Retzlaff Grain Company, Inc. v. Eggli

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEBRASKA RETZLAFF GRAIN COMPANY, INC., Plaintiff, 8:20CV289 vs. ORDER JORDAN EGGLI, CHAD NEEDHAM, CRYSTAL KONECKY, ROBB KIGER, and NORAG LLC, Defendants. This matter is before the Court following a telephone conference held with counsel for the parties on January 24, 2023. Defendants requested that the Court order Plaintiff to identify the confidential information and trade secrets that it asserts Defendants improperly retained and utilized with more specificity. The parties’ arguments and documents submitted to the Court in advance of the conference are attached to this Order. After review of the parties’ submissions and after hearing arguments from counsel, the Court overruled Defendants’ request on the record and found Plaintiff’s answers to the disputed interrogatories was sufficient under Federal Rule of Civil Procedure 33(d). IT IS SO ORDERED. Dated this 24th day of January, 2023. BY THE COURT: s/Michael D. Nelson United States Magistrate Judge IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEBRASKA RETZLAFF GRAIN COMPANY, INC. ) D/B/A RFG LOGISTICS, INC. ) Case No. 8:20-cv-00289-RFR-MDN ) Plaintiff, ) ) vs. ) ) JORDAN EGGLI, et al., ) ) Defendants. ) DEFENDANTS’ POSITION STATEMENT REGARDING INSUFFICIENT IDENTFICATION OF CONFIDENTIAL INFORMATION AND TRADE SECRETS Plaintiff Retzlaff Grain Company, Inc. (“RFG”) brought this action against four of its former employees (Eggli, Needham, Konecky, and Kiger) and NORAG, LLC (“NORAG”), which is the company that now employs them. See generally, Doc. #89 Second Amended Complaint. The crux of Plaintiff’s claims is that the individual Defendants retained and utilized Plaintiff’s confidential information and trade secrets to the benefit of Defendant NORAG. Id. Defendants issued interrogatories to Plaintiff which asked Plaintiff to identify the confidential information and trade secrets that Plaintiff asserts Needham, Eggli, Kiger, and Konecky retained and utilized in order to solicit customers and employees away from RFG or that benefitted NORAG. Plaintiff’s response regarding Kiger and Konecky is attached here as Exhibit 1. It largely parrots the allegations in the Second Amended Complaint. Plaintiff’s response regarding Eggli and Needham is attached as Exhibit 2. It provides a few “categories” and states, “specific identification of trade secrets misappropriated from the above-mentioned categories are provided pursuant to Federal Rule of Civil Procedure 33(d), by reviewing documents produced by Plaintiff from which this answer can be ascertained . . . [t]hese documents will be produced on a rolling basis.” Plaintiff has now produced 49,624 documents totaling 139,487 pages, or even more pages if excel spreadsheets are counted as more than one page.1 When receiving the bulk of the production, counsel for Defendants reviewed a sample and could not decipher any relevance or responsiveness for documents produced. Correspondence regarding defense counsel’s attempts to reconcile this issue is attached as Exhibit 3. Plaintiff’s counsel has now provided a spreadsheet identifying what request for production the documents are responsive to which does not appear to resolve any issue pertaining to the identification of confidential information or trade secrets. Given the breadth of the production, the interrogatory responses require more specificity. See e.g., Bancorp Servs., L.L.C. v. Hartford Life Ins. Co., 2002 WL 32727076 , at *3 (E.D. Mo. Feb. 25, 2002). (A party cannot rest on document dumps with corresponding discovery responses that simply “describe[ ] the documents that they contend contain trade secret information.” This is especially true when “it is evident that the documents . . . do not all contain trade secret information.”); Porous Media Corp. v. Midland Brake Inc., 187 F.R.D. 598, 600 (D. Minn. 1999) (“Ordering the listing of trade secrets at the outset of the litigation is a common requirement. Failure to identify the trade secrets with sufficient specificity renders the Court powerless to enforce any trade secret claim.”). Counsel for Defendants requested that Plaintiff supplement its interrogatory responses to identify by bates number, or information within the document where necessary, the Confidential Information or trade secrets it asserts Defendants improperly retained and utilized. Plaintiff maintains that no supplementation is warranted. 1 Over 98% of the documents were produced over two years after the initial discovery responses were served, in the Fall of 2022. IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEBRASKA RETZLAFF GRAIN COMPANY, INC. d/b/a Case No. 8:20-cv-00289-LSC-MDN RFG LOGISTICS, INC. Plaintiff, PLAINTIFF’S SUPPLEMENTAL vs. ANSWERS AND OBJECTIONS TO DEFENDANTS’ SECOND NORAG, LLC, et al., INTERROGATORIES TO PLAINTIFF Defendants. TO: Defendants Jordan Eggli, Chad Needham, Crystal Konecky, Robb Kiger, and NORAG, LLC, by and through their counsel of record. Plaintiff Retzlaff Grain Company, Inc. d/b/a RFG Logistics, Inc. (“RFG” or “Plaintiff”), by and through its attorneys, hereby serves its supplemental written responses to Defendants Jordan Eggli (“Eggli”), Chad Needham (“Needham”), Crystal Konecky (“Konecky”), Robb Kiger (“Kiger”), and NORAG, LLC (“NORAG”) (jointly “Defendants”) Second Interrogatories to Plaintiff pursuant to Fed. R. Civ. P. 33 and the Court’s Order [Doc. #129] dated September 2, 2022. Discovery is ongoing and Plaintiff reserves the right to supplement or amend these answers. GENERAL OBJECTIONS 1. Plaintiff generally objects to all Interrogatories referring to the “Amended Complaint” to the extent such references refer to the First Amended Complaint on the grounds that that the First Amended Complaint has been superseded by the Second Amended Complaint. The First Amended Complaint and the allegations set forth therein are a nullity and Interrogatories directed to the First Amended Complaint are therefore not reasonably calculated to lead to the discovery of admissible evidence nor proportional to the needs of the case. All answers set forth herein are made without reference to the First Amended Complaint. 2. Plaintiff objects to the Interrogatories to the extent they seek information and documents that are protected from disclosure by the attorney-client privilege or other applicable legal privileges. Privileged information will not be disclosed. In the event any attorney-client privileged communication or document is disclosed, such disclosure or production is purely inadvertent and not a knowing or intentional waiver of the attorney-client privilege and shall not be deemed to be a waiver. 3. Plaintiff objects to the Interrogatories to the extent they seek information or documents prepared in anticipation of litigation or for trial by Plaintiff or their representatives, and that contain the work product, mental impressions, conclusions, opinions, or legal theories of Plaintiff’s legal counsel or other representatives. Such information will not be disclosed or produced. In the event any information or document protected by the work product doctrine is disclosed or produced, such disclosure or production is purely inadvertent and not a knowing or intentional waiver of such privilege and shall not be deemed to be a waiver. CONFIDENTIAL – SUBJECT TO PROTECTIVE ORDER INTERROGATORIES INTERROGATORY NO. 1: Identify the person(s) providing information or answers to these interrogatories. If there are multiple individuals then, for each person identified, please specify which interrogatories that person provided information for or helped in answering. SUPPLEMENTAL ANSWER: Bryce Wells, Tom Danner, Tim Sayers and Meric Reese provided information responsive to these interrogatories. INTERROGATORY NO. 2: For Konecky and Kiger respectively, identify each contractual provision that you claim they breached. SUPLEMENTAL ANSWER: Konecky and Kiger each breached sections 1 & 2 of their respective Confidentiality and Non-Solicitation Agreements. Konecky and Kiger each breached their agreement to be bound by and follow the Employee Handbook. INTERROGATORY