Suther. REQUEST NO. 13: Please produce all documents, correspondence, and ESI reflecting your job title, description, or duties with Suther. RESPONSE: Defendant objects to this Request to the extent that it is vague and ambiguous as to the information being requested due to the phrase “reflecting.” Defendant further objects to this Request to the extent that it is overly broad and unduly burdensome as well as to the extent that it is not relevant to the subject matter of this action nor proportional to the needs of the case. Subject to and without waiving these objections, see WWS0002. REQUEST NO. 14: Please produce all documents, correspondence, and ESI that you relied upon in asserting that you had pre-existing business relationships with the beef cattle producers Plaintiffs' solicit and sell products to prior to your employment with Plaintiffs, alleged in Paragraph 27 of your Answer to Plaintiffs' Amended Complaint. RESPONSE: Defendant objects to this Request to the extent that it is premature as discovery is ongoing and further discovery is necessary. Defendant reserves the right to supplement this response. Defendant submits that he is conducting a reasonable search for responsive information and will timely supplement this response. REQUEST NO. 15: Please produce all documents, correspondence, and ESI that you relied upon in denying the allegations in paragraph 25 of the Amended Complaint. RESPONSE: Defendant objects to this Request to the extent that it is premature as discovery is ongoing and further discovery is necessary. Further objecting, Defendant submits that such information may be in the possession, custody or control of Plaintiffs. Defendant reserves the right to supplement this response. Subject to and without waiving these objections, Defendant submits that he is conducting a reasonable search for responsive information and will timely supplement this response. REQUEST NO. 16: Please produce all documents, correspondence, and ESI that you relied upon in denying the allegations that "Smith had considerable and regular contact with Plaintiffs' customers and gained intimate knowledge of their product formulation needs, pricing, and other customers-specific information. In carrying out his duties for Plaintiffs, Smith utilized Plaintiffs' product information, pricing, marketing strategies, and distribution information…Smith was charged with working with beef producer customers to create and produce the necessary livestock-specific product formulations. Smith developed and maintained relationships with Plaintiffs' customers and potential customers," as set forth in paragraph 26 of the Amended Complaint. RESPONSE: Defendant objects to this Request to the extent that it is premature as discovery is ongoing and further discovery is necessary. Further objecting, Defendant submits that such information may be in the possession, custody or control of Plaintiffs. Defendant reserves the right to supplement this response. Subject to and without waiving these objections, Defendant submits that he is conducting a reasonable search for responsive information and will timely supplement this response. REQUEST NO. 17: Please produce all documents, correspondence, and ESI that you relied upon in denying the allegations set forth in paragraph 27 of the Amended Complaint. RESPONSE: Defendant objects to this Request to the extent that it is premature as discovery is ongoing and further discovery is necessary. Further objecting, Defendant submits that such information may be in the possession, custody or control of Plaintiffs. Defendant reserves the right to supplement this response. Subject to and without waiving these objections, Defendant submits that he is conducting a reasonable search for responsive information and will timely supplement this response. REQUEST NO. 18: Please produce all documents, correspondence, and ESI in your possession that reflects Plaintiffs' product formulations, pricing, marketing strategies, and distribution information. RESPONSE: Defendant objects to this Request to the extent that it is overbroad, unduly burdensome, not relevant to the subject matter of this action nor proportional to the needs of the case. Subject to and without waiving these objections, Defendant submits that he is not in possession of any “confidential information” or “trade secrets” of Plaintiffs. REQUEST NO. 19: Please produce all documents, correspondence, and ESI that you sent to or received from Mr. Brian Reed related to the allegations contained in Plaintiffs' Amended Complaint since January 2021. RESPONSE: Defendant objects to this Request to the extent that it is vague and ambiguous as to the information being sought due to the phrase “related to.” Subject to and without waiving these objections, Defendant submits that he is conducting a reasonable search for responsive