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Filing # 78965216 E-Filed 10/05/2018 04:38:22 PM
IN THE CIRCUIT COURT OF THE 17™
JUDICIAL CIRCUIT IN AND FOR
BROWARD COUNTY, FLORIDA
FOOD MARKETING CONSULTANTS, INC.
d/b/a SAN BERNARDO,
Plaintiff,
vs. CASE NO. CACE 18-000924
NEW ALBERTSON’S LP fin/a
NEW ALBERTSON’S, INC.
Defendant.
PLAITNIFF, FOOD MARKETING CONSULTANTS, INC d/b/a SAN BERNARDO’S,
SECOND REQUEST FOR PRODUCTION
Pursuant to Rule 1.350 of the Florida Rules of Civil Procedure Plaintiff, Food Marketing
Consultants, Inc. d/b/a San Bernardo, by and through his undersigned counsel, request the
Defendant, produce the following described documents and tangible things in accordance with
Rule 1.350 and the definitions and instructions stated below, at the offices of Silverberg & Weiss,
P.A. 1290 Weston Road, Ste. 218, Weston, FL 33326, within 30 days of service of this Request.
DEFINITIONS AND INSTRUCTIONS
The following definitions shall apply to this Request:
A. “You”, “Your”, or “Defendant” as used herein means Defendant, NEW ALBERTSON’S
LP f/n/a NEW ALBERTSON’S, INC., includes all agents, employees, servants, officers,
directors, attorneys and any other person or entity acting or purporting to act on its behalf.
B. “San Bernardo” as used herein means Plaintiff, Food Marketing Consultants, Inc. d/b/a San
Bernardo, and includes any and all agents, employees, servants, officers, directors,
attorneys and any other person or entity acting or purporting to act on its behalf.
*** FILED: BROWARD COUNTY, FL BRENDA D. FORMAN, CLERK 10/5/2018 4:38:22 PM.****. “Complaint” as used herein means the Second Amended Complaint filed by Plaintiff.
. “San Bernardo Email” as used herein means the email attached to the Complaint as Exhibit
“Ay.
. “Shelf Space” as used herein means __ the total amount of space available in
a store to display goods for sale, or the amount of space for particular goods.
“Slotting Fee” as used herein means money paid to Defendant by food and beverage
suppliers to have their products featured on its store shelves and stored in its warehouse or
as otherwise alleged in the Complaint.
. “Safeway” means Safeway, Inc.
. “Person” as used herein means any natural person or any entity, including without
limitation any individual, firm, corporation, company, joint venture, trust, tenancy,
association, partnership, business, agency, department, bureau, board, commission, or any
other form of public, private or legal entity,. Any reference herein to any public or private
company, partnership, association, or other entity include such entity’s subsidiaries and
affiliates, as well as the present and former directors, officers, employees, attorneys, agents
and anyone acting on behalf of, at the direction of, or under the control of the entity, its
subsidiaries or its affiliates.
“Documents” shall mean the original or copies of any tangible written, typed, printed or
other form of recorded or graphic matter of every kind or description, however, produced
or reproduced, whether mechanically or electronically recorded, draft final and original,
reproduction, signed or unsigned, regardless of whether approved, signed, sent, received,
tedrafted, or executed, and whether handwritten, typed, printed, photostated, duplicated
carbon or otherwise copied or produced in any other manner whatsoever. Without limiting
the generality of the foregoing, “documents” shall include correspondence, letters,
telegrams, telexes, mailgrams, memoranda, including inter-office and_ intra-office
memoranda, memoranda for files memoranda of telephone or other conversations,
including meetings, invoices, reports, receipts and statements or account, ledgers, notes, or
notations, notes or memorandum attached to or to be read with any document, booklets,
books, drawings, graphs, charts, photographs, phone records, electronic tapes, discs or
other recordings, computer programs, printouts, data cards, documents, which are not
identical duplications of the originals or which contain additions to or deletions from the
originals or copies of the originals if the originals are not available, shall be considered to
be separate documents.
“Documents” shall also include all electronic data storage documents including but not
limited to e-mails and any related attachments, electronic files or other data compilations
which relate to the categories of documents as requested below. Your search for these
electronically stored documents shall include all of your computer hard drives, floppy
discs, compact discs, backup and archival tapes, removable media such as zip drives,password protected and encrypted files, databases electronic calendars, personal digital
assistants, proprietary software and inactive or unused computer disc storage areas.