NO. 3: Do you assert that Kiger utilized RFG’s Confidential Information, and trade secrets for NORAG to acquire M7 Logistics, Inc. and, if so, please identify the principal and material facts in support of that assertion. SUPPLEMENTAL ANSWER: It is unknown at this time whether and to what extent Kiger conspired with, or aided and abetted, other Defendants regarding the M7 Logistics, Inc. acquisition. Discovery is ongoing and Plaintiff reserves the right to supplement or amend this answer. INTERROGATORY NO. 4: Identify the Confidential Information, as defined in Paragraph 75 of your Amended Complaint, and trade secrets that you assert Kiger retained and utilized in order to solicit Customers and employees away from RFG or that benefitted NORAG. SUPPLEMENTAL ANSWER: Plaintiff objects on the grounds that that the First Amended Complaint has been superseded and this Interrogatory is therefore not reasonably calculated to lead to the discovery of admissible evidence nor proportional to the needs of the case. Without waiving the foregoing objections and without regard to the allegations of the First Amended Complaint, Plaintiff states that during the period Kiger was employed by RFG, Kiger was given access to confidential business information belonging to RFG relating to its business practices, processes and customers, including but not limited to the following: customer information, historical customer business activity, pricing, margins, load lists, lane information, lane rates, lane customers, lane volumes, carrier contacts, carrier rates, phone lists, business plans, RFG performance data, RFG financial information, FRG strategy reports, RFG customer reports, RFG operatives reports, RFG activity reports, pricing data, pricing methods, operational plans and strategies, RFG producer revenues, RFG producer margins, RFG producer accounts, RFG producer relationships (hereinafter “RFG Confidential Information and Trade Secrets”). Following his separation from RFG, Kiger has and continues to use RFG Confidential Information and Trade Secrets for his benefit and for the benefit of NORAG. INTERROGATORY NO. 5: Identify the Confidential Information, as defined in Paragraph 71 of your Complaint, and trade secrets that you assert Konecky retained and utilized in order to solicit Customers and employees away from RFG or that benefitted NORAG. SUPPLEMENTAL ANSWER: Plaintiff further objects on the grounds that that the First Amended Complaint has been superseded and this Interrogatory is therefore not reasonably calculated to lead to the discovery of admissible evidence nor proportional to the needs of the case. Without waiving the foregoing objections and without regard to the allegations of the First Amended Complaint, Plaintiff states during the period Konecky was employed by RFG, Konecky was given access to hereinafter “RFG Confidential Information and Trade Secrets” and has utilized and continues to utilize RFG Confidential Information and Trade Secrets for her benefit and for the benefit of NORAG following her separation from RFG. Additionally, Konecky retained access to and utilized a Google Drive containing RFG Confidential Information and Trade Secrets belonging to RFG after her separation from RFG. INTERROGATORY NO. 6: By name(s), identify the customer(s) and employee(s) that Kiger has attempted to solicit, divert, or take away from RFG and the date(s) upon which the alleged solicitation or diversion occurred. SUPPLEMENTAL ANSWER: Upon information and belief, Kiger has and continued to solicit or attempt to solicit RFG customers, including but not limited to, Nestle, Advanced Marketing Group, Church & Dwight, Pilgrim’s Pride, Summit Procurement, Sunfair Marketing, Bowman Andros Products, ACJ International, US Silica Company, and Wilber Ellis Company, Upon information and belief, Kiger has assisted other Defendants solicit business from RFG customers including Land-O-Lakes, Cargill Rendering, Cargill Feed & Nutrition, Gavilon, MARS Pet Raw, Envirotech Services, Inc., Hereford Feed Ingredients, Nestle Purina Petcare, Darling Ingredients, Tyson Foods, Ardent Mills, Lamb Weston. Additionally, Kiger assisted other Defendants solicit business from RFG carriers, including but not limited to: Taylor Transport, Triple V Trucking, Jag Trucking, Pool Dog Trucking, CPC Commodities, Double T Trading, Double W Enterprise, Drew Ag Transport, Furnas County Freight Haulers, JL Foster, McClure Trucking, Meadow Farms Trucking, Richards Transport, Schaller Trucking, Scheiderer Transport, Schnepf Trucking, South Plains Logistics, Southland Transport Service, Specialized Commodity Freight Brokers, TD Walker, Sun Valley, JRT Trucking, and Hornbeck Transport LLC. The specific dates of such solicitations is not presently known to Plaintiff but discovery is ongoing and Plaintiff reserves the right to supplement this answer. INTERROGATORY NO. 7: Identify the RFG employees that conducted business with any of the clients identified on the ten applicable clients or customers list provided to Kiger from July 12, 2018 to the present. SUPPLEMENTAL ANSWER: Church & Dwight – Brent West, Jennifer Amos, Jim Gillmore, Matthew Briscoe, Meric Reese, Mindy Groves, Mai Le Advance Marketing Group – Drew Waggoner, Erin Staton, Matthew Briscoe, Meric Reese, Michael Burrus, and Mindy Groves, Mai Le Wilbur Ellis Company – Anthony Coloff, Brent West, Drew Waggoner, Erin Staton, Jeff Bradley, Jim Gillmore, Jordan Eggli, Kevin Dausel, Michael Burrus, Mitchell Snyder, and Shawn Rhoades, Mai Le Pilgrims Pride – Mt Pleasant – Antonio Rios, Jennifer Amos, Matthew Briscoe, Michael Burrus, Mindy Groves, Todd Groves, Tom Danner and Wes Dammann, Mai Le Pilgrim’s Pride – Greeley – Antonio Rios, Brent West, Chris Blegen, Drew Waggoner, Erin Staton, Jennifer Amos, Jim Gillmore, Michael Burrus, Michelle Reiling, Mindy Groves, Nick Van Soelen, and Shawn Rhoades, Mai Le Summit Procurement – Antonio Rios, Brent West, and Mindy Groves Sunfair Marketing – Brent West, Mindy Groves, and Todd Groves ACJ International – Mai Le INTERROGATORY NO. 8: Identify the existing and prospective business relationships that you assert Kiger, Konecky, or NORAG have intentionally and unjustifiably interfered with. SUPPLEMENTAL ANSWER: Nestle, Advanced Marketing Group, Church & Dwight, Pilgrim, Gavilon, Land-O-Lakes, Cargill Rendering, Cargill Feed & Nutrition, MARS Pet Raw, Envirotech Services, Inc., Hereford Feed Ingredients, Nestle Purina Petcare, Darling Ingredients, Tyson Foods, Ardent Mills, Lamb Weston, Summit Procurement, Sunfair Marketing, Bowman Andros Products, ACJ International, US Silica, Taylor Transport, Triple V Trucking, Jag Trucking, Pool Dog Trucking, CPC Commodities, Double T Trading, Double W Enterprise, Drew Ag Transport, Furnas County Freight Haulers, JL Foster, McClure Trucking, Meadow Farms Trucking, Richards Transport, Schaller Trucking, Scheiderer Transport, Schnepf Trucking, South Plains Logistics, Southland Transport Service, Specialized Commodity Freight Brokers, TD Walker, Sun Valley, JRT Trucking, Hornbeck Transport LLC. INTERROGATORY NO. 9: State the principal and material facts in support of your claim that Kiger or Konecky have used RFG’s “Confidential Information and trade secrets to solicit business, bookings, employees, and have utilized detailed customer information to benefit NORAG,” as set forth in paragraph 116 of your Amended Complaint. SUPPLEMENTAL ANSWER: Plaintiff objects on the grounds that the First Amended Complaint has been superseded and this Interrogatory is therefore not reasonably calculated to lead to the discovery of admissible evidence nor proportional to the needs of the case. Without waiving the foregoing objections, and without reference to allegations of the First Amended Complaint, Plaintiff states RFG experienced a decline in customer business and carrier loads for those customers and carriers listed in response to Interrogatory No. 8. Email correspondence and instant messages produced in this litigation has confirmed that Kiger, Konecky and the other Defendants have and continue to utilize RFG Confidential Information and Trade Secrets to unfairly compete