documentation and will timely supplement this Response. REQUEST NO. 20: Please produce all documents, correspondence, and ESI that you have sent to or received from Mr. Patrick Egan related to the allegations contained in Plaintiffs' Amended Complaint since January 2021. RESPONSE: Defendant objects to this Request to the extent that it is vague and ambiguous as to the information being sought due to the phrase “related to.” Subject to and without waiving these objections, Defendant submits that he is conducting a reasonable search for responsive documentation and will timely supplement this Response. Dated this 5th day of August 2022. WILLIAM SMITH, Defendant, /s/ Cody Brookhouser-Sisney Aaron A. Clark (#20045) Cody E. Brookhouser-Sisney (#25872) McGrath North Mullin & Kratz, PC LLO First National Tower, Suite 3700 1601 Dodge Street Omaha, NE 68102 Phone: 402-341-3070 Fax: 402-341-0216 aclark@mcgrathnorth.com cbrookhouser@mcgrathnorth.com CERTIFICATE OF SERVICE The undersigned hereby certifies that on the 5th day of August, 2022, the above and foregoing DEFENDANT'S RESPONSES TO PLAINTIFFS' FIRST SET OF REQUESTS FOR PRODUCTION OF DOCUMENTS were emailed to the following persons: Margaret C. Hershiser Patrice D. Ott Koley Jessen P.C., L.L.O. One Pacific Place, Suite 800 1125 South 103rd Street Omaha, NE 68124 Margaret.hershiser@koleyjessen.com Patrice.ott@koleyjessen.com /s/ Cody Brookhouser-Sisney Cody E. Brookhouser-Sisney IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEBRASKA STANDARD NUTRITION COMPANY, a ) CASE NO. 8:22-CV-00046-JFB-MDN Nebraska corporation, and AC ) BLUEBONNET, LP, a Texas limited ) partnership, ) ) DEFENDANT’S FIRST SUPPLEMENTAL Plaintiff, ) RESPONSES TO PLAINTIFFS’ FIRST ) SET OF REQUESTS FOR PRODUCTION v. ) OF DOCUMENTS ) WILLIAM SMITH, an individual, ) ) Defendant. ) Defendant, William Smith ("Defendant"), hereby submits his First Supplemental Responses to Plaintiffs’ First Set of Requests for Production of Documents as follows: REQUEST NO. 3: Please produce all documents, correspondence, and ESI that you sent to or received from Suther Feeds, Inc. ("Suther"), or any of Suther's employees, representatives, or agents between April 2020 and your first date as an employee of Suther. RESPONSE: Defendant objects to this Request to the extent that it is overly broad and unduly burdensome as well as to the extent that it seeks information that is not relevant to the subject matter of this action nor proportional to the needs of the case. Subject to and without waiving these objections, see WWS0002. FIRST SUPPLEMENTAL RESPONSE: Subject to and without waiver of the objections in Defendant’s initial response, see documents produced herewith numbered WWS0011 - 0060. Defendant further states that such information is in the possession, custody or control of Suther and, therefore, such information may be more properly obtained from Suther. REQUEST NO. 5: Please produce all documents, correspondence, and ESI that you sent to or received from Suther, or any of Suther's employees, representatives, or agents from April 2020 to present, that relate to individuals or companies that purchased nutritional supplements from Bluebonnet. RESPONSE: Defendant objects to this Request to the extent that it is vague and ambiguous as to the information being requested due to the phrase “relate to.” Defendant further objects to this Request to the extent that it is overly broad and unduly burdensome as well as to the extent that it is not relevant to the subject matter of this action nor proportional to the needs of the case. FIRST SUPPLEMENTAL RESPONSE: Subject to and without waiver of the objections in Defendant’s initial response, Defendant states that such information, if it exists, is in the possession, custody or control of Suther and, therefore, such information may be more properly obtained from Suther. REQUEST NO. 6: Please produce all documents, correspondence, and ESI that you sent to or received from Suther, or any of Suther's employees, representatives, or agents from April 2020 to present that relate to Plaintiffs, including its employees, products, systems, pricing, vendors, logistics, customers, or any other business information concerning Plaintiffs. RESPONSE: Defendant objects to this Request to the extent that it is vague and ambiguous as to the information being requested due to the phrases “relate to” and “concerning Plaintiffs.” Defendant further objects to this Request to the extent that it is overly broad and unduly burdensome as well as to the extent that it is not relevant to the subject matter of this action nor proportional to the needs of the case. FIRST SUPPLEMENTAL RESPONSE: Subject to and without waiver of the objections in Defendant’s initial response, Defendant submits that he is not in possession of any confidential information or trade secrets of