communications between the law firm Culley Marks and Empire and between Culley Marks and
Barry and Leacy. (document production request numbers 6-8). Foodcomm believes that Barry
and Leacy are withholding documents based on their belief that the communcations are protected
by the attorney-client privilege. Defendants claim that they have already produced all documents
in their possession pertaining to request numbers 7 and 8 and Defendants state that they are not
withholding any documents relating to the requests on the basis that there is an attorney-client
privilege between Culley Marks and Barry or Culley Marks and Leacy. Therefore in regards to
the July 18, 2003 motion to compel, we deny the motion to compel responses to document
request numbers 7 and 8 as moot.

Request number 6 seeks the production of communications between Empire and Culley
Marks relating to Barry, Leacy or Outback. Foodcomm contends that since Empire has produced
some documents pertaining to request number 6, Empire has waived the attorney-clicnt privilege
for all documents pertaining to request number 6. Although, Empire has produced some non-
privileged documents relating to request number 6, that does not mean that Empire has waived
the attorney-client privilege for all privileged communications pertinent to request number 6.

Foodcomm also claims with respect to request number 6, that the attorney-client privilege
is deemed to be waived under the crime-fraud exception. The attorney-client privilege is deemed
to be waived if the clicnt consults an attorney in order to further a crime or fraud. United States
v, Davis, 1 F.3d 606, 609 (7" Cir, 1993); U.S. v, Aldridge, 484 F.2d 655, 658 (7" Cir. 1973);
Nobelpharma AB y, Implant Innovations, Inc., 930 F.Supp.1241, 1260 (N.D. Ill. 1996). The

exception is not applicable if the party is seeking legal advice or legal assistance regarding a

crime or fraud and the exception is not applicable simply because the communications relate to a



'V. September 8, 2003, Motion to Compel

Foodcomm also filed a motion to compel on September 8, 2003, secking to compel
Empire to answer document production request number 34 from its first set of document requests
and document production number 1 from its fourth sct of document requests. Foodcomm seeks
the production of documents relating to any redistribution agreements with any company.
Foodcomm also seeks the production of documents relating to each of Empire’s redistribution
partners. Empire claims that it has entered into a redistribution agreement with only one
commodity meat supplier, ConAgra, and Empire claims that it has produced all documents
relating to the agreement, Foodcomm contends that it should have access to other third party
agreements thal Empire entered into in order to compare the structure of the other agreements
and calculate damages. However, Empire points out that these other agreements do not involve
the import of meat. For cxample, Empire cntered into agreements concerning products such as
Campbell’s Soup and Very Fine Fruit Juice. Although, the scope of discovery is broad, we agrec
with Empire that Foodcomm is not entitled to the production of these completely unrelated third
party agreements. We are not convinced that any of the other third party agreements would be
relevant in this case. Any usage of the other agreements to calculate damages would be
questionable and to the minute degree that they may possibly offer any assistance in damage
calculations, the benefit to Foodcomm is greatly outweighed by the detriment to Empire.
Particularly since Foodcomm is a competitor of Empire, it would be unreasonable to allow
Foodcomm to view the agreements that Empire entered into with other companies unless

Foodcomm has a legitimate reason to do so, Therefore, we deny Foodcomm’s motion to compel


are specifically mentioned. In order to prevent any misunderstanding between the parties, we
shall order Defendants to produce all communications between Defendants and Fleet Bank that
in any way relate to Barry, Leacy, or Outback Imports, whether or not the parties are specifically
mentioned in the communications.

Defendants also objected to the production of documents relating to numbers 25-28
because they claim that the requests are overly broad and seek irrelevant documents that are
confidential. In the requests, Foodcomm seeks production of all communications between
Empire and Fleet Bank relating to the $35 million revolving facility Empire established with
Fleet Bank, the $4 million term loan established with Fleet Bank, and the $39 million secured
credit facility established with Fleet Bank, Foodcomm also seeks in request number 28 to
compel production of all communications between Empire and Fleet Bank.

Foodcomm presents as an exhibit an email from Steven Levine, President of Empire, to
Barry and Leacy. In the email Steven Levine stated that he was recruiting Fleet Bank to finance
Outback Imports, Foodcomm contends that the email and subsequent documents produced by
Defendants are evidence that Foodcomm’s request numbers 25-28 seek relevant documents. We
agree with Defendants that the requests are overly broad which will allow Foodcomm to peruse
confidential Empire business documents which are mostly irrelevant documents. Although the
scope of discovery is broad, Foodcomm has no right to view all communications between Empire
and Fleet Bank, particularly regarding transactions that have little or no bearing on this case.
Therefore, in regards to the July 18, 2003, motion to compel we deny the motion to compel

responses to document request numbers 25-28.