against RFG. INTERROGATORY NO. 10: State the principal and material facts in support of your claim that “NORAG has failed to monitor Defendant Needham, Eggli and Kiger’s communication with the customers listed on their Notices, allowing them each to violate their Agreements,” as set forth in paragraph 81 of your Amended Complaint. SUPPLEMENTAL ANSWER: See Answer to Interrogatory No. 9. NORAG knew or should have known of the confidentiality restrictions limiting the activities of the Defendants, but failed to put effective measure in place to ensure compliance with those restrictions and/or prevent violation of those restrictions. INTERROGATORY NO. 11: State the principal and material facts in support of your claim that “NORAG knew or should have known they improperly acquired the Google Drive from Defendant Konecky,” as set forth in paragraph 79 of your Amended Complaint. SUPPLEMENTAL ANSWER: See Answers to Interrogatory Nos. 5 & 9. NORAG failed to inquire or identify that Konecky retained access to a Google Drive containing RFG Confidential Information and Trade Secrets and failed to implement adequate restrictions barring the use of any RFG Confidential Information and Trade Secrets obtained from the Google Drive. INTERROGATORY NO. 12: State the principal and material facts in support of your claim that Kiger, Konecky, and NORAG have tortiously interfered with your business relationships and expectancies. SUPPLEMENTAL ANSWER: Kiger tortiously interfered with RFG’s business relationships and expectancies by soliciting customers in violation of his Confidentiality and NonSolicitation Agreement. Kiger, Konecky and NORAG tortiously interfered with RFG’s business relationships and expectancies by assisting the Defendants to solicit customers in violation of NonSolicitation Agreements. Kiger, Konecky and NORAG interfered with RFG’s business relationships and expectancies by utilizing RFG Confidential Information and Trade Secrets identified in Answers to Interrogatories Nos. 4 & 5. INTERROGATORY NO. 13: Identify each overt act that you claim Kiger, Konecky, or NORAG committed in furtherance of the alleged civil conspiracy set forth in Count VIII of your Complaint. SUPPLEMENTAL ANSWER: Plaintiff objects to this Interrogatory on the grounds that the First Amended Complaint has been superseded and this Interrogatory is therefore not reasonably calculated to lead to the discovery of admissible evidence nor proportional to the needs of the case. Without waiving the foregoing objections and without regard to the allegations of the First Amended Complaint, Plaintiff incorporates its Answer to Interrogatory No. 12. INTERROGATORY NO. 14: Identify each client/customer who you claim to have lost as a result of Kiger, Konecky, or NORAG’s alleged solicitation and/or competition and, for each identified client/customer, set forth the amount of financial loss you allege that you have sustained. SUPPLEMENTAL ANSWER: Plaintiff has not transacted any business with US Silica, Bowman Andros Products, ACJ International since Kiger departed. Additionally, RFG has lost revenue as a result of Defendants’ conduct from the clients/customers listed in Answer to Interrogatory No. 8 above which continue to accrue. RFG has separately disclosed documents listing revenue for those clients/customers. INTERROGATORY NO. 15: Identify all damages which you allege that you have sustained as a consequence of Konecky, Kiger, and NORAG’s acts or omissions, to the extent that these damages differ from those asserted exclusively against Neehdam and Eggli and already set forth in your response to Defendants’ First Interrogatories. SUPPLEMENTAL ANSWER: Discovery is ongoing and the full extent of damages Plaintiff has sustained as a result of Defendants’ conduct has not yet been fully ascertained or determined by Plaintiff. Plaintiff will supplement its answer to this Interrogatory. INTERROGATORY NO. 16: Identify all communications which you have had with any of the clients that Kiger serviced while in your employ from the date of his departure to the date of your response that concern Kiger. SUPPLEMENTAL ANSWER: Plaintiff objects to this Interrogatory on the grounds that it is overly broad, unduly burdensome and disproportional to the needs of the case. Plaintiff communicates with customers and clients previously serviced by Kiger on a regular basis. RFG has separately produced all email communications with clients concerning Kiger. INTERROGATORY NO. 17: Identify all acts which you allege in your Complaint to have been committed by Kiger and Konecky which you claim constitute breaches of loyalty. SUPPLEMENTAL ANSWER: Upon information and belief, Kiger and Konecky planned and conspired to transfer business, customer relationships and carrier relationships to NORAG while still employed by RFG; communicated with customers regarding their plans to move to NORAG; and misappropriated RFG Confidential Information and Trade Secrets while still employed by RFG. Additionally, Kiger breached his duty of loyalty by intentionally reducing his productivity in the weeks leading up to his departure and Konecky breached her duty of loyalty by retaining access to the Google Drive upon her departure. INTERROGATORY NO. 18: Identify all trade secret documents that you claim Kiger and Konecky misappropriated. SUPPLEMENTAL ANSWER: See Answers to Interrogatory Nos. 4, 5 & 12. Kiger and Konecky have utilized RFG Confidential Information and Trade Secrets, including but not limited to, customer lists, spreadsheets, historical load information, and information contained on the Google Drive DATED this 30th day of September, 2022. RETZLAFF GRAIN COMPANY, INC. D/B/A RFG LOGISTICS, INC, Plaintiff By: /s/ Michael S. Degan Michael S. Degan, (#20372) Kutak Rock LLP The Omaha Building 1650 Farnam Street Omaha, NE 68102-2186 (402) 346-6000 mike.degan@kutakrock.com CERTIFICATE OF SERVICE I hereby certify that the foregoing document was served on Defendants via e-mail transmission this 30th day of September, 2021, addressed to its attorneys as follows: Joshua C. Dickinson Shilee T. Mullin Madison A. Perry jdickinson@spencerfane.com smullin@spencerfane.com mperry@spencerfane.com /s/ Michael S. Degan Michael S. Degan VERIFICATION The Undersigned hereby declares under penalty of perjury that the information set forth in these Supplemental Answers are true and accurate to the best of his/her personal knowledge and belief. Signature “Foam © Name: /6 er} Title: Vv fF Cert Date: P-3O ~AA 4852-9766-8321.3 13 ATTORNEYS’ EYES ONLY: SUBJECT TO PROTECTIVE ORDER EXHIBIT “A” TO PLAINTIFF’S ANSWERS TO DEFENDANTS’ FIRST SET OF INTERROGATORIES Plaintiff reserves the right to supplement this Exhibit “A” Answer to Interrogatory No. 4 Plaintiff contends that Needham has engaged in a pattern of behavior, with the assistance and cooperation of Eggli, to obtain Confidential Information and trade secrets since July of 2018 through the date of Eggli’s resignation on February 21, 2020. Plaintiff contends that Needham misappropriated the following categories of information that are more specifically identified in a collection of spreadsheet documentation obtained through the electronic operating system utilized by RFG and Needham during the course of his employment: 1. Customer daily, monthly and annual freight service needs. 2. Typical length of customer hauls on a daily, monthly and annual basis. 3. Compiled, fluctuating market trends associated with customer hauls and market need for particular products. 4. Profit margin per load booked by Needham, Eggli and all other RFG employees who document every load transaction within the Strategy electronic operating system. 