Plaintiffs. Dated this 10th day of October, 2022. WILLIAM SMITH, Defendant, /s/ Ruth A. Horvatich Aaron A. Clark (#20045) Ruth A. Horvatich (#24776) McGrath North Mullin & Kratz, PC LLO First National Tower, Suite 3700 1601 Dodge Street Omaha, NE 68102 Phone: 402-341-3070 Fax: 402-341-0216 aclark@mcgrathnorth.com rhorvatich@mcgrathnorth.com COUNSEL FOR DEFENDANT CERTIFICATE OF SERVICE The undersigned hereby certifies that on the 10th day of October, 2022, the above and foregoing Defendant's First Supplemental Responses To Plaintiffs' First Set of Requests For Production of Documents were emailed to the following: Margaret C. Hershiser Patrice D. Ott Keith W. Catt Koley Jessen P.C., L.L.O. One Pacific Place, Suite 800 1125 South 103rd Street Omaha, NE 68124 Margaret.hershiser@koleyjessen.com Patrice.ott@koleyjessen.com Keith.catt@koleyjessen.com /s/ Ruth A. Horvatich Ruth A. Horvatich IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEBRASKA STANDARD NUTRITION COMPANY, a ) CASE NO. 8:22-CV-00046-JFB-MDN Nebraska corporation, and AC ) BLUEBONNET, LP, a Texas limited ) partnership, ) ) DEFENDANT’S SECOND Plaintiff, ) SUPPLEMENTAL RESPONSES TO ) PLAINTIFFS’ FIRST SET OF v. ) REQUESTS FOR PRODUCTION OF ) DOCUMENTS WILLIAM SMITH, an individual, ) ) Defendant. ) Defendant, William Smith ("Defendant"), hereby submits his Second Supplemental Responses to Plaintiffs’ First Set of Requests for Production of Documents as follows: REQUEST NO. 3: Please produce all documents, correspondence, and ESI that you sent to or received from Suther Feeds, Inc. ("Suther"), or any of Suther's employees, representatives, or agents between April 2020 and your first date as an employee of Suther. RESPONSE: Defendant objects to this Request to the extent that it is overly broad and unduly burdensome as well as to the extent that it seeks information that is not relevant to the subject matter of this action nor proportional to the needs of the case. Subject to and without waiving these objections, see WWS0002. FIRST SUPPLEMENTAL RESPONSE: Subject to and without waiver of the objections in Defendant’s initial response, see documents produced herewith numbered WWS0011 - 0060. Defendant further states that such information is in the possession, custody or control of Suther and, therefore, such information may be more properly obtained from Suther. SECOND SUPPLEMENTAL RESPONSE: Subject to and without waiver of the objections in Defendant’s initial response, see documents produced herewith numbered WWS0262 – WWS0681. Defendant further states that such information is in the possession, custody or control of Suther and, therefore, such information may be more properly obtained from Suther. REQUEST NO. 14: Please produce all documents, correspondence, and ESI that you relied upon in asserting that you had pre-existing business relationships with the beef cattle producers Plaintiffs' solicit and sell products to prior to your employment with Plaintiffs, alleged in Paragraph 27 of your Answer to Plaintiffs' Amended Complaint. RESPONSE: Defendant objects to this Request to the extent that it is premature as discovery is ongoing and further discovery is necessary. Defendant reserves the right to supplement this response. Defendant submits that he is conducting a reasonable search for responsive information and will timely supplement this response. FIRST SUPPLEMENTAL RESPONSE: Subject to and without waiver of the objections in Defendant’s initial response, Defendant states that he has no responsive documents to this Request at this time and will timely supplement this response should responsive documents be found. REQUEST NO. 15: Please produce all documents, correspondence, and ESI that you relied upon in denying the allegations in paragraph 25 of the Amended Complaint. RESPONSE: Defendant objects to this Request to the extent that it is premature as discovery is ongoing and further discovery is necessary. Further objecting, Defendant submits that such information may be in the possession, custody or control of Plaintiffs. Defendant reserves the right to supplement this response. Subject to and without waiving these objections, Defendant submits that he is conducting a reasonable search for responsive information and will timely supplement this response. FIRST SUPPLEMENTAL RESPONSE: Subject to and without waiver of the objections in Defendant’s initial response, Defendant states that he has no responsive documents to this Request at this time and will timely supplement this response should responsive documents be found. REQUEST NO. 16: Please produce all documents, correspondence, and ESI that you relied upon in denying the allegations that "Smith had considerable and regular contact with Plaintiffs' customers and gained intimate knowledge of their product formulation needs, pricing, and other customers-specific