K. “Communications” shall mean any oral or written statement, dialogue, colloquy,
discussion or conversation and also, means any transfer of thoughts or ideas between
persons by means of documents and includes a transfer of data from one location to another
by electronic or similar means,
L. “Related to” or “relating to” shall mean, directly or indirectly, refer to, reflect, mention,
describe, pertain to, arise out of or in connection with or in any way legally, logically, or
factually, be connected with the matter discussed.
M. As used herein, the conjunctions “and” and “or” shall be interpreted in each instance as
meaning “and/or” so as to encompass the broader of the two possible constructions, and
shall not be interpreted disjunctively so as to exclude any information or documents
otherwise within the scope of any request.
N. Any pronouns used herein shall include and be read and applied as to encompass the
alternative forms of the pronoun, whether masculine, feminine, neuter, singular or plural,
and shall not be interpreted so as to exclude any information or documents otherwise within
the scope of any request.
O. Unless otherwise specified herein, the time frame for each request is from and including
January 1, 2016 to the present.
P. If you contend that you are entitled to withhold any responsive document(s) on the basis
of privilege or other grounds, for each and every such document specify:
i. The type or nature of the document;
ii. The general subject matter of the document;
iii. The date of the document;
iv. The author, addressee, and any other recipient(s) of the document;
and
v. The basis on which you contend you are entitled to withhold the
document.
Q. If you assert that any document sought by any request is protected against disclosure as the
attorneys’ work product doctrine or by the attorney-client privilege, you shall provide the
following information with respect to such document:a. the name and capacity of the person or persons who prepared the
documents;
b. the name and capacity of all addresses or recipients of the
original or copies thereof;
c the date, if any, borne by the document;
d. a brief description of its subject matter and physical size;
e the source of the factual information from which such
document was prepared; and
f. the nature of the privileged claimed.
DD. You must produce all documents within your case, custody, or control that are
responsive to any of these requests. A document is within your care, custody, or
control if you have the right or ability to secure the document or a copy thereof
from any other person having physical possession thereof.
If you at any time had possession, custody, or control of a document called for
under this requests and if such document has been lost, destroyed, purged, or is not
presently in your possession, custody, or control, you shall describe the document,
the date of its loss, destruction, purge, or separation from possession, custody or
control and the circumstances surrounding its loss, destruction, purge, or separation
from possession, custody, and control.
EE. All documents produced pursuant hereto are to be produced as they are kept in the
usual course of business and shall be organized and labeled (without permanently
making the items produced) so as to correspond with the categories of each
numbered request hereof.
CC. When appropriate, the singular form of a word should be interpreted in the plural
as may be necessary to bring within the scope hereof any documents which might
otherwise be construed to be outside the scope hereof.
FIRST REQUEST FOR PRODUCITON
1. All Communications between or among Defendant and Albertson’s, LLC relating
to any allegation contained within the Complaint.
2. All Communications between or among Defendant and Safeway, Inc. relating to
any allegation contained within the Complaint.3. All Communications, regardless of the parties (except attorney-client
communications), relating to the Slotting Fee as referenced in the Complaint.
4, All Communications, regardless of the parties (except attorney-client
communications), relating to promotion of Plaintiff's ice cream as referenced in the Complaint.
5. All Communications, regardless of the parties (except attorney-client
communications), relating to the pricing of Plaintiff's ice cream by Defendants as referenced in
the Complaint.
6. All Communications, regardless of the parties (except attorney-client
communications), relating to the advertising of Plaintiff's ice cream by Defendants as referenced
in the Complaint.
7. All Communications, regardless of the parties (except attorney-client
communications), relating to the Invoices as referenced in the Complaint.
8. All Documents relating to the inventory of Plaintiffs product in Defendant’s
stores.
Respectfully submitted,
SILVERBERG & WEISS, P.A.
Attorneys for Plaintiff
1290 Weston Road, Suite 218
Weston, Florida 33326
E-mail: notices@pkslegal.com
Tel. (954) 384-0998 / Fax. (954) 384-5390
By: __s/Paul Silverberg
Paul K. Silverberg, Esq.
Florida Bar No. 147877
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on this 5 day of October 2018, a copy of the foregoing has been
furnished to Eric Lee, Esq. at lee@lecamlaw.com.
