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Filing # 110994798 E-Filed 07/29/2020 04:15:20 PM
IN THE CIRCUIT COURT OF THE 177!
JUDICIAL CIRCUIT IN AND FOR
BROWARD COUNTY, FLORIDA
FOOD MARKETING CONSULTANTS, INC.
d/b/a SAN BERNARDO,
CASE NO. CACE18-000924 (09)
Plaintiff,
vs.
NEW ALBERTSON’S LP f/n/a
NEW ALBERTSON’S, INC.
Defendants.
/
PLAINTIFF, FOOD MARKETING CONSULTANTS, INC.
D/B/A SAN BERNARDO’S, SECOND MOTION TO COMPEL DEPOSITION AND
DOCUMENT PRODUCTION OF NON-PARTY, C&S WHOLESALE GROCERS, INC.
Plaintiff, Food Marketing Consultants, Inc., d/b/a San Bernardo (“San Bernardo”), by and
through undersigned counsel, and pursuant to the Florida Rules of Civil Procedure, hereby files
this Second Motion to Compel Deposition and Production of Documents of Non-Party, C&S
Wholesale Grocers, Inc. (“C&S”), and in support states as follows:
1. On April 10, 2020 and April 29, 2020, Plaintiff contacted counsel for C&S to set a
date to take the deposition of their corporate representative. Please see attached correspondence
incorporated herein as composite Exhibit “A”.
2. On June 4, 2020, after not hearing back from counsel for C&S regarding available
dates, Plaintiff chose June 24, 2020 for the deposition. Please see attached Notice of Taking
Deposition Duces Tecum attached hereto as Exhibit “B”.
*** FILED: BROWARD COUNTY, FL BRENDA D. FORMAN, CLERK 07/29/2020 04:15:20 PM.****CASE NO. CACE18-000924
Motion to Compel
3. On June 5, 2020, C&S was served with the Subpoena Duces Tecum for Deposition.
Please see attached Return of Service attached hereto as Exhibit “C”.
4. At no time did counsel for C&S inform Plaintiff that their corporate representative
was not available or that they would not be attending the deposition scheduled for June 24, 2020.
5. On June 24, 2020, counsel for Plaintiff and Defendant appeared for the deposition
of C&S’ corporate representative, who failed to appear. C&S also failed to provide the documents
requested. Please see attached Certificate of Non-Appearance attached hereto as Exhibit “D”.
6. Plaintiff has made numerous attempts, stretching for a period of months, to take the
deposition of the corporate representative for C&S, however, C&S has been uncooperative and
dilatory. This is preventing Plaintiff from being ready for trial.
7. No less at the hearing on June 23, 2020, they agreed to work with us to produce
documents under that pending Motion to Compel related to subpoenaed documents, yet no
production or proposal from them as to the open requests, plus no other contact was made by their
counsel (no notice of appearance either). Please see attached correspondence incorporated herein
as composite Exhibit “E”.
8. As a result of the above, this Motion has been filed and Plaintiff has incurred costs
and fees to compel C&S’ deposition and document production. Plaintiff has made attempts to
avoid the need of this Motion and seek compliance by C&S. Fees should be awarded to Plaintiff.
WHEREFORE, Plaintiff respectfully requests that this Court enter an Order awarding
Plaintiff its attomney’s fees and costs against Non-Party, C&S Wholesale Grocers, Inc., compel
C&S Wholesale Grocers, Inc. to appear for deposition within thirty (30) days and to provide all
requested documents, and any other relief that this Court deems just and proper.CASE NO. CACE18-000924
Motion to Compel
Respectfully Submitted,
SILVERBERG & WEISS, P.A.
Attorneys for Plaintiff
1290 Weston Rd, Suite 218
Weston, Florida 33326
Notices@pkslegal.com
(954) 384-0998 tel.
(954) 384-5390 fax.
By: ___ Paul K. Silverberg
Paul K. Silverberg, Esq.
Fla. Bar No. 147877
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing was filed via the
Florida Courts E-Filing portal and furnished to Eric Lee, Esq. at lee@leeamlaw.com and Erik
Stidham, Esq., efstidham@hollandhart.com; Kevin Gordon, Esq. via e-mail at
KGordon@cswg.com and SDuffy@cswg.com and US Mail to 7 Corporate Drive, Keene, NH
03431 on this 29th day of July, 2020.
By: ___ Paul K. Silverberg
Paul K. Silverberg, Esq.From: Kelly Karge - www.pkslegal.com
To: kgordon@cswa.com;
Subject: Food Marketing v New Albertsons
Date: Friday, April 10, 2020 1:09:00 PM
Attachments: image001.if
imaae002.cif
Importance: High
Good Afternoon:
We need to schedule the deposition, via video, of the Corporate Representative for C & S (the
person with the most knowledge regarding the relationship between C&S Wholesale Grocer, Inc.
with New Albertsons and Food Marketing Consultants d/b/a San Bernardo).
The representative should have knowledge regarding receiving and placing orders, shipping records
and sales.
The following dates are available on our calendar:
4/24;
4/27 AM
4/28 PM
5/1
5/6 PM
5/8 AM
Please advise by Tuesday, 4/14/20 of your availability on the dates provided and we will clear them
with counsel Mr. Lee.
We appreciate your attention to this request.
Thank you.
