UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

COUPLED PRODUCTS, LLC,

Plaintiff, CIVIL ACTION NO. 09-CV-12081

 vs. DISTRICT JUDGE DENISE PAGE HOOD

COMPONENT BAR MAGISTRATE JUDGE MONA K. MAJZOUB

PRODUCTS, INC.,

Defendant.

 /

ORDER GRANTING IN PART DEFENDANT COMPONENT BAR PRODUCTS, INC.’S 

MOTION TO COMPEL (DOCKET NO. 39)

This matter is before the Court on Defendant Component Bar Products, Inc.’s Motion to

Compel filed on March 4, 2011. (Docket no. 39). Plaintiff Coupled Products, LLC, filed a

Response To Component Bar Products, Inc.’s Motion To Compel on March 25, 2011. (Docket no.

42). Defendant filed a Reply on April 4, 2011. (Docket no. 43). The parties filed a Joint Statement

Of Unresolved Issues on April 12, 2011. (Docket no. 46). This matter was referred to the

undersigned for decision pursuant to 28 U.S.C. § 636(b)(1)(A). (Docket no. 41). On April 19, 2011

the Court heard oral argument on both matters. The matter is ready for ruling.

1. Facts and Claims

Plaintiff brings this action against its supplier Defendant and makes claims for breach of

contract, anticipatory repudiation, unjust enrichment/quantum meruit, conversion and claim and

delivery. (Docket no. 1). Plaintiff makes and supplies automotive hose and tube assemblies and

Defendant makes and supplies machined automotive components. In 2001 Dana Corporation began

ordering products from Defendant pursuant to a purchase order. In May 2008 Coupled Products

Acquisition Company (later Plaintiff Coupled Products, LLC) entered into an asset purchase

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agreement with Dana Corporation. In September 2007 Plaintiff commenced operations and alleges

that it sent a revised purchase order to Defendant with its new contractual terms and conditions and

that Defendant began shipping its product. Plaintiff alleges that the final purchase order contains

the payment term "Net 60 Days."

Plaintiff alleges that on January 7, 2009 Defendant unilaterally notified Plaintiff via

telephone that Defendant would not continue to deliver parts unless Plaintiff made full

cash-in-advance payment on all outstanding and future invoices associated with the purchase order

prior to shipping. (Docket no. 1 ¶ 24). Plaintiff argues that as a result Plaintiff was required to

contract for production and delivery of the parts from two other suppliers and that Plaintiff's

damages are more than $150,000. 

Defendant filed a counter-claim and argues that its invoice(s) to Plaintiff contain a "Net 30

Days" payment term. (Docket no. 9 ¶ 9). Defendant alleges that during 2008 and 2009 Plaintiff

failed to timely pay many of Defendant's invoices which resulted in a "growing account payable." 

(Docket no. 9 ¶ 11). Defendant alleges that it made repeated demands that Plaintiff make payments. 

Defendant alleges that Plaintiff's failure to timely pay was a breach and that Plaintiff failed to cure

its breach. Defendant brings claims for breach of contract and account stated. Defendant alleges

that Plaintiff owes $348,071.97, excluding interest. 

On June 3, 2010 Defendant served its First Set of Interrogatories and Requests for Production

of Documents. Plaintiff responded on July 2, 2010. Issues related to this discovery were before the

Court in November 2010. Defendant now seeks to compel the deposition of one of Plaintiff’s

owners, Brad Ginsberg, and compel business records. 

2. Analysis

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At the hearing, the parties stated on the record that they had resolved all issues related to the

discovery requests which were Interrogatory Nos. 7 and 9 and Requests to Produce Documents Nos.

3 and 6. Plaintiff will produce documents relating to internal costs and costs to cover and will

produce the TRW RFQ, shipping receipts if they are separate from invoices, the correspondence

files of individuals enumerated on the record with internal costs dedicated to the alleged breach, and

documents supporting internal labor costs. Defendant has raw material that belongs to Plaintiff and

Defendant will produce all invoices from Precision Kidd related to the raw material. The Court

orders the same to be produced within 14 days of entry of this order. 

The only remaining issue in Defendant’s motion is the deposition of Brad Ginsberg. 

Pursuant to Fed. R. Civ. P. 26(b)(1): "Parties may obtain discovery regarding any nonprivileged

matter that is relevant to any party's claim or defense . . . . For good cause, the court may order

discovery of any matter relevant to the subject matter involved in the action. Relevant information

need not be admissible at the trial if the discovery appears reasonably calculated to lead to the

discovery of admissible evidence." Fed. R. Civ. P. 26(b)(1).

"On motion or on its own, the court must limit the frequency or extent of discovery otherwise

allowed by these rules or by local rule if it determines that: (i) the discovery sought is unreasonably

cumulative or duplicative, or can be obtained from some other source that is more convenient, less

burdensome, or less expensive; . . . or (iii) the burden or expense of the proposed discovery

outweighs its likely benefit, considering the needs of the case, the amount in controversy, the parties'

resources, the importance of the issues at stake in the action, and the importance of the discovery

in resolving the issues." Fed. R. Civ. P. 26(b)(2)(c)(i), (iii). 

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Defendant argues that Ginsberg's testimony is relevant because on January 11, 2009

Ginsberg sent an email responding to an email from Defendant Component in which Defendant

advised that is was withdrawing all credit as of January 1, 2009 and was requiring all future releases

to be prepaid. (Docket no. 39). Ginsberg responded in an email dated January 11, 2009 advising

that he (Ginsberg) was the "owner of Coupled Products” and that Defendant Component was

breaching their agreement and Coupled intended to hold Component liable for the breach and any

resulting damages. (Docket nos. 39 p. 8 of 17, 39-1). Defendant also alleges that a Mr. Kochran

admitted in deposition that Mr. Ginsberg was involved with the decision to resource Component

Bar. (Docket no. 39 p. 12 of 17). 