By: Paul K. Silverberg
Paul K. Silverberg, Esq.
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Filing # 78965216 E-Filed 10/05/2018 04:38:22 PM IN THE CIRCUIT COURT OF THE 17™ JUDICIAL CIRCUIT IN AND FOR BROWARD COUNTY, FLORIDA FOOD MARKETING CONSULTANTS, INC. d/b/a SAN BERNARDO, Plaintiff, vs. CASE NO. CACE 18-000924 NEW ALBERTSON’S LP fin/a NEW ALBERTSON’S, INC. Defendant. PLAITNIFF, FOOD MARKETING CONSULTANTS, INC d/b/a SAN BERNARDO’S, SECOND REQUEST FOR PRODUCTION Pursuant to Rule 1.350 of the Florida Rules of Civil Procedure Plaintiff, Food Marketing Consultants, Inc. d/b/a San Bernardo, by and through his undersigned counsel, request the Defendant, produce the following described documents and tangible things in accordance with Rule 1.350 and the definitions and instructions stated below, at the offices of Silverberg & Weiss, P.A. 1290 Weston Road, Ste. 218, Weston, FL 33326, within 30 days of service of this Request. DEFINITIONS AND INSTRUCTIONS The following definitions shall apply to this Request: A. “You”, “Your”, or “Defendant” as used herein means Defendant, NEW ALBERTSON’S LP f/n/a NEW ALBERTSON’S, INC., includes all agents, employees, servants, officers, directors, attorneys and any other person or entity acting or purporting to act on its behalf. B. “San Bernardo” as used herein means Plaintiff, Food Marketing Consultants, Inc. d/b/a San Bernardo, and includes any and all agents, employees, servants, officers, directors, attorneys and any other person or entity acting or purporting to act on its behalf. *** FILED: BROWARD COUNTY, FL BRENDA D. FORMAN, CLERK 10/5/2018 4:38:22 PM.****. “Complaint” as used herein means the Second Amended Complaint filed by Plaintiff. . “San Bernardo Email” as used herein means the email attached to the Complaint as Exhibit “Ay. . “Shelf Space” as used herein means __ the total amount of space available in a store to display goods for sale, or the amount of space for particular goods. “Slotting Fee” as used herein means money paid to Defendant by food and beverage suppliers to have their products featured on its store shelves and stored in its warehouse or as otherwise alleged in the Complaint. . “Safeway” means Safeway, Inc. . “Person” as used herein means any natural person or any entity, including without limitation any individual, firm, corporation, company, joint venture, trust, tenancy, association, partnership, business, agency, department, bureau, board, commission, or any other form of public, private or legal entity,. Any reference herein to any public or private company, partnership, association, or other entity include such entity’s subsidiaries and affiliates, as well as the present and former directors, officers, employees, attorneys, agents and anyone acting on behalf of, at the direction of, or under the control of the entity, its subsidiaries or its affiliates. “Documents” shall mean the original or copies of any tangible written, typed, printed or other form of recorded or graphic matter of every kind or description, however, produced or reproduced, whether mechanically or electronically recorded, draft final and original, reproduction, signed or unsigned, regardless of whether approved, signed, sent, received, tedrafted, or executed, and whether handwritten, typed, printed, photostated, duplicated carbon or otherwise copied or produced in any other manner whatsoever. Without limiting the generality of the foregoing, “documents” shall include correspondence, letters, telegrams, telexes, mailgrams, memoranda, including inter-office and_ intra-office memoranda, memoranda for files memoranda of telephone or other conversations, including meetings, invoices, reports, receipts and statements or account, ledgers, notes, or notations, notes or memorandum attached to or to be read with any document, booklets, books, drawings, graphs, charts, photographs, phone records, electronic tapes, discs or other recordings, computer programs, printouts, data cards, documents, which are not identical duplications of the originals or which contain additions to or deletions from the originals or copies of the originals if the originals are not available, shall be considered to be separate documents. “Documents” shall also include all electronic data storage documents including but not limited to e-mails and any related attachments, electronic files or other data compilations which relate to the categories of documents as requested below. Your search for these electronically stored documents shall include all of your computer hard drives, floppy discs, compact discs, backup and archival tapes, removable media such as zip drives,password protected and encrypted files, databases electronic calendars, personal digital assistants, proprietary software and inactive or unused computer disc storage areas. K. “Communications” shall mean any oral or written statement, dialogue, colloquy, discussion or conversation and also, means any transfer of thoughts or ideas between persons by means of documents and includes a