Kelly Karge
Legal Assistant
SILVERBERG & WEISS, PA
1290 WESTON ROAD, SUITE 218 - WESTON, FLORIDA 33326
954.384.0998 - MAIN | 305.280.0095 - MIAMI | 561.651.0998 - BOCA RATON | 813.803.0998 - TAMPA
954.384.5390 - FAX | 813.200.1005 - FAX
kkarge@pkslegal.com www.pkslegal.com
tained in this E-mail ness
individual(s) named abov
any dissemination
ge is privileged and 1
If the reader of
S not the intended
d this communication in error, please sender by reply E-mail
f the original message. Any tax advice contained in this communication, including
nded or written to be used, and cannot be used by any taxpayer, for the purpose of
avoiding penalties under the Internal Revenue Code or promoting, marketing or recommending to another party any
matters addressed herein.
EXHIBIT AFrom: Kelly Karge - www.pkslegal.com
To: sduffy@cswa.com; kaordon@cswa.com
Cc: Kimberly Matyjasik - www.pksiegal.com
Subject: FW: Food Marketing v New Albertsons
Date: Wednesday, April 29, 2020 4:47:00 PM
Attachments: image001.aif
imaqe002.aif
Importance: High
Good Afternoon:
On April 10" we requested to schedule the deposition, via video, of the
Corporate Representative for C & S (the person with the most knowledge
regarding the relationship between C&S Wholesale Grocer, Inc. with New
Albertsons and Food Marketing Consultants d/b/a San Bernardo).
The representative should have knowledge regarding receiving and placing
orders, shipping records and sales. We asked to receive a response by April
14°”, As of this date (4/29) we have not heard back from your office.
We must get this deposition scheduled as soon as possible.
The following dates are available on our calendar:
May 11° AM
May 13" all day
May 14° all day
May 1sth all day
May 19°” All day
Please respond to our request by providing All dates you are available from the
dates provided, as we will be coordinating this deposition with Mr. Lee’s office
as well.
7
i
3oth_Thank you very much
Kelly Karge
Legal Assistant
SILVERBERG & WEISS, PA
1290 WESTON ROAD, SUITE 218 - WESTON, FLORIDA 33326
954.384.0998 - MAIN | 305.280.0095 - MIAMI | 561.651.0998 - BOCA RATON | 813.803.0998 - TAMPA
954.384.5390 - FAX | 813.200.1005 - FAX
kkarge@pkslegal.com www.pkslegal.com
and
ft
ending to another party any
From: Kelly Karge - www.pkslegal.com
Sent: Friday, April 10, 2020 1:10 PM
To: kgordon@cswg.com; sduffy@cswg.com
Subject: Food Marketing v New Albertsons
Importance: High
Good Afternoon:
We need to schedule the deposition, via video, of the Corporate Representative for C & S (the
person with the most knowledge regarding the relationship between C&S Wholesale Grocer, Inc.
with New Albertsons and Food Marketing Consultants d/b/a San Bernardo).
The representative should have knowledge regarding receiving and placing orders, shipping records
and sales.
The following dates are available on our calendar:
4/24;
4/27 AM
4/28 PM
5/1
5/6 PM
5/8 AM
Please advise by Tuesday, 4/14/20 of your availability on the dates provided and we will clear themwith counsel Mr. Lee.
We appreciate your attention to this request.
Thank you.
Kelly Karge
Legal Assistant
SILVERBERG & WEISS, PA
1290 WESTON ROAD, SUITE 218 - WESTON, FLORIDA 33326
954.384.0998 - MAIN | 305.280.0095 - MIAMI | 561.651.0998 - BOCA RATON | 813.803.0998 - TAMPA
954.384.5390 - FAX | 813.200.1005 - FAX
Kkarge@pkslegal.com www.pkslegal.com
ATTENTION: rhe i
ged and confidential information
>f this me, snot the intended
© any dissemin
ved th E-mail
attachments, is not
avoiding penalties under the Internal Revenue Code or promoting, marketing or recommending to another party any
matters addressed herein.Filing # 108397596 E-Filed 06/04/2020 02:24:13 PM
IN THE CIRCUIT COURT OF THE 177!
JUDICIAL CIRCUIT IN AND FOR
BROWARD COUNTY, FLORIDA
CASE NO. CACE18-000924 (09)
FOOD MARKETING CONSULTANTS, INC.
d/b/a SAN BERNARDO,
Plaintiff,
vs.
NEW ALBERTSON’S LP f/n/a
NEW ALBERTSON’S, INC.
Defendants.
/
NOTICE OF TAKING DEPOSITION DUCES TECUM
PLEASE TAKE NOTICE that pursuant to Rule 1.310(b)(6) of the Fla. R. Civ. Pro.,
Plaintiff, by and through undersigned counsel, will take the deposition(s) upon oral examination
of the entity named below, on the date and at the time and place indicted:
NAME DATE TIME PLACE
R. 1.310(b) corporate June 24, 2020 | 10:00am _ | Join OfficeSuite Meeting
representative of C&S
Wholesale Grocers, Inc. as to https://meeting.windstream.com/j/
Schedule “A” 1128033633
If joining telephonically:
646-741-5292
Meeting ID: 112 803 3633
EXHIBIT BCASE NO. CACE18-000924 (09)
The deposition is being taken for discovery purposes, for use at trial, or any other purpose
permitted under the applicable Rules of Procedure. The schedule of topics for Deponent is attached
hereto as Schedule “A” and the schedule for document requests for Deponent is attached hereto as
Schedule “B”.
The name and address of the operator is a representative of Executive Reporting Service,
200 Ist Avenue, South, Ste 402, St. Petersburg, FL 33701, telephone number (727) 823-4155.
PLEASE GOVERN YOURSELF ACCORDINGLY.