5. Lane data and geographical needs for each customer that is identified within the Strategy electronic operating system. The specific identification of trade secrets misappropriated from the above-mentioned categories are provided pursuant to Federal Rule of Civil Procedure 33(d), by reviewing documents produced by Plaintiff from which this answer can be ascertained, and being located within the spreadsheets identified above and regular RFG business documentation maintained by employees on the Box and Google Drive accounts which both Needham and Eggli had access to, as well as by review of text message records between Needham and Michael Barrus, a current RFG employee, and by review of Trillian chat history records. These documents will be produced on a rolling basis. Needham has continued to solicit confidential customer and carrier contact information from current RFG employees since his departure. Needham has utilized the trade secret rate, profit margin information related to customers, as well as load list, carrier contact and customer contact information since the date ofhis termination. Plaintiff further contends Needham misappropriated information contained within Google Drive account records that were created during Needham’s employment at RFG which he had access to. Specifically, Plaintiff contends Needham unlawfully acquired separate detailed lists of carrier contacts based on the origin cities of Winston Salem, NC, Schaller, IA, Moss Point, MS, Lawrenceburg, IN, Carthage, MO, Carlsbad, NM, Adairville, KY. Plaintiff further contends Needham misappropriated theload list unlawfully misappropriated by Eggli. Plaintiff further contends Needham has utilized trade secret employee information, including, but not limited to, margin information by employee, employee compensation and commission pay out structure and knowledge of RFG’s benefits package since the date of his termination. Specific documentation of these trade secrets will be produced on a rolling basis and is incorporated by reference herein pursuant to Federal Rule of Civil Procedure 33(d). Specifically, this information is found within the Google Drive Manager folder identified by RFG to be produced, in addition to the compilation of margin information per load booked by employees identified within the Strategy operating system spreadsheets further explained above. Answer to Interrogatory No. 5 Plaintiff contends that Eggli has engaged in a pattern of behavior, with the assistance and cooperation of Needham, to obtain Confidential Information and trade secrets since July of 2018 through the date of Eggli’s resignation on February 21, 2020. Plaintiff contends that Eggli misappropriated the entirety of his load list and telephone contacts that contained a compilation of proprietary carrier and customer contact information belonging solely to RFG. In addition, Plaintiff contends that Eggli misappropriated the following categories of information that are more specifically identified in a collection of spreadsheet documentation obtained through the electronic operating system utilized by RFG and Eggli during the course of his employment: 1. Customerdaily, monthly and annual freight service needs. 2. Typical length of customer hauls on a daily, monthly and annual basis. 3. Compiled, fluctuating market trends associated with customer hauls and market need for particular products. 4. Profit margin per load booked by Needham, Eggli and all other RFG employees who document every load transaction within the Strategy electronic operating system. 5. Lane data and geographical needs for each customer that is identified within the Strategy electronic operating system. The specific identification of trade secrets misappropriated from the above-mentioned categories are provided pursuant to Federal Rule of Civil Procedure 33(d), by reviewing documents produced by Plaintiff from which this answer can be ascertained, and being located within the spreadsheets identified above and regular RFG business documentation maintained by employees on the Box and Google Drive accounts which Eggli had access to, as well as by review of Trillian instant messenger chat histories. These documents will be produced on a rolling basis. Eggli has continued to solicit confidential customer and carrier contact information from current RFG employees since his departure, in addition to attempt to solicit trade secret rate information for specific RFG customers. Eggli has utilized the trade secret rate, profit margin information related to customers, as well as load list, carrier contact and customer contact information since the date of his termination. Plaintiff further contends Eggli misappropriated information contained within Google Drive account records that were created during Needham’s employment at RFG. Specifically, Plaintiff contends Eggli unlawfully acquired separate detailed lists of carrier contacts based on the origin cities of Winston Salem, NC, Schaller, IA, Moss Point, MS, Lawrenceburg, IN, Carthage, MO, Carlsbad, NM, Adairville, KY. Plaintiff further contends Eggli has misappropriated the employee compensation and commission structure, as well as timing of pay history, in an attempt to solicit RFG employees. This specific information is documented within the Trillian chat histories to be produced on a rolling basis. Heiserman, Judy From: Perry, Madison Sent: Tuesday, November 29, 2022 3:40 PM To: Degan, Michael S. Cc: Dickinson, Josh; Heiserman, Judy Subject: RE: RFG/NORAG - Motion for Extension RFGOQ034990.padf Mike, As detailed below, we have remaining issues with the recent production and the supplemental responses. Therefore, we need to seek an extension of time with respect to the motion to compel deadline. Please let us know if you can agree to an extension until 1.16.23. Let us know if there are any outstanding issues on your end, and we can make it a joint request if needed. We had a chance to review the supplemental discovery responses in conjunction with some of the document production. Based on my sampling review, the responses do not appear to correlate with the document production, and in many cases, for example the supplemental response to request 4 (which identifies 39,817 documents) identify wide ranges of documents. For convenience, below I’ve identified the request and a sampling of documents that are identified in the supplemental responses as responsive to that request. However, upon review of the documents, they do not appear to be responsive to those requests. The list below is not exhaustive because it did not make sense to continue to review documents that were not responsive. In addition, the supplemental responses indicated documents were being produced contemporaneously with them. We did not receive any contemporaneous document production. Finally, as mentioned during our last call, the Microsoft teams chats do not show up in reviewable format. I’ve attached the example again. Please let us know when you are available to discuss. REQUEST NO. 3: Documents, e-mails, or other communications (or records of communications) between Plaintiff and any of the clients identified on the ten applicable clients or customers list provided to Kiger from July 18, 2018 to the present that concern either Defendant. RFGOOO8037 RFGOOO8041 RFGOOO8044 RFGOOO8047 RFGOOO8050 RFGOO13949 RFGOO013952 RFGOO13953 RFGOO13956 RFGOO13957 REQUEST NO. 4: Documents, e-mails, or other communications between Plaintiff and any of its current or former employees relating to Kiger or Konecky’s contact of RFG employees, solicitation of RFG employees, or alleged use of protected information for trade purposes. RFGOO10996 RFGOO10998 RFGOO11001 RFGOO11002 RFGOO1 1003 RFGOO11004 RFGO118043 REQUEST NO. 5: Documents, e-mails, or other communications between Plaintiff and any of its current or former employees relating to Konecky, Kiger, and NORAG’s alleged misappropriation of trade secrets or Confidential Information, as defined in Paragraph 23 of your Amended Complaint. RFGO118062 RFGO118064 RFGO118067 RFGO118072 RFGO118082 RFGO118089 RFGO118096 RFGO118099 REQUEST NO. 7: All non-privileged e-mails, communications, and documents from or to Plaintiff discussing or relating in any way to the departure of Kiger. This request is limited to the following time frame: August 29, 2019, to the present. RFGO137645 RFGO137761 RFGO137764 RFGOQ137770 RFGOQ137772 REQUEST NO. 8: All non-privileged e-mails, communications, and documents from or to Plaintiff discussing or relating in any way to the departure of Konecky. This request is limited to the following time frame: July 6, 2018, to