transfer of data from one location to another by electronic or similar means, L. “Related to” or “relating to” shall mean, directly or indirectly, refer to, reflect, mention, describe, pertain to, arise out of or in connection with or in any way legally, logically, or factually, be connected with the matter discussed. M. As used herein, the conjunctions “and” and “or” shall be interpreted in each instance as meaning “and/or” so as to encompass the broader of the two possible constructions, and shall not be interpreted disjunctively so as to exclude any information or documents otherwise within the scope of any request. N. Any pronouns used herein shall include and be read and applied as to encompass the alternative forms of the pronoun, whether masculine, feminine, neuter, singular or plural, and shall not be interpreted so as to exclude any information or documents otherwise within the scope of any request. O. Unless otherwise specified herein, the time frame for each request is from and including January 1, 2016 to the present. P. If you contend that you are entitled to withhold any responsive document(s) on the basis of privilege or other grounds, for each and every such document specify: i. The type or nature of the document; ii. The general subject matter of the document; iii. The date of the document; iv. The author, addressee, and any other recipient(s) of the document; and v. The basis on which you contend you are entitled to withhold the document. Q. If you assert that any document sought by any request is protected against disclosure as the attorneys’ work product doctrine or by the attorney-client privilege, you shall provide the following information with respect to such document:a. the name and capacity of the person or persons who prepared the documents; b. the name and capacity of all addresses or recipients of the original or copies thereof; c the date, if any, borne by the document; d. a brief description of its subject matter and physical size; e the source of the factual information from which such document was prepared; and f. the nature of the privileged claimed. DD. You must produce all documents within your case, custody, or control that are responsive to any of these requests. A document is within your care, custody, or control if you have the right or ability to secure the document or a copy thereof from any other person having physical possession thereof. If you at any time had possession, custody, or control of a document called for under this requests and if such document has been lost, destroyed, purged, or is not presently in your possession, custody, or control, you shall describe the document, the date of its loss, destruction, purge, or separation from possession, custody or control and the circumstances surrounding its loss, destruction, purge, or separation from possession, custody, and control. EE. All documents produced pursuant hereto are to be produced as they are kept in the usual course of business and shall be organized and labeled (without permanently making the items produced) so as to correspond with the categories of each numbered request hereof. CC. When appropriate, the singular form of a word should be interpreted in the plural as may be necessary to bring within the scope hereof any documents which might otherwise be construed to be outside the scope hereof. FIRST REQUEST FOR PRODUCITON 1. All Communications between or among Defendant and Albertson’s, LLC relating to any allegation contained within the Complaint. 2. All Communications between or among Defendant and Safeway, Inc. relating to any allegation contained within the Complaint.3. All Communications, regardless of the parties (except attorney-client communications), relating to the Slotting Fee as referenced in the Complaint. 4, All Communications, regardless of the parties (except attorney-client communications), relating to promotion of Plaintiff's ice cream as referenced in the Complaint. 5. All Communications, regardless of the parties (except attorney-client communications), relating to the pricing of Plaintiff's ice cream by Defendants as referenced in the Complaint. 6. All Communications, regardless of the parties (except attorney-client communications), relating to the advertising of Plaintiff's ice cream by Defendants as referenced in the Complaint. 7. All Communications, regardless of the parties (except attorney-client communications), relating to the Invoices as referenced in the Complaint. 8. All Documents relating to the inventory of Plaintiffs product in Defendant’s stores. Respectfully submitted, SILVERBERG & WEISS, P.A. Attorneys for Plaintiff 1290 Weston Road, Suite 218 Weston, Florida 33326 E-mail: notices@pkslegal.com Tel. (954) 384-0998 / Fax. (954) 384-5390 By: __s/Paul Silverberg Paul K. Silverberg, Esq. Florida Bar No. 147877 CERTIFICATE OF SERVICE I HEREBY CERTIFY that on this 5 day of October 2018, a copy of the foregoing has been furnished to Eric Lee, Esq. at lee@lecamlaw.com. By: Paul K. Silverberg Paul K. Silverberg, Esq.