Respectfully Submitted,
SILVERBERG & WEISS, P.A.
Attorneys for Plaintiff
1290 Weston Rd, Suite 218
Weston, Florida 33326
Notices@pkslegal.com
(954) 384-0998 tel.
(954) 384-5390 fax.
By: Paul K. Silverberg
Paul K. Silverberg, Esq.
Fla. Bar No. 147877
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing was filed via the Florida
Courts E-Filing portal and furnished to Eric Lee, Esq. at lee@leeamlaw.com on this 4" day of
June, 2020.
By: __ Paul K. Silverberg
Paul K. Silverberg, Esq.CASE NO. CACE18-000924 (09)
SCHEDULE “A”
TOPICS ON WHICH EXAMINATION IS REQUESTED
1. Knowledge of Food Marketing Consultants, Inc. d/b/a San Bernardo product
delivery, returns, movement, orders, stocking, inventory and sales related to New Albertson’s LP
f/n/a New Albertson’s Inc. (including Safeway or Albertsons and individual stores) from January
1, 2016 to present.
2. Knowledge of communications and documents between C&S Wholesale Grocers,
Inc. and New Albertson’s LP f/n/a New Albertson’s Inc. (including Safeway or Albertsons and
individual stores), relating to Food Marketing Consultants, Inc., d/b/a San Bernardo from January
1, 2016 to present.
3. Knowledge of business deal or arrangement, including but not limited to stocking
fee relating to Food Marketing Consultants, Inc., d/b/a San Bernardo and New Albertson’s LP
f/n/a New Albertson’s Inc. (including Safeway or Albertsons and individual stores) from January
1, 2016 to present.
4. Knowledge of shelving plans, plan-o-grams, distribution plans or other plans for
the location, timing or quantity of Food Marketing Consultants, Inc., d/b/a San Bernardo products
at New Albertson’s LP f/n/a New Albertson’s Inc. (including Safeway or Albertsons and
individual stores) from January 1, 2016 to present.
5. Knowledge of all documents and communications relating to the above for the time
period January 1, 2016 to present, including the documents on Exhibit B.
6. Knowledge of all charts, documents and spreadsheets previously provided by C&S
Wholesale Grocers, Inc. in response to the Plaintiff's Subpoena Duces Tecum for Documents
served on June 7, 2019.
7. Knowledge of documents not produced in response to the Plaintiff's Subpoena
Duces Tecum for Documents served on June 7, 2019.
8. Knowledge of payments, credits, charges, invoices, setoff, returns, discounts, bill
backs and account balances related to Food Marketing Consultants, Inc. d/b/a San Bernardo
products at New Albertson’s LP f/n/a New Albertson’s Inc. (including Safeway or Albertsons and
individual stores) from January 1, 2016 to present.CASE NO. CACE18-000924 (09)
SCHEDULE “B”
DOCUMENT REQUEST
1. All communications and documents, including but not limited to orders, purchase
orders, inventory inquiry, payment, invoices, store counts and delivery, exchanged between C&S
Wholesale Grocers, Inc. and New Albertson’s LP f/n/a New Albertson’s Inc., relating to Food
Marketing Consultants, Inc., d/b/a San Bernardo from January 1, 2016 to present.
2. All communications and documents, including but not limited to orders, purchase
orders, inventory inquiry, payment, invoices, store counts and delivery, exchanged between C&S
Wholesale Grocers, Inc. and Safeway or Albertsons relating to Food Marketing Consultants, Inc.,
d/b/a San Bernardo from January 1, 2016 to present.
3. All communications and documents, including but not limited to orders, purchase
orders, inventory inquiry, payment, invoices, store counts and delivery, exchanged between C&S
Wholesale Grocers, Inc. and Food Marketing Consultants, Inc., d/b/a San Bernardo from January
1, 2016 to present.
4. All charts, forecasts, schematics, projections, estimates and inventory records
related to Food Marketing Consultants, Inc., d/b/a San Bernardo products from January 1, 2016 to
present related to New Albertson’s LP f/n/a New Albertson’s Inc, Safeway or Albertsons.
5. All charts, forecasts, schematics, projections, estimates and inventory records
related to Food Marketing Consultants, Inc., d/b/a San Bernardo products from January 1, 2016 to
present.
6. All documents reflecting the account balance and history, including the supporting
documents for each entry and payments, credits, charges, invoices, setoff, returns, discounts , bill
backs and account balances related to Food Marketing Consultants, Inc., d/b/a San Bernardo
products at New Albertson’s LP f/n/a New Albertson’s Inc. (including Safeway or Albertsons
and individual stores) from January 1, 2016 to present.ERVICE
CASE #19-001783-CI
6/5/2020
PLAINTIFE
FOOD MARKETING CONSULTANTS, INC. D/B/A SAN BERNARDO
vs
DEFENDANT
NEW ALBERTSON'S LP F/N/A NEW ALBERTSON'S, INC
ATTORNEY: PAUL K. SILVERBERG
FIRM: SILVERBERG & WEISS, P.A.
TO: C&S WHOLESALE GROCERS, INC
C/O CT CORPORATION SYSTEM (REGISTERED AGENT)
1200 SOUTH PINE ISLAND ROAD
PLANTATION FL 33324
We. received this: SUBPOENA DUCES TECUM FOR DEPOSITION OF CORPORATE
REPRESENTIVE OF NON-PARTY C & S WHOLESALE GROCERS, INC. PURSUANT TO RULE /
NOTICE OF TAKING DEPOSITION DUCES TECUM On: 6/4/2020 At: 3:00 PM
This process was served to the above named Corporation/Sole Proprietorship or Individual
named, by delivering a true copy of the: SUBPOENA DUCES TECUM FOR DEPOSITION OF
CORPORATE REPRESENTIVE OF NON-PARTY C & S WHOLESALE GROCERS, INC.