the present. RFGO138173 RFGO1381/76 RFGO138178 RFGO138179 RFGO138181 Madison Perry Attorney at Law Spencer Fane LLP 1000 Walnut, Suite 1400 | Kansas City, MO 64106 O 816.292.8814 mperry@spencerfane.com | spencerfane.com From: Degan, Michael S. <Michael.Degan@ KutakRock.com> Sent: Thursday, November 17, 2022 10:21 AM Perry, Madison <mperry@spencerfane.com> Cc: Dickinson, Josh <jdickinson@spencerfane.com>; Heiserman, Judy <JHeiserman@spencerfane.com> Subject: [EXTERNAL] RE: RFG/NORAG - Motion for Extension [Warning] This E-mail came from an External sender. Please do not open links or attachments unless you are sure it is trusted. Madison—Sara my paralegal is out today with a sick kid, so will need another day on this. Mike Michael S. Degan | Omaha D 402.661.8635 | O 402.346.6000 | M 402.598.3113 KUTAKROCK From: Degan, Michael S. Sent: Wednesday, November 16, 2022 2:52 PM Perry, Madison <mperry@spencerfane.com> Cc: Dickinson, Josh <jdickinson@spencerfane.com>; Heiserman, Judy <JHeiserman@spencerfane.com> Subject: RE: RFG/NORAG - Motion for Extension Madison: We will be serving supplemental responses to your second set of requests for production to clarify the last production and should have them to you by end of day tomorrow. Mike Michael S. Degan | Omaha D 402.661.8635 | O 402.346.6000 | M 402.598.3113 KUTAKROCK From: Perry, Madison <mperry@spencerfane.com> Sent: Tuesday, November 15, 2022 2:24 PM Degan, Michael S. <Michael.Degan@KutakRock.com> Cc: Dickinson, Josh <jdickinson@spencerfane.com>; Heiserman, Judy <JHeiserman@spencerfane.com> Subject: RE: RFG/NORAG - Motion for Extension [ CAUTION - EXTERNAL SENDER } Mike, Thanks. Madison Perry Attorney at Law Spencer Fane LLP 1000 Walnut, Suite 1400 | Kansas City, MO 64106 O 816.292.8814 mperry@spencerfane.com | spencerfane.com From: Perry, Madison Sent: Friday, November 11, 2022 1:48 PM To: Degan, Michael S. <Michael.Degan@KutakRock.com> Cc: Dickinson, Josh <jdickinson@spencerfane.com>; Heiserman, Judy <JHeiserman@spencerfane.com> Subject: RE: RFG/NORAG - Motion for Extension Mike, Following up on this, I spoke with our person who handles the productions. At a high level, the documents were not produced in subfolders sorted by request number. We can see a metadata field in the background that indicates a folder path for the documents, however, that is not readily accessible and cannot be used to sort the documents. However, of note, I’m told that the folder paths indicate that the documents are only in response to requests for production 4, 5, 7, and 8. If the documents only respond to those four requests, we will need to have a broader conversation. But please drill down on your end and let us know what you find out about the production, which requests it responds to, and how they can be produced in an organized or identifiable manner. Thank you, Madison Madison Perry Attorney at Law Spencer Fane LLP 1000 Walnut, Suite 1400 | Kansas City, MO 64106 O 816.292.8814 mperry@spencerfane.com | spencerfane.com From: Perry, Madison Sent: Friday, November 11, 2022 12:53 PM To: Degan, Michael S. <Michael.Degan@KutakRock.com> Cc: Dickinson, Josh <jdickinson@spencerfane.com>; Heiserman, Judy <JHeiserman@spencerfane.com> Subject: RE: RFG/NORAG - Motion for Extension Mike, Thanks for your time on the call today. We will look back on our end to see if we are able to see the folders you produced that are supposed to identify documents responsive by request. As mentioned, our team usually carries over any folder structure when loading documents for review, so my guess is that there wasn’t any delineation in the production. You were also going to follow up on possible tech issues with the Microsoft team messages, for example, RFG34990. We will also look at availability to meet before the court conference to discuss case status and proposed schedule. Thanks, Madison Madison Perry Attorney at Law Spencer Fane LLP 1000 Walnut, Suite 1400 | Kansas City, MO 64106 O 816.292.8814 mperry@spencerfane.com | spencerfane.com From: Perry, Madison Sent: Monday, October 31, 2022 11:34 AM To: Degan, Michael S. <Michael.Degan@KutakRock.com> Cc: Dickinson, Josh <jdickinson@spencerfane.com>; Heiserman, Judy <JHeiserman@spencerfane.com> Subject: RFG/NORAG - Motion for Extension Mike, We are in the process of reviewing the latest round of Plaintiff’s discovery responses and production. Given the volume, we need to seek an extension of time with respect to the motion to compel deadline. Please let us know if you can agree to a 30 day extension, until 12.1. Let us know if there are any outstanding issues on your end, and we can make it a joint request if needed. Along those lines, Plaintiff’s last production consisted of almost 50,000 documents. Many appear to be completely irrelevant, and we cannot discern any responsiveness. I’ve attached some miscellaneous examples. We are requesting that you identify which documents are responsive/relevant to which requests and/or claims. If a discussion would be helpful, we will make ourselves available. Thank you, Madison Madison Perry Attorney at Law Spencer Fane LLP 1000 Walnut, Suite 1400 | Kansas City, MO 64106 O 816.292.8814 mperry@spencerfane.com | spencerfane.com This E-mail message is confidential, is intended only for the named recipients above and may contain information that is please notify the sender at 402-346-6000 and delete this E-mail message. you. Name: □□□□□□□□□□□□□□□□□□□□□□□□□□□□ - 2020-08-06T14:50:16.779Z: 3 participants MIME Type: _ Microsoft Team$ Chat Conversation PT tics.com,jodym@rfglogistics.com, laurenw@riglogistics.com} First Communic 2020-08-06T 14:50:16.779Z Last Communic 2020-08-06T 14:b0:16.779Z IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEBRASKA RETZLAFF GRAIN COMPANY, INC. d/b/a Case No. 8:20-cv-00289-LSC-MDN RFG LOGISTICS, INC. Plaintiff, PLAINTIFF’S POSITION STATEMENT vs. REGARDING IDENTIFICATION OF CONFIDENTIAL INFORMATION AND NORAG, LLC, et al., TRADE SECRETS Defendants. Plaintiff Retzlaff Grain Company, Inc. d/b/a RFG Logistics, Inc. (“RFG”), by and through its attorney, hereby responds to the Position Statement submitted on behalf of the Defendants Jordan Eggli (“Eggli”), Chad Needham (“Needham”), Crystal Konecky (“Konecky”), Robb Kiger (“Kiger”), and NORAG, LLC (“NORAG”) (jointly “Defendants”), contending that RFG’s Supplemental Responses to Defendants’ Second Set of Interrogatories are Insufficient by stating the following: Defendants served its First Set of Interrogatories on RFG, which were timely answered by RFG on August 18, 2020. Therein, Interrogatories Nos. 4 & 5 asked Defendants to identify the trade secrets alleged in the Complaint. RFG’s answer referenced Exhibit A which was attached to RFG’s interrogatory answers and copy of which is attached to Defendants’ Position Statement as Exhibit 2. Therein, RFG provided a three-page description of the information RFG deemed to be trade secret. Thereafter, on October 9, 2020, RFG supplemented its answers by further answering Interrogatories Nos. 4 & 5. See RFG Exhibit 1. At no time has Defendants objected to the sufficiency of RFG’s answers to Defendants First Set of Interrogatories. Defendants later served a Second Set of Interrogatories directed at defendants Konecky and Kiger. Defendants’ Second Set of Interrogatories contained Interrogatories Nos. 4 & 5 which again asked RFG to identify the trade secrets alleged in the Complaint. Interrogatories Nos. 4 & 5 contained in the Second Set of Interrogatories are substantively identical to Interrogatories Nos. 4 & 5 in Defendants First Set of Interrogatories. RFG served written answers on March 29, 2021 and objected to Requests Nos. 4 & 5 on the grounds that the interrogatories were duplicative and that Defendants had exceeded the numerical interrogatory limit set forth in the Progression Order. On August 31, 2022, the parties each submitted a discovery dispute matrix to the Court addressing a number of disputed discovery issues between the parties. Defendants noted RFG’s objections to Interrogatory Nos. 4 & 5 on its discovery dispute matrix. See RFG Exhibit 2. Defendants did not identify any objections regarding the sufficiency