Defendant argues that Mr. Ginsberg may have information relevant to the issue of the

damage Plaintiff Coupled alleges it incurred as a direct result of being placed on cash advance and

regarding why Ginsberg "chose not to respond to Mr. Pohlman's offer of an exit plan and voluntarily

subjected Coupled to its claimed consequential damages instead of just paying cash in advance." 

Defendant argues that these issues go to Defendant's principal defense, failure to mitigate.

Plaintiff Coupled argues that Mr. Ginsberg is not an employee of Plaintiff Coupled but is,

instead, a member of an LLC private equity firm that has an indirect ownership interest in Plaintiff

Coupled. According to Plaintiff, Ginsberg and partner David Sinclair are the only members in SG

Industries, LLC (SG). SG is the sole member of CPA Acquisitions, LLC. CPA Acquisitions, LLC

is the sole member of Plaintiff Coupled Products. This "indirect" ownership interest which Plaintiff

describes is more direct than Plaintiff intimates. A look into each of the various entities reveals that

Ginsberg still appears at the heart of Coupled Products. Although Ginsberg alleges limited

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knowledge of the contract between Coupled and Component Bar (docket no. 45-2) there is evidence

Ginsberg was involved in management decisions, which is relevant to the mitigation issue. 

Plaintiff also argues that the "apex doctrine" applies in which "Courts will protect individuals

at the 'apex' of a corporate hierarchy from deposition when such individuals lack personal

knowledge regarding the litigation, or when the requested information could be garnered from

equally or more knowledgeable subordinates." Jones Co. Homes, LLC v. Laborers Intern. Union

of North America, 2010 WL 5439747 at *2 (E.D. Mich. Dec. 28, 2010). 

The cases cited by Plaintiff to argue that Mr. Ginsberg should not be deposed are

distinguishable. Here, Ginsberg had at least minimal direct involvement with the issue at bar and

there is no evidence that Defendant seeks to depose Ginsberg in bad faith. See Bush v. Dictaphone

Corp., 161 F.3d 363, 367 (6th Cir. 1998); Lewelling v. Farmer's Ins. Of Columbia, Inc., 879 F.2d

212, 218 (6th Cir. 1989). Ginsberg inserted himself into the facts underlying this matter when he

sent the email representing the company as its "owner." There is a basis for finding that Ginsberg

has unique information that cannot otherwise be obtained regarding his own role in the actions

leading up to the case at bar and related to Defendant's defenses. The deposition is likely relevant

to the claims and defenses in this action and is reasonably calculated to lead to the discovery of

admissible evidence. 

Ginsberg's declaration that he is a busy man working seven days a week and traveling

extensively is not a compelling reason for foregoing or limiting his deposition. See Horsewood v.

Kids R Us, 1998 WL 526589 at *7 (D. Kan. Aug. 13, 1998) ("Most deponents are busy. Most

depositions involve some disruption of work or personal business."). 

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“It is within the discretion of the court to designate the location for a taking of depositions,

and each application must be considered on its own facts and equities.” See Farquhar v. Shelden,

116 F.R.D. 70, 72 (E.D. Mich. 1987) (citing Terry v. Modern Woodman of America, 57 F.R.D. 141

(W.D.Mo.1972)). Despite Plaintiff’s argument that Ginsberg lives and has a business office in

Northbrook, Illinois, Plaintiff has not shown good cause for a protective order to issue regarding the

location of the deposition. See El Camino Resources, Ltd. v. Huntington Nat. Bank, 2008 WL

2557596 at *3 (W.D. Mich. June 20, 2008). Michigan is Plaintiff's choice of forum, Michigan is

the location of Plaintiff and Mr. Ginsberg is Plaintiff's owner and there is evidence that Mr. Ginsberg

travels to Michigan on business. (Docket no. 42 p. 7 of 12). The Court will order the deposition to

go forward in Michigan at Plaintiff's counsel's office. The deposition will not exceed four hours,

a term Defendant agreed to prior (docket no. 43-1), and will be completed in one day as allowed

under Fed. R . Civ. P. 30(d)(1). 

Attorneys fees will not be awarded to either party. Fed. R. Civ. P. 37(a)(5)(A)(iii). 

IT IS THEREFORE ORDERED that Defendant Component Bar Products, Inc.’s Motion

To Compel (docket no. 39) is GRANTED in part as set forth herein and Brad Ginsberg is to appear

for deposition at Plaintiff’s counsel’s office in Michigan on or before May 16, 2011 and Plaintiff

will produce within fourteen days of entry of this Order the documents agreed to and set forth

herein.

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NOTICE TO THE PARTIES

Pursuant to Fed. R. Civ. P. 72(a), the parties have a period of fourteen days from the date of

this Order within which to file any written appeal to the District Judge as may be permissible under

28 U.S.C. § 636(b)(1).

Dated: April 25, 2011 s/ Mona K. Majzoub 

MONA K. MAJZOUB

UNITED STATES MAGISTRATE JUDGE

PROOF OF SERVICE

I hereby certify that a copy of this Order was served upon Counsel of Record on this date.

Dated: April 25, 2011 s/ Lisa C. Bartlett 

Case Manager

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