PURSUANT TO RULE / NOTICE OF TAKING DEPOSITION DUCES TECUM
Type of service is: CORPORATE
Accepted By: CT CORPORATION SYSTEM (CONTACT DONNA MOCH) Title: MANAGER
On: 6/5/2020 At: 2:45 PM
Comments:
Affiant states upon information and belief that said person is not in the Military Service of the
United States as the term defined in either the state or Federal Statues.
I certify that I am of legal age, I have no interest in the above action and I am authorized to serve
this process. FS 92.525. Under penalities of perjury, I declare that I have read the forgoing
(Document) and that the facts in it are true,
MCKIE
ROCESS SERVER # 1369
RY COUNTY, FLORIDA
SILVERBERG & WEISS, P.A.
1920 WESTON RD. SUITE 218
WESTON FL 33326
Our Control # 22145
EXHIBIT CPage 1
IN THE CIRCUIT COURT OF THE SEVENTEENTH
JUDICIAL CIRCUIT OF THE STATE OF FLORIDA,
IN AND FOR BROWARD COUNTY, FLORIDA
CASE NO.: 15-010295-CI
FOOD MARKETING CONSULTANTS, INC.
d/b/a SAN BERNARDO,
Plaintiff,
vs.
NEW ALBERTSON'S LP f/n/a
NEW ALBERTSON'S, INC.,
Defendants.
CERTIFICATE OF NON-APPEARANCE
I, Kelley N. Black, Registered Professional
Reporter, Notary Public, State of Florida at Large:
DO HEREBY CERTIFY that I appeared at
10:00 a.m. on the 24th day of June, 2020, on a
scheduled Office Suite HD Meeting online for the
purpose of taking the Deposition of the CORPORATE
REPRESENTATIVE of C&S Wholesale Grocers, Inc. in the
above-entitled action, pursuant to Notice of Taking
Deposition, that the hour of 10:35 a.m. having arrived,
said CORPORATE REPRESENTATIVE did not appear.
DATED this 24th day of June, 2020
Kan Soon 4 ,
Sr
Executive Reporting Service
EXHIBIT D
Electronically signed by Kelley Simpson (601 -256-319-2392) 37ceGeeb-4609-437a-a58c-ae3d22e5efcgPaul Silverberg www.pkslegal. om
From: Paul Silverberg - www.pkslegal.com
Sent: Wednesday, June 24, 2020 10:39 AM
To: ‘kgordon@cswg.com’; 'bhewes@cswg.com'
Subject: RE: Waiting - Deposition of C&S
As we have not heard back from you and its been over 35m since the deposition was scheduled to start, we informed
the clerk to issue an CNA. Obviously we want to get this deposition done (and prefer to avoid the court’s involvement),
let me know alternative dates for the deposition.
Also, we need to discuss responsive documents per the hearing yesterday. | have availability on Friday, if that is a good
time for you.
Regards,
PAUL K. SILVERBERG, ESQ.
SILVERBERG & WEISS, PA
1290 WESTON ROAD, SUITE 218 - WESTON, FLORIDA 33326
954.384.0998 - MAIN | 305.280.0095 - MIAMI | 561.651.0998 - BOCA RATON | 813.803.0998 - TAMPA
954.384.5390 - FAX | 813.200.1005 - FAX | 239.580.5390 - FAX
EMAIL: psilverberg@pkslegal.com | WEB: www.pkslegal.com
ATTENTION: The information contained in this E-mail message [s privileged and confidential information intended only for the use of the individual(s) named above. If the
reader of this message is not the intended recipient. you are hereby notified that any dissemination, distribution or copy of this communication is strictly prohibited. If you have
recelved this communication in error, please contact the sender by reply E-mail and destroy all copies of the original message. Any tax advice contained in this
communication, including attachments, is not intended or written to be used, and cannot be used by any taxpayer, for the purpose of avoiding penalties under the Internal
Revenue Code or promoting, marketing or recommending to another party any matters addressed herein.
From: Paul Silverberg - www.pkslegal.com
Sent: Wednesday, June 24, 2020 10:15 AM
To: kgordon@cswg.com; bhewes@cswg.com
Subject: Waiting - Deposition of C&S
Importance: High
As you know, the deposition was to start at 10am. The court reporter, myself and counsel for Albertson’s (Eric Lee) are
all waiting on you.
Regards,
PAUL K. SILVERBERG, ESQ.
SILVERBERG & WEISS, PA
1290 WESTON ROAD, SUITE 218 - WESTON, FLORIDA 33326
t EXHIBIT E954.384.0998 - MAIN | 305.280.0095 - MIAMI | 561.651.0998 - BOCA RATON | 813.803.0998 - TAMPA
954.384.5390 - FAX | 813.200.1005 - FAX | 239.580.5390 - FAX
EMAIL: psilverberg@pkslegal.com | WEB: www.pkslegal.com
SILVERB & WEl
ATTORNEYS AT LAW
ATTENTION: The information contained in this E-mail message [s privileged and confidential Information intended only for the use of the individual(s) named above. If the
reader of this message is not the intended recipient, you are hereby notified that any dissemination, distribution or copy of this communication is strictly prohibited. If you have
recelved this communication in error. please contact the sender by reply E-mail and destroy all copies of the original message. Any tax advice contained in this
communication, including attachments, is not intended or written to be used, and cannot be used by any taxpayer, for the purpose of avoiding penalties under the Internal
Revenue Code or promoting, marketing or recommending to another party any matters addressed herein.