of RFG’s answers to Defendants’ First Set of Interrogatories on its discovery dispute matrix. The Court conducted a discovery conference to address the issues disputed by the parties on September 1, 2022 and overruled RFG’s objections to Nos. 4 & 5 among other rulings. Thereafter, on September 30, 2022, RFG served Supplemental Answers to Defendants’ Second Set of Interrogatories as ordered by the Court. Therein, RFG fully answered Interrogatories Nos. 4 & 5 by describing and identifying the confidential information RFG misappropriated and is wrongfully utilizing. RFG has therefore fully and adequately identified the confidential information identified in the Complaint. DATED this 20th day of January, 2023. IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEBRASKA RETZLAFF GRAIN COMPANY, INC. ) D/B/A/ RFG LOGISTICS, INC., ) Case No. 8:20-cv-00289 Plaintiff, ) ) vs. ) PLAINTIFF’S SUPPLEMENTAL AND ) AMENDED ANSWERS AND JORDAN EGGLI, CHAD NEEDHAM, ) OBJECTIONS TO DEFENDANTS’ FIRST CRYSTAL KONECKY, ROBB KIGER, ) SET OF INTERROGATORIES TO and NORAG LLC, ) PLAINTIFF Defendants. ) TO: Defendants Jordan Eggli and Chad Needham, by and through their counsel of record. COMES NOW Plaintiff Retzlaff Grain Company, Inc. d/b/a RFG Logistics, Inc. (“Plaintiff” and/or “RFG”), by and through its counsel of record, and for its Supplemental and Amended Answers and Objections to Defendants’ First Set of Interrogatories to Plaintiff, states as follows: PRELIMINARY STATEMENT 1. Right to Supplement. Investigation of facts relating to this action is still ongoing and Plaintiff reserves the right to supplement or amend these Answers if additional information is discovered. 2. Defendants have served more than twenty-five (25) Interrogatories including subparts. This number of the Interrogatories far exceeds the number of Interrogatories permitted by Fed. R. Civ. Proc. 33(a)(1) without leave of Court to issue additional Interrogatories. Plaintiff responds to this First Set of Interrogatories without waiving its numerosity objection pursuant to Federal Rule of Civil Procedure 33(a)(1) and does not consent to any additional interrogatories being served upon it. 3. Plaintiff objects to the Interrogatories to the extent they seek information and documents that are protected from disclosure by the attorney-client or other legal privileges. Privileged information will not be disclosed. In the event any attorney-client privileged communication or document is disclosed, such disclosure or production is purely inadvertent and not a knowing or intentional waiver of the attorney-client privilege. 4. Work Product Doctrine. Plaintiff objects to the Interrogatories to the extent they seek information or documents prepared in anticipation of litigation or for trial by Plaintiff or their representatives, and that contain the work product, mental impressions, conclusions, opinions, or legal theories of Plaintiff’s legal counsel or other representatives. Such information will not be disclosed or produced. In the event any information or document protected by the work product doctrine is disclosed or produced, such disclosure or production is purely inadvertent and not a knowing or intentional waiver of such privilege. CONFIDENTIAL – SUBJECT TO PROTECTIVE ORDER INTERROGATORIES INTERROGATORY NO. 4: Identify the Confidential Information, as defined in Paragraph 13 of your Complaint, and trade secrets that you assert Needham retained and utilized in order to solicit Customers and employees away from RFG or that benefitted NORAG. ANSWER: Plaintiff objects as the Interrogatory as worded is vague, as there is no definition or identification of what Defendants interpret “trade secrets” to mean. Utilizing the federal statutory definition identified in the Defend Trade Secrets Act, Plaintiff asserts that Needham improperly acquired and misappropriated Confidential Information (as defined in Paragraph 13 of Plaintiff’s Complaint) and trade secret information from RFG. While discovery remains ongoing and Plaintiff reserves the right to supplement this Answer in accordance with the Federal Rules of Civil Procedure, Plaintiff has identified trade secrets and Confidential Information RFG asserts Needham retained and utilized. Due to the proprietary nature of the information, Plaintiff has included this information in a separate Exhibit “A” to Plaintiff’s Answers to Interrogatories, which is designated as Attorneys’ Eyes Only. SUPPLEMENTAL ANSWER: In addition to the foregoing Answer to Interrogatory No. 4, Plaintiff states Needham retained and utilized RFG proprietary pricing rate information associated with specified lanes and customers which he regularly conducted business with while at RFG. Plaintiff further states Needham retained and utilized RFG employment benefits and compensation structure information in order to solicit employees away from RFG or that benefited NORAG. INTERROGATORY NO. 5: Identify the Confidential Information, as defined in Paragraph 13 of your Complaint, and trade secrets that you assert Eggli retained and utilized in order to solicit Customers and employees away from RFG or that benefitted NORAG. ANSWER: Plaintiff objects as the Interrogatory as worded is vague, as there is no definition or identification of what Defendants interpret “trade secrets” to mean. Utilizing the federal statutory definition identified in the Defend Trade Secrets Act, Plaintiff asserts that Eggli improperly acquired and misappropriated Confidential Information (as defined in Paragraph 13 of Plaintiff’s Complaint) and trade secret information from RFG. While discovery remains ongoing and Plaintiff reserves the right to supplement this Answer in accordance with the Federal Rules of Civil Procedure, Plaintiff has identified trade secrets and Confidential Information RFG asserts Eggli retained and utilized. Due to the proprietary nature of the information, Plaintiff has included this information in a separate Exhibit “A” to Plaintiff’s Answers to Interrogatories, which is designated as Attorneys’ Eyes Only. SUPPLEMENTAL ANSWER: In addition to the foregoing Answer to Interrogatory No. 5, Plaintiff states Eggli retained and utilized RFG proprietary pricing rate information associated with specified lanes and customers which he regularly conducted business with while at RFG. Plaintiff further states Eggli retained and utilized RFG load list contacts he utilized on a daily basis while at RFG. INTERROGATORY NO. 7: By name(s), identify the customer(s) and employee(s) that Needham has attempted to solicit, divert, or take away from RFG and the date(s) upon which the alleged solicitation or diversion occurred. ANSWER: While discovery remains ongoing and Plaintiff reserves the right to supplement its response, Plaintiff has identified the following RFG employees (current or former) who Needham has unjustifiably and intentionally solicited: Jordan Eggli, Robb Kiger, Michael Burrus, and Mai Le. With respect to customer(s) that Needham has attempted to solicit, divert, or take away, these include the following known to RFG: MARS, Land O Lakes, Ardent Mills, Envirotech, Cargill. With respect to particular dates of solicitation that are known at this time, Plaintiff refers pursuant to Federal Rule of Civil Procedure 33(d) communications which identify solicitation of business by Needham to be produced on a rolling basis which identify these customers. Discovery is ongoing and RFG reserves the right to supplement this response. SUPPLEMENTAL ANSWER: In addition to the foregoing Answer to Interrogatory No. 7, Plaintiff states Needham has blatantly solicited Land O Lakes, Ardent Mills and Cargill consistently between July 12, 2018 and July 12, 2019, based upon the documentation produced by Defendants thus far showing communications by Needham with each of these respective customers to specifically obtain their business on behalf of NORAG. INTERROGATORY NO. 12: State the principal and material facts in support of your claim that Defendants attempted to solicit both “Customers and RFG employees away from RFG within the one (1) year period following the date of their respective separation from RFG,” as set