In the July 18, 2003 motion to compel, Foodcomm also sceks the production of



ot

crime or fraud. Nobelpharma AB, 930 F.Supp. al 1260. Also, the crime-fraud exception can
only be used to picrce the attorney-client privilege if the party seeking production presents
“prima facie evidence that [the allegations of crime or fraud] have some foundation in fact” and
the evidence is sufficient “to give colour to the charge... .” Davis, 1 F.3d at 609, Foodcomm
has not met its burden of showing that the crime-fraud exception is applicable. We are not
convinced that the communications sought in request number 6 were made in the furtherance of
the alleged fraud against Foodcomm.

We note that in the instant motion to compel Foodcomm does not focus on whether or not
the communications are privileged. Instead, Foodcomm argues that the privilege was waived and
that the fraud-crime exception applies. We deny the motion to compel responses to document
request number 6. However, we are not barring Foodcomm from claiming that the
communications are not privileged communications. If Foodcomm discovers evidence that
would suggest that the withheld communications pertaining to request number 6 are not
communications that fall within the scope of the attorney-client privilege, then Foodcomm is still

free to seek production and, if necessary, file another motion to compel those communications.

IIL. Motion to File Second Amended Complaint

Foodcomm also seeks leave to file a second amended complaint. Leave shall be given
freely to amend a complaint after a responsive pleading is filed if justice so requires. Fed R. Civ.
P, 15(a). However, leave to amend is “inappropriate where (here is undue delay, bad faith,
dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments

previously allowed, undue prejudice to the opposing party by virtue of allowance of the



filed on September 8, 2003, seeking production of documents relating to distribution agrcements.

CONCLUSION

Based on the foregoing analysis, we deny Foodcomm’s motion for civil contempt
sanctions, We deny l’oodcomm’s motion to compel the production of documents relating to
Culley Marks. In regards to Foodcomm’s motion to compel the production of documents
relating to Fleet Bank, we grant the motion in part. Defendants are ordered to produce all
communications between Defendants and Flect Bank that relate to Barry, Leacy, or Outback
Imports, regardless of whether the parties are specifically mentioned in the documents. We deny
Foodcomm’s motion for leave to file a second amended complaint. We deny Foodcomm’s
motion to compel the production of documents relating to redistribution agreements. Foodcomm
also filed an emergency motion to compel on October 27, 2003, seeking to compel the deposition
of Steven Levine. The parties have since discussed this matter in court and set an agreed

deadline for the deposition and therefore, we deny the emergency motion to compel as moot.

Samuel La pin ‘ y

United States District Court Judge

Dated: December 19, 2003



a

Mina Order For (087)

United States District Court, Northern District of Tlinois

‘Name of Assigned Judge
or Magistrate Judge

Sitting Judge if Other

Samuel Der-Yeghiayan than Assigned Judge

CASE NUMBER 02 C 7268 DATE 12/19/2003
__ —_
CASE FoodComm Intl vs. Patrick Barry
TITLE
Lin the following box (a) indicute the party filing the motiun, c.g... plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nalurc

MOTION: of the motion being presented.]

DOCKET ENTRY:

( a Filed motion of [ use listing in “Motion” box above.}

Q@ a Brief in support of motion due

(3) im Answer brief to motion due__ __. Reply to answer briefduc____

(4) o Ruling/Hearing on____sset ffor__—_att _

(5) Q Status hearing{held/continued to] [set for/re-set for]on__—setfor = ats

(6) QO Pretrial conference(held/continued to] [set for/re-sct for] on _setfor at.

es) Go Trial[set for/re-set for}on_ at.

(8) Oo {Bench/Jury trial] [Hearing] held/continued to __—_saat___.

(9) o This case is dismissed [with/without] prejudice and without costs[by/agrcement/pursuant to}

OCOFRCPA(m) Local Rule 41,1 CFRCP4) (ai) OO FRCP41(a)(2).
(10) WM [Other docket entry] For the reasons stated on the attached memorandum opinion, the Court hereby
denies plaintiff’s motions for civil contempt sanctions [59-1] and to compel the production of documents
relating to Culley Marks, In regards to the plaintiff's motion to compel production of documents relating
to Fleet Bank [69-1], the Court hereby grants in part and denies in part the motion. Furthermore, the Court
denies plaintiff's motions for leave to file a second amended complaint (72-1] and to compel the
production of documents relating to redistribution agreements [77-1]. Plaintiff's emergency motion to
take the deposition of Steven Levine [91-1] is denied as moot. Enter Memorandum Opinion.
ai) {For further detail sec memorandum opinion attached to the original minute order.]
No notices required, advised in apen court. fi Docurient
No notices required. suber foie Number
Notices mailed by judge's staff.
Notified counsel by telephone, 0

wo | Docketing to mail notices,
Mail AQ 450 form, LYNOD LIGLS19 sn"
Copy to judge/magistrate judge. Neem