Preview
Filing # 110994798 E-Filed 07/29/2020 04:15:20 PM IN THE CIRCUIT COURT OF THE 177! JUDICIAL CIRCUIT IN AND FOR BROWARD COUNTY, FLORIDA FOOD MARKETING CONSULTANTS, INC. d/b/a SAN BERNARDO, CASE NO. CACE18-000924 (09) Plaintiff, vs. NEW ALBERTSON’S LP f/n/a NEW ALBERTSON’S, INC. Defendants. / PLAINTIFF, FOOD MARKETING CONSULTANTS, INC. D/B/A SAN BERNARDO’S, SECOND MOTION TO COMPEL DEPOSITION AND DOCUMENT PRODUCTION OF NON-PARTY, C&S WHOLESALE GROCERS, INC. Plaintiff, Food Marketing Consultants, Inc., d/b/a San Bernardo (“San Bernardo”), by and through undersigned counsel, and pursuant to the Florida Rules of Civil Procedure, hereby files this Second Motion to Compel Deposition and Production of Documents of Non-Party, C&S Wholesale Grocers, Inc. (“C&S”), and in support states as follows: 1. On April 10, 2020 and April 29, 2020, Plaintiff contacted counsel for C&S to set a date to take the deposition of their corporate representative. Please see attached correspondence incorporated herein as composite Exhibit “A”. 2. On June 4, 2020, after not hearing back from counsel for C&S regarding available dates, Plaintiff chose June 24, 2020 for the deposition. Please see attached Notice of Taking Deposition Duces Tecum attached hereto as Exhibit “B”. *** FILED: BROWARD COUNTY, FL BRENDA D. FORMAN, CLERK 07/29/2020 04:15:20 PM.****CASE NO. CACE18-000924 Motion to Compel 3. On June 5, 2020, C&S was served with the Subpoena Duces Tecum for Deposition. Please see attached Return of Service attached hereto as Exhibit “C”. 4. At no time did counsel for C&S inform Plaintiff that their corporate representative was not available or that they would not be attending the deposition scheduled for June 24, 2020. 5. On June 24, 2020, counsel for Plaintiff and Defendant appeared for the deposition of C&S’ corporate representative, who failed to appear. C&S also failed to provide the documents requested. Please see attached Certificate of Non-Appearance attached hereto as Exhibit “D”. 6. Plaintiff has made numerous attempts, stretching for a period of months, to take the deposition of the corporate representative for C&S, however, C&S has been uncooperative and dilatory. This is preventing Plaintiff from being ready for trial. 7. No less at the hearing on June 23, 2020, they agreed to work with us to produce documents under that pending Motion to Compel related to subpoenaed documents, yet no production or proposal from them as to the open requests, plus no other contact was made by their counsel (no notice of appearance either). Please see attached correspondence incorporated herein as composite Exhibit “E”. 8. As a result of the above, this Motion has been filed and Plaintiff has incurred costs and fees to compel C&S’ deposition and document production. Plaintiff has made attempts to avoid the need of this Motion and seek compliance by C&S. Fees should be awarded to Plaintiff. WHEREFORE, Plaintiff respectfully requests that this Court enter an Order awarding Plaintiff its attomney’s fees and costs against Non-Party, C&S Wholesale Grocers, Inc., compel C&S Wholesale Grocers, Inc. to appear for deposition within thirty (30) days and to provide all requested documents, and any other relief that this Court deems just and proper.CASE NO. CACE18-000924 Motion to Compel Respectfully Submitted, SILVERBERG & WEISS, P.A. Attorneys for Plaintiff 1290 Weston Rd, Suite 218 Weston, Florida 33326 Notices@pkslegal.com (954) 384-0998 tel. (954) 384-5390 fax. By: ___ Paul K. Silverberg Paul K. Silverberg, Esq. Fla. Bar No. 147877 CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing was filed via the Florida Courts E-Filing portal and furnished to Eric Lee, Esq. at lee@leeamlaw.com and Erik Stidham, Esq., efstidham@hollandhart.com; Kevin Gordon, Esq. via e-mail at KGordon@cswg.com and SDuffy@cswg.com and US Mail to 7 Corporate Drive, Keene, NH 03431 on this 29th day of July, 2020. By: ___ Paul K. Silverberg Paul K. Silverberg, Esq.From: Kelly Karge - www.pkslegal.com To: kgordon@cswa.com; Subject: Food Marketing v New Albertsons Date: Friday, April 10, 2020 1:09:00 PM Attachments: image001.if imaae002.cif Importance: High Good Afternoon: We need to schedule the deposition, via video, of the Corporate Representative for C & S (the person with the most knowledge regarding the relationship between C&S Wholesale Grocer, Inc. with New Albertsons and Food Marketing Consultants d/b/a San Bernardo). The representative should have knowledge regarding receiving and placing orders, shipping records and sales. The following dates are available on our calendar: 4/24; 4/27 AM 4/28 PM 5/1 5/6 PM 5/8 AM Please advise by Tuesday, 4/14/20 of your availability on the dates provided and we will clear them with counsel Mr. Lee. We appreciate your attention to this request. Thank you. Kelly Karge Legal Assistant SILVERBERG & WEISS, PA 1290 WESTON ROAD, SUITE 218 - WESTON, FLORIDA 33326 954.384.0998 - MAIN | 305.280.0095 - MIAMI | 561.651.0998 - BOCA RATON | 