forth in paragraph 102 of your Complaint. ANSWER: Plaintiff objects to this Interrogatory on the basis that it seeks information protected by the attorney-client privilege and attorney work product doctrine to disclose litigation strategy on what constitutes a “principal and material fact” in support of a known claim. Without waiving this objection, Plaintiff asserts Defendants have both attempted through text message, phone calls and Trillian instant messenger chat sessions to solicit RFG employees previously identified away from the employ of RFG. Defendants continuously disparage RFG as a business, as well as its senior management, to current RFG employees in an attempt to further solicit those employees away from the employ of RFG. These actions occurred within and outside one year from the date each Defendant separated from RFG. In addition to employees, Defendant Needham continued to solicit customers identified within his customer list notice provided in July 2018 almost immediately following his termination. These solicitations are evident when reviewing documented communications with certain customers, including Ardent Mills and Land O Lakes, which are produced and referred to pursuant to Federal Rule of Civil Procedure 33(d). Defendant Eggli has continued to solicit Taylor Transport LLC through contacts with Andy Taylor, as recently as June of 2020. SUPPLEMENTAL ANSWER: In addition to the foregoing Answer to Interrogatory No. 12, Plaintiff states Needham has blatantly solicited Land O Lakes, Ardent Mills and Cargill consistently between July 12, 2018 and July 12, 2019, based upon the documentation produced by Defendants thus far showing communications by Needham with each of these respective customers to specifically obtain their business on behalf of NORAG. As Defendants have not yet produced any documentation surrounding the remaining Defendants’ communications with customers since their respective departures from RFG, this Interrogatory will continue to be supplemented as discovery progresses. With respect to employee communications, Trillian chat histories and text messages are being produced that show Michael Burrus and Mai Le have been solicited by Defendants Needham and Eggli to leave RFG employment. The attempts to recruit these two employees specifically, as well as attempts to recruit Robb Kiger, were done within the one year period and thereafter by Needham. Eggli, being well within one year following his resignation, has attempted to recruit Mai Le to leave the employ of RFG. INTERROGATORY NO. 13: State the principal and material facts in support of your claim that Defendants misappropriated trade secrets in violation of the Defend Trade Secrets Act. ANSWER: Plaintiff objects to this Interrogatory on the basis that it seeks information protected by the attorney-client privilege and attorney work product doctrine to disclose litigation strategy on what constitutes a “principal and material fact” in support of a known claim. Without waiving this objection, Plaintiff refers Defendants to Answer to Interrogatory Nos. 4 and 5, together with Exhibit “A,” incorporated by reference herein. SUPPLEMENTAL ANSWER: In addition to the foregoing Answer to Interrogatory No. 13, Plaintiff states Needham has blatantly solicited Land O Lakes, Ardent Mills and Cargill consistently between July 12, 2018 and July 12, 2019, while utilizing confidential and trade secret pricing information and knowledge of lanes obtained during his employment at RFG, based upon the documentation produced by Defendants thus far showing communications by Needham with each of these respective customers to specifically obtain their business on behalf of NORAG. As Defendants have not yet produced any documentation surrounding the remaining Defendants’ communications with customers since their respective departures from RFG, this Interrogatory will continue to be supplemented as discovery progresses. With respect to employee communications, Trillian chat histories and text messages are being produced that show Defendants Needham and Eggli have utilized confidential and trade secret employment information in order to solicit Michael Burrus and Mai Le to leave RFG employment. INTERROGATORY NO. 14: State the principal and material facts in support of your claim that one or both of Defendants have used RFG’s “Confidential Information and trade secrets to solicit business, bookings, employees, and have utilized detailed customer information to benefit NORAG,” as set forth in paragraph 86 of your Complaint. ANSWER: Plaintiff objects to this Interrogatory on the basis that it seeks information protected by the attorney-client privilege and attorney work product doctrine to disclose litigation strategy on what constitutes a “principal and material fact” in support of a known claim. Without waiving this objection, Plaintiff refers Defendants to Answer to Interrogatory Nos. 4 and 5, together with Exhibit “A,” incorporated by reference herein. SUPPLEMENTAL ANSWER: In addition to the foregoing Answer to Interrogatory No. 14, Plaintiff states Needham has blatantly solicited Land O Lakes, Ardent Mills and Cargill consistently between July 12, 2018 and July 12, 2019, while utilizing confidential and trade secret pricing information and knowledge of lanes obtained during his employment at RFG, based upon the documentation produced by Defendants thus far showing communications by Needham with each of these respective customers to specifically obtain their business on behalf of NORAG. As Defendants have not yet produced any documentation surrounding the remaining Defendants’ communications with customers since their respective departures from RFG, this Interrogatory will continue to be supplemented as discovery progresses. With respect to employee communications, Trillian chat histories and text messages are being produced that show Defendants Needham and Eggli have utilized confidential and trade secret employment information in order to solicit Michael Burrus and Mai Le to leave RFG employment. INTERROGATORY NO. 16: Identify each overt act that you claim Defendants committed in furtherance of the alleged civil conspiracy set forth in Count VIII of your Complaint. ANSWER: Plaintiff objects as the Interrogatory is vague as to the meaning of “overt act.” Plaintiff further objects to this Interrogatory on the basis that it seeks information protected by the attorney work product doctrine and attorney-client privilege. Without waiving those objections, Plaintiff states on the date of Needham’s termination, Defendant Eggli e-mailed to a personal email account his entire load list that includes proprietary and trade secret contact information that holds independent economic value to Plaintiff. In addition, Eggli was seeking alternative employment with NORAG through Needham directly for a period of time prior to his resignation on February 21, 2020. It is believed Needham was soliciting Confidential Information and trade secrets through Eggli for a significant period of time. Discovery remains ongoing and Plaintiff reserves the right to supplement its response. AMENDED ANSWER: Plaintiff objects to this Interrogatory on the basis that it seeks information protected by the attorney work product doctrine and attorney-client privilege. Without waiving those objections, Plaintiff states on the date of Needham’s termination, Defendant Eggli e-mailed to a personal e-mail account his entire load list that includes proprietary and trade secret contact information that holds independent economic value to Plaintiff. In addition, Eggli was seeking alternative employment with NORAG through Needham directly for a period of time prior to his resignation on February 21, 2020. It is believed Needham was soliciting Confidential Information and trade secrets through Eggli for a significant period of time. Discovery remains ongoing and Plaintiff reserves the right to supplement its response. Each and every single act taken in furtherance of the conspiracy between Needham and Eggli has not yet been discovered, but what is known thus far has been disclosed. Consistent with RFG’s discovery