(O99 WY 61 T3utu

gate mailed notice
courtroom

deputy's
initials

MW

central Clerk's Office rusiling deputy initials



amendment, or futility of the amendment.” Villa v. City of Chicago, 924 F.2d 629, 632 (7" Cir.
1990). In the proposed amended complaint Foodcomm seeks to add six new defendants.
Foodeomm could have filed an amended complaint which included the new defendants long ago.
Foodcomm offers no explanation for this delay, Instead, Foodcom inexplicably claims that
Defendants will not be prejudiced because this case is only in the “preliminary stage.” ‘his case
was filed on October 10, 2002. Granted, there was an interim appeal in this case. However, that
limited period does not justify Foodcomm’s inaccurate characterization of the status of this casc.
Discovery is set to close in about a month. Dates for dispositive motions have been set.
Defendants have already taken the depositions of Foodcomm’s two principals and the partics are
currently preparing to conclude all remaining discovery. It is ludicrous to suggest that this case is
in the preliminary stage now, or even that it was so at the time of the filing of the motion to
amend on September 11, 2003, These amendments could and should have been made sooner and
there is evidence of a dilatory motive on the part of Foodcomm.

Foodcomm argues that delay alone is an insufficient reason to deny leave to amend a
complaint. While that is true, delay is a sufficient reason if prejudice can be shown resulting
from the delay. King v. Cooke, 26 F.3d 720, 723 (7" Cir. 1994). Also, the longer the delay “the
greater the presumption against granting leave to amend . . . [and| extreme delay itself may be
considered prejudicial.” /d. (quoting Tamari vy. Bache & Co., 838 F.2d 904, 908 (7" Cir. 1988).
We are convinced that if we were to allow a second amended complaint to be filed at this
juncture the Defendants would be unduly prejudiced. We also note that Foodcomm was already
granted leave to amend its complaint once on October 30, 2002. Therefore, we deny

Foodcomm’s motion for Icave to file its second amended complaint.


IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS eETED
EASTERN DIVISION mh ET
pEC 2 2 2003
FOODCOMM INTERNATIONAL,
Plaintiff,

v. No. 02 C 7268
PATRICK JAMES BARRY,
CHRISTOPHER PAUL LEACY, and
OUTBACK IMPORTS, INC., and
EMPIRE BEEF COMPANY, INC.,

wee ee eS SS

Defendants.

MEMORANDUM OPINION

SAMUEL DER-YEGHIAYAN, District Judge

This matter is before the court on Plaintiff Foodcomm’s (“Foodcomm”) motion for civil
contempt and sanctions against Defendants Patrick James Barry (“Barry”) and Christopher Paul
Leacy (“Leacy”). Foodcomm has also filed a motion to compel the production of documents
relating to Fleet Bank and Culley Marks, a motion for leave to file a second amended complaint,
a motion to compel the production of documents relating to redistribution agreements, and an
emergency motion to compel the deposition of Steven Levine. We grant the above motions in

part and deny them in part.

L Motion for Civil Contempt Sanctions

Foodcomm contends that Barry and Leacy violated the terms of the preliminary


injunction order issued by Judge Coar on November 12, 2002, Foodcomm claims that Barry and
Leacy should be held in contempt because after November 12, 2002, they operated their own
business at the samc location that they used when working for Defendant Empire Beef Company,
Inc. (“Empire”) and because they purchased meat from Empire. Judge Coar stated in his
November 12, 2002 order that Barry and Leacy are “enjoined from directly or indirectly
providing services of any kind to or for Empire Beef, Inc., its affiliates or agents.” ‘The order
similarly prohibited Barry and Leacy from providing services to Outback Imports.

Judge Coar’s injunction order prohibited Barry and Leacy from providing scrviccs to
Empire and Outback Imports. It did not prevent them from operating their own business and
purchasing meat [rom Empire or from working for other employers and purchasing bee! from
Empire. In regards to the location of their business which is now leased by Barry’s and Leacy’s
new employer, Colorado Foods, nothing in Judge Coar’s order prohibited Barry and Leacy from
operating at the same location as long as they are not providing services to Empire or Outback

Imports. Therefore, we deny the motion for civil contempt and for sanctions.

IL July 18,2003. Motion to Compel

On July 18, 2003, Foodcomm also filed a motion to compel the production of Fleet Bank
and Culley Marks documents. Foodcomm first contends that Defendants have not properly
responded to inquiries relating 10 communications between Defendants and Flect Bank.
(document production request numbers 21-28). Defendants claim that they already produced all
the documents in their possession that are requested in numbers 21-24. However, Foodcomm is

concerned that Defendants only submitted documents in which Barry, Leacy, or Outback Imports