813.803.0998 - TAMPA 954.384.5390 - FAX | 813.200.1005 - FAX kkarge@pkslegal.com www.pkslegal.com tained in this E-mail ness individual(s) named abov any dissemination ge is privileged and 1 If the reader of S not the intended d this communication in error, please sender by reply E-mail f the original message. Any tax advice contained in this communication, including nded or written to be used, and cannot be used by any taxpayer, for the purpose of avoiding penalties under the Internal Revenue Code or promoting, marketing or recommending to another party any matters addressed herein. EXHIBIT AFrom: Kelly Karge - www.pkslegal.com To: sduffy@cswa.com; kaordon@cswa.com Cc: Kimberly Matyjasik - www.pksiegal.com Subject: FW: Food Marketing v New Albertsons Date: Wednesday, April 29, 2020 4:47:00 PM Attachments: image001.aif imaqe002.aif Importance: High Good Afternoon: On April 10" we requested to schedule the deposition, via video, of the Corporate Representative for C & S (the person with the most knowledge regarding the relationship between C&S Wholesale Grocer, Inc. with New Albertsons and Food Marketing Consultants d/b/a San Bernardo). The representative should have knowledge regarding receiving and placing orders, shipping records and sales. We asked to receive a response by April 14°”, As of this date (4/29) we have not heard back from your office. We must get this deposition scheduled as soon as possible. The following dates are available on our calendar: May 11° AM May 13" all day May 14° all day May 1sth all day May 19°” All day Please respond to our request by providing All dates you are available from the dates provided, as we will be coordinating this deposition with Mr. Lee’s office as well. 7 i 3oth_Thank you very much Kelly Karge Legal Assistant SILVERBERG & WEISS, PA 1290 WESTON ROAD, SUITE 218 - WESTON, FLORIDA 33326 954.384.0998 - MAIN | 305.280.0095 - MIAMI | 561.651.0998 - BOCA RATON | 813.803.0998 - TAMPA 954.384.5390 - FAX | 813.200.1005 - FAX kkarge@pkslegal.com www.pkslegal.com and ft ending to another party any From: Kelly Karge - www.pkslegal.com Sent: Friday, April 10, 2020 1:10 PM To: kgordon@cswg.com; sduffy@cswg.com Subject: Food Marketing v New Albertsons Importance: High Good Afternoon: We need to schedule the deposition, via video, of the Corporate Representative for C & S (the person with the most knowledge regarding the relationship between C&S Wholesale Grocer, Inc. with New Albertsons and Food Marketing Consultants d/b/a San Bernardo). The representative should have knowledge regarding receiving and placing orders, shipping records and sales. The following dates are available on our calendar: 4/24; 4/27 AM 4/28 PM 5/1 5/6 PM 5/8 AM Please advise by Tuesday, 4/14/20 of your availability on the dates provided and we will clear themwith counsel Mr. Lee. We appreciate your attention to this request. Thank you. Kelly Karge Legal Assistant SILVERBERG & WEISS, PA 1290 WESTON ROAD, SUITE 218 - WESTON, FLORIDA 33326 954.384.0998 - MAIN | 305.280.0095 - MIAMI | 561.651.0998 - BOCA RATON | 813.803.0998 - TAMPA 954.384.5390 - FAX | 813.200.1005 - FAX Kkarge@pkslegal.com www.pkslegal.com ATTENTION: rhe i ged and confidential information >f this me, snot the intended © any dissemin ved th E-mail attachments, is not avoiding penalties under the Internal Revenue Code or promoting, marketing or recommending to another party any matters addressed herein.Filing # 108397596 E-Filed 06/04/2020 02:24:13 PM IN THE CIRCUIT COURT OF THE 177! JUDICIAL CIRCUIT IN AND FOR BROWARD COUNTY, FLORIDA CASE NO. CACE18-000924 (09) FOOD MARKETING CONSULTANTS, INC. d/b/a SAN BERNARDO, Plaintiff, vs. NEW ALBERTSON’S LP f/n/a NEW ALBERTSON’S, INC. Defendants. / NOTICE OF TAKING DEPOSITION DUCES TECUM PLEASE TAKE NOTICE that pursuant to Rule 1.310(b)(6) of the Fla. R. Civ. Pro., Plaintiff, by and through undersigned counsel, will take the deposition(s) upon oral examination of the entity named below, on the date and at the time and place indicted: NAME DATE TIME PLACE R. 1.310(b) corporate June 24, 2020 | 10:00am _ | Join OfficeSuite Meeting representative of C&S Wholesale Grocers, Inc. as to https://meeting.windstream.com/j/ Schedule “A” 1128033633 If joining telephonically: 646-741-5292 Meeting ID: 112 803 3633 EXHIBIT BCASE NO. CACE18-000924 (09) The deposition is being taken for discovery purposes, for use at trial, or any other purpose permitted under the applicable Rules of Procedure. The schedule of topics for Deponent is attached hereto as Schedule “A” and the schedule for document requests for Deponent is attached hereto as Schedule “B”. The name and address of the operator is a representative of Executive Reporting Service, 200 Ist Avenue, South, Ste 402, St. Petersburg, FL 33701, telephone number (727) 823-4155. PLEASE GOVERN YOURSELF ACCORDINGLY. Respectfully Submitted, SILVERBERG & WEISS, P.A. Attorneys for Plaintiff 1290 Weston Rd, Suite 218 Weston, Florida 33326 Notices@pkslegal.com (954) 384-0998 tel. (954) 384-5390 fax. By: Paul K. Silverberg Paul K. Silverberg, Esq. Fla. Bar No. 147877 CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing was filed via the Florida Courts E-Filing portal and furnished to Eric Lee, Esq. at lee@leeamlaw.com on this 4" day of June, 2020. By: __ Paul K. Silverberg Paul K. Silverberg, Esq.CASE NO. CACE18-000924 (09) SCHEDULE “A” TOPICS ON WHICH EXAMINATION IS REQUESTED 1. Knowledge of Food Marketing Consultants, Inc. d/b/a San Bernardo product delivery, returns, movement, orders, stocking, inventory and sales related to New Albertson’s LP f/n/a New Albertson’s Inc. (including Safeway or Albertsons and individual stores) from January 1, 2016 to present. 