information. In carrying out his duties for Plaintiffs, Smith utilized Plaintiffs' product information, pricing, marketing strategies, and distribution information…Smith was charged with working with beef producer customers to create and produce the necessary livestock-specific product formulations. Smith developed and maintained relationships with Plaintiffs' customers and potential customers," as set forth in paragraph 26 of the Amended Complaint. RESPONSE: Defendant objects to this Request to the extent that it is premature as discovery is ongoing and further discovery is necessary. Further objecting, Defendant submits that such information may be in the possession, custody or control of Plaintiffs. Defendant reserves the right to supplement this response. Subject to and without waiving these objections, Defendant submits that he is conducting a reasonable search for responsive information and will timely supplement this response. FIRST SUPPLEMENTAL RESPONSE: Subject to and without waiver of the objections in Defendant’s initial response, Defendant states that he has no responsive documents to this Request at this time and will timely supplement this response should responsive documents be found. REQUEST NO. 17: Please produce all documents, correspondence, and ESI that you relied upon in denying the allegations set forth in paragraph 27 of the Amended Complaint. RESPONSE: Defendant objects to this Request to the extent that it is premature as discovery is ongoing and further discovery is necessary. Further objecting, Defendant submits that such information may be in the possession, custody or control of Plaintiffs. Defendant reserves the right to supplement this response. Subject to and without waiving these objections, Defendant submits that he is conducting a reasonable search for responsive information and will timely supplement this response. FIRST SUPPLEMENTAL RESPONSE: Subject to and without waiver of the objections in Defendant’s initial response, Defendant states that he has no responsive documents to this Request at this time and will timely supplement this response should responsive documents be found. REQUEST NO. 19: Please produce all documents, correspondence, and ESI that you sent to or received from Mr. Brian Reed related to the allegations contained in Plaintiffs' Amended Complaint since January 2021. RESPONSE: Defendant objects to this Request to the extent that it is vague and ambiguous as to the information being sought due to the phrase “related to.” Subject to and without waiving these objections, Defendant submits that he is conducting a reasonable search for responsive documentation and will timely supplement this Response. FIRST SUPPLEMENTAL RESPONSE: Subject to and without waiver of the objections in Defendant’s initial response, see documents produced herewith numbered WWS0061 - 0198. Defendant did not include documents, correspondence, and ESI sent to or received from Mr. Brian Reed from his email address breed@acbluebonnet.com as such emails are in the possession of Plaintiffs. REQUEST NO. 20: Please produce all documents, correspondence, and ESI that you have sent to or received from Mr. Patrick Egan related to the allegations contained in Plaintiffs' Amended Complaint since January 2021. RESPONSE: Defendant objects to this Request to the extent that it is vague and ambiguous as to the information being sought due to the phrase “related to.” Subject to and without waiving these objections, Defendant submits that he is conducting a reasonable search for responsive documentation and will timely supplement this Response. FIRST SUPPLEMENTAL RESPONSE: Subject to and without waiver of the objections in Defendant’s initial response, see documents produced herewith numbered WWS0199 - 0261. Defendant did not include documents, correspondence, and ESI sent to or received from Mr. Patrick Egan from his email address pegan@acbluebonnet.com as such emails are in the possession of Plaintiffs. Dated this 4th day of November, 2022. WILLIAM SMITH, Defendant, /s/ Ruth A. Horvatich Aaron A. Clark (#20045) Ruth A. Horvatich (#24776) McGrath North Mullin & Kratz, PC LLO First National Tower, Suite 3700 1601 Dodge Street Omaha, NE 68102 Phone: 402-341-3070 Fax: 402-341-0216 aclark@mcgrathnorth.com rhorvatich@mcgrathnorth.com COUNSEL FOR DEFENDANT CERTIFICATE OF SERVICE The undersigned hereby certifies that on the 4th day of November, 2022, the above and foregoing Defendant's Second Supplemental Responses To Plaintiffs' First Set of Requests For Production of Documents were emailed to the following: Margaret C. Hershiser Patrice D. Ott Keith W. Catt Koley Jessen P.C., L.L.O. One Pacific Place, Suite 800 1125 South 103rd Street Omaha, NE 68124 Margaret.hershiser@koleyjessen.com Patrice.ott@koleyjessen.com Keith.catt@koleyjessen.com /s/ Ruth A. Horvatich Ruth A. Horvatich