2. Knowledge of communications and documents between C&S Wholesale Grocers, Inc. and New Albertson’s LP f/n/a New Albertson’s Inc. (including Safeway or Albertsons and individual stores), relating to Food Marketing Consultants, Inc., d/b/a San Bernardo from January 1, 2016 to present. 3. Knowledge of business deal or arrangement, including but not limited to stocking fee relating to Food Marketing Consultants, Inc., d/b/a San Bernardo and New Albertson’s LP f/n/a New Albertson’s Inc. (including Safeway or Albertsons and individual stores) from January 1, 2016 to present. 4. Knowledge of shelving plans, plan-o-grams, distribution plans or other plans for the location, timing or quantity of Food Marketing Consultants, Inc., d/b/a San Bernardo products at New Albertson’s LP f/n/a New Albertson’s Inc. (including Safeway or Albertsons and individual stores) from January 1, 2016 to present. 5. Knowledge of all documents and communications relating to the above for the time period January 1, 2016 to present, including the documents on Exhibit B. 6. Knowledge of all charts, documents and spreadsheets previously provided by C&S Wholesale Grocers, Inc. in response to the Plaintiff's Subpoena Duces Tecum for Documents served on June 7, 2019. 7. Knowledge of documents not produced in response to the Plaintiff's Subpoena Duces Tecum for Documents served on June 7, 2019. 8. Knowledge of payments, credits, charges, invoices, setoff, returns, discounts, bill backs and account balances related to Food Marketing Consultants, Inc. d/b/a San Bernardo products at New Albertson’s LP f/n/a New Albertson’s Inc. (including Safeway or Albertsons and individual stores) from January 1, 2016 to present.CASE NO. CACE18-000924 (09) SCHEDULE “B” DOCUMENT REQUEST 1. All communications and documents, including but not limited to orders, purchase orders, inventory inquiry, payment, invoices, store counts and delivery, exchanged between C&S Wholesale Grocers, Inc. and New Albertson’s LP f/n/a New Albertson’s Inc., relating to Food Marketing Consultants, Inc., d/b/a San Bernardo from January 1, 2016 to present. 2. All communications and documents, including but not limited to orders, purchase orders, inventory inquiry, payment, invoices, store counts and delivery, exchanged between C&S Wholesale Grocers, Inc. and Safeway or Albertsons relating to Food Marketing Consultants, Inc., d/b/a San Bernardo from January 1, 2016 to present. 3. All communications and documents, including but not limited to orders, purchase orders, inventory inquiry, payment, invoices, store counts and delivery, exchanged between C&S Wholesale Grocers, Inc. and Food Marketing Consultants, Inc., d/b/a San Bernardo from January 1, 2016 to present. 4. All charts, forecasts, schematics, projections, estimates and inventory records related to Food Marketing Consultants, Inc., d/b/a San Bernardo products from January 1, 2016 to present related to New Albertson’s LP f/n/a New Albertson’s Inc, Safeway or Albertsons. 5. All charts, forecasts, schematics, projections, estimates and inventory records related to Food Marketing Consultants, Inc., d/b/a San Bernardo products from January 1, 2016 to present. 6. All documents reflecting the account balance and history, including the supporting documents for each entry and payments, credits, charges, invoices, setoff, returns, discounts , bill backs and account balances related to Food Marketing Consultants, Inc., d/b/a San Bernardo products at New Albertson’s LP f/n/a New Albertson’s Inc. (including Safeway or Albertsons and individual stores) from January 1, 2016 to present.ERVICE CASE #19-001783-CI 6/5/2020 PLAINTIFE FOOD MARKETING CONSULTANTS, INC. D/B/A SAN BERNARDO vs DEFENDANT NEW ALBERTSON'S LP F/N/A NEW ALBERTSON'S, INC ATTORNEY: PAUL K. SILVERBERG FIRM: SILVERBERG & WEISS, P.A. TO: C&S WHOLESALE GROCERS, INC C/O CT CORPORATION SYSTEM (REGISTERED AGENT) 1200 SOUTH PINE ISLAND ROAD PLANTATION FL 33324 We. received this: SUBPOENA DUCES TECUM FOR DEPOSITION OF CORPORATE REPRESENTIVE OF NON-PARTY C & S WHOLESALE GROCERS, INC. PURSUANT TO RULE / NOTICE OF TAKING DEPOSITION DUCES TECUM On: 6/4/2020 At: 3:00 PM This process was served to the above named Corporation/Sole Proprietorship or Individual named, by delivering a true copy of the: SUBPOENA DUCES TECUM FOR DEPOSITION OF CORPORATE REPRESENTIVE OF NON-PARTY C & S WHOLESALE GROCERS, INC. PURSUANT TO RULE / NOTICE OF TAKING DEPOSITION DUCES TECUM Type of service is: CORPORATE Accepted By: CT CORPORATION SYSTEM (CONTACT DONNA MOCH) Title: MANAGER On: 6/5/2020 At: 2:45 PM Comments: Affiant states upon information and belief that said person is not in the Military Service of the United States as the term defined in either the state or Federal Statues. I certify that I am of legal age, I have no interest in the above action and I am authorized to serve this process. FS 92.525. Under penalities of perjury, I declare that I have read the forgoing (Document) and that the facts in it are true, MCKIE ROCESS SERVER # 1369 RY COUNTY, FLORIDA SILVERBERG & WEISS, P.A. 1920 WESTON RD. SUITE 218 WESTON FL 33326 Our Control # 22145 EXHIBIT CPage 1 IN THE CIRCUIT COURT OF THE SEVENTEENTH JUDICIAL CIRCUIT OF THE STATE OF FLORIDA, IN AND FOR BROWARD COUNTY, FLORIDA CASE NO.: 15-010295-CI FOOD MARKETING CONSULTANTS, INC. d/b/a SAN BERNARDO, Plaintiff, vs. NEW ALBERTSON'S LP f/n/a NEW ALBERTSON'S, INC., Defendants. CERTIFICATE OF NON-APPEARANCE I, Kelley N. Black, Registered Professional Reporter, Notary Public, State of Florida at Large: DO HEREBY CERTIFY that I appeared at 10:00 a.m. on the 24th day of June, 2020, on a scheduled Office Suite HD Meeting online for the purpose of taking the Deposition of the CORPORATE REPRESENTATIVE of C&S Wholesale Grocers, Inc. in the above-entitled action, pursuant to Notice of Taking Deposition, that the hour of 10:35 a.m. having arrived, said CORPORATE REPRESENTATIVE did not appear. DATED this 24th day of June, 2020 Kan Soon 4 , Sr Executive Reporting Service EXHIBIT D Electronically signed by Kelley Simpson (601 -256-319-2392) 37ceGeeb-4609-437a-a58c-ae3d22e5efcgPaul Silverberg www.pkslegal. om From: Paul Silverberg - www.pkslegal.com Sent: Wednesday, June 24, 2020 10:39 AM To: ‘kgordon@cswg.com’; 'bhewes@cswg.com' Subject: RE: Waiting - Deposition of C&S As we have not heard back from you and its been over 35m since the deposition was scheduled to start, we informed the clerk to issue an CNA. Obviously we want to get this deposition done (and prefer to avoid the court’s involvement), let me know alternative dates for the deposition. Also, we need to discuss responsive documents per the hearing yesterday. | have availability on Friday, if that is a good time for you. Regards, PAUL K. SILVERBERG, ESQ. SILVERBERG & WEISS, PA 1290 WESTON ROAD, SUITE 218 - WESTON, FLORIDA 33326 954.384.0998 - MAIN | 305.280.0095 - MIAMI | 561.651.0998 - BOCA RATON | 813.803.0998 - TAMPA 954.384.5390 - FAX | 813.200.1005 - FAX | 239.580.5390 - FAX EMAIL: psilverberg@pkslegal.com | WEB: www.pkslegal.com ATTENTION: The information contained in this E-mail message [s privileged and confidential information intended only for the use of the individual(s) named above. If the reader of this message is not the intended recipient. you are hereby notified that any dissemination, distribution or copy of this communication is strictly prohibited. If you have recelved this communication in error, please contact the sender by reply E-mail and destroy all copies of the original message. Any tax advice contained in this communication, including attachments, is not intended or written to be used, and cannot be used by any taxpayer, for the purpose of avoiding penalties under the Internal Revenue Code or promoting, marketing or recommending to another party any matters addressed herein. From: Paul Silverberg - www.pkslegal.com Sent: Wednesday, June 24, 2020 10:15 AM To: kgordon@cswg.com; bhewes@cswg.com Subject: Waiting - Deposition of C&S Importance: High As you know, the deposition was to start at 10am. The court reporter, myself and counsel for Albertson’s (Eric Lee) are all waiting on you. Regards, PAUL K. SILVERBERG, ESQ. SILVERBERG & WEISS, PA 1290 WESTON ROAD, SUITE 218 - WESTON, FLORIDA 33326 t EXHIBIT E954.384.0998 - MAIN | 305.280.0095 - MIAMI | 561.651.0998 - BOCA RATON | 813.803.0998 - TAMPA 954.384.5390 - FAX | 813.200.1005 - FAX | 239.580.5390 - FAX EMAIL: psilverberg@pkslegal.com | WEB: www.pkslegal.com SILVERB & WEl ATTORNEYS AT LAW ATTENTION: The information contained in this E-mail message [s privileged and confidential Information intended only for the use of the individual(s) named above. If the reader of this message is not the intended recipient, you are hereby notified that any dissemination, distribution or copy of this communication is strictly prohibited. If you have recelved this communication in error. please contact the sender by reply E-mail and destroy all copies of the original message. Any tax advice contained in this communication, including attachments, is not intended or written to be used, and cannot be used by any taxpayer, for the purpose of avoiding penalties under the Internal Revenue Code or promoting, marketing or recommending to another party any matters addressed herein.