obligations, this Interrogatory response will be supplemented in accordance with the Federal Rules of Civil Procedure and any progression order filed in this case. INTERROGATORY NO. 21: Identify all damages which you allege that you have sustained as a consequence of Defendants’ acts or omissions. ANSWER: Plaintiff objects as this Interrogatory is premature as discovery remains ongoing and the full extent of Defendants’ unlawful acts are still being reviewed and discovered. Further, Plaintiff objects as the Interrogatory is vague with respect to the Defendants’ “acts or omissions” and is overbroad as there is no temporal limitation on the Interrogatories. Plaintiff incorporates by reference its Answer to Interrogatory No. 8, as though fully set forth herein, and further reserves the right to supplement this Interrogatory as discovery progresses. AMENDED ANSWER: Plaintiff objects as this Interrogatory is premature as discovery remains ongoing and the full extent of Defendants’ unlawful acts are still being reviewed and discovered. Plaintiff incorporates by reference its Answer to Interrogatory No. 8, as though fully set forth herein, and further reserves the right to supplement this Interrogatory as discovery progresses. INTERROGATORY NO. 22: Identify all communications which you have had with any of the clients that Defendants serviced while in your employ from the date of their respective departures to the date of your response that concern the Defendants. ANSWER: Plaintiff objects as this Interrogatory is premature as discovery remains ongoing and the full extent of Defendants’ unlawful acts are still being reviewed. Further, Plaintiff objects as the Interrogatory is vague with respect to the phrase “that concern the Defendants.” Finally, Plaintiff objects on the basis this Interrogatory is unduly burdensome and overbroad by requesting “all communications” with “any of the clients that Defendants serviced.” Without waiving these objections, Plaintiff will produce on a rolling basis those communications between RFG and the top ten customers identified on Needham and Eggli’s correspondence which identify, mention or discuss either of the Defendants. Pursuant to Federal Rule of Civil Procedure 33(d), Plaintiff refers Defendants to those communications to be contained within its document production and further reserves the right to supplement this response and its productions as discovery progresses. SUPPLEMENTAL ANSWER: In addition to the foregoing Answer to Interrogatory No. 22, Plaintiff states that it has communicated with the following customers, who have acknowledged they have been solicited to do business with the Individual Defendants within the one year period following the Individual Defendants’ respective departure from RFG: Land O Lakes, Taylor Transport LLC, Church & Dwight. Dated this 9th day of October 2020. RETZLAFF GRAIN COMPANY, INC. D/B/A RFG LOGISTICS, INC., Plaintiff By: /s/ Ryann A. Glenn Marnie A. Jensen (#22380) Ryann A. Glenn (#26160) Jennifer L. Sturm (#26539) HUSCH BLACKWELL LLP 13330 California St., Ste. 200 Omaha, NE 68154 Telephone: (402) 964-5000 Facsimile: (402) 964-5050 marnie.jensen@huschblackwell.com ryann.glenn@huschblackwell.com jennifer.sturm@huschblackwell.com Attorneys for Retzlaff Grain Company, Inc. d/b/a RFG Logistics, Inc. CERTIFICATE OF SERVICE The undersigned hereby certifies that on the 9th day of October 2020, the foregoing was sent electronically, to the following counsel of record for the Defendants: Joshua C. Dickinson Shilee T. Mullin Spencer Fane LLP 13520 California Street, Suite 290 Omaha, NE 68154 jdickinson@spencerfane.com smullin@spencerfane.com /s/ Ryann A. Glenn 8:20-cv-00289-RFR-MDN Doc # 142 Filed: 01/24/23 Page 40 of 47 - Page ID # 901 Moving Party: Defendants Retzlaff Grain Company, Inc. v. Eggli et al., Case 8:20-cv-00289-RFR-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: Defendants Eggli, Needham, Konecky, Kiger, and NORAG, LLC (“NORAG”) (jointly “Defendants”) The responding party is: Plaintiff Retzlaff Grain Company, Inc ("RFG”) Note: If discovery from both parties is at issue, provide a separate sheet for each moving party. Moving Party’s Responding Discovery Relevant to Moving Party’s Initial Responding Party’s Court’s Ruling Last Offered Party’s Last Request at Issue prove... Position Initial Position Compromise Offered Compromise Defendants’ 2nd set of RFP 1, 2, 3, 4, 5, 6, 7, 8, Plaintiff has indicated Advise when the production Responsive documents Plaintiff has Responsive 9, 10, 11, 12, 13, requested documents will begin and provide a will be produced on a represented for well documents will be 14, 15 and 16 will be produced on a date by which Plaintiff will rolling basis until over a year that it will produced on a rolling rolling basis. The complete its production. completed. produce documents on basis until completed. parties do not dispute (June 10, 2021) a rolling basis. To Plaintiff produced relevance. date, the documents documents in partial have not been response to these produced. A deadline Requests on June 24, should be imposed. 2022, July 26, 2022, August 25, 2022 and August 30, 2022, and anticipates completion by September 30, 2022. — 1 — 8:20-cv-00289-RFR-MDN Doc # 142 Filed: 01/24/23 Page 41 of 47 - Page ID # 902 Moving Party: Defendants Defendants’ 2nd Counsel answered Plaintiff will provide a set of some interrogatories in verification page interrogatories a June 15, 2022 letter. within ten (10) days. Those should be answered as required by the rules with a signed verification page. 4 & 5 This is relevant to Clarified “Confidential “Confidential Plaintiff stated what The answer speaks Plaintiff’s trade secret Information” was intended Information” wrongfully the Confidential for itself and is more claims, breach of to mean the definition utilized and disclosed by Information “generally specifically defined on contract claims, provided in paragraph 29 of Defendants Konecky included.” Plaintiff is Exhibit A. breach of loyalty the Second Amended and Kiger generally required to identify the Furthermore, Plaintiff claims, conspiracy Complaint. Plaintiff must included customer Confidential objected to claims, and aiding respond substantively or information, carrier Information. Defendants’ Second and abetting claims. confirm it is unaware of any information, Set of Interrogatories confidential information rates, contact on the grounds that which was retained and information and lane Defendants have utilized by Konecky and information, as more exceeded the Kiger. specifically described on numerical Exhibit A interrogatory limit, but produced with Plaintiff’s agreed to answer to initial Interrogatory the same extent Answers. Plaintiff answered with respect to the other Defendants, which Plaintiff has done. 6 This is relevant to This Interrogatory requests Defendant Kiger Plaintiff did not Plaintiff objected to Plaintiff’s breach of the name of any customer attempted to solicit each completely answer the Defendants’ Second contract claim. or employee that Kiger of the ten customers interrogatory. Plaintiff Set of Interrogatories attempted to solicit from designated has not provided the on the grounds that RFG. Plaintiff did not by Plaintiff on the letter date(s) upon which the Defendants have respond substantively and to Kiger dated alleged solicitation or exceeded the instead stated that September 4, 2019. diversion occurred. numerical “discovery is ongoing.” Kiger solicited and/or interrogatory limit, but Please confirm that, at this aided NORAG’s agreed to answer to time, Plaintiff is unaware of the same extent — 2 — KC 19184527.1 8:20-cv-00289-RFR-MDN Doc # 142 Filed: 01/24/23 Page 42 of 47 - Page ID # 903 Moving Party: Defendants any attempt to solicit any solicitation of Jordan Plaintiff answered employee or customer from Eggli and Crystal with respect to the RFG by Kiger, or promptly Konecky. other Defendants, supplement. which Plaintiff has done. 7 This is relevant to This Interrogatory requests Defendant Kiger Plaintiff’s answer does Plaintiff objected to causation and the name of any RFG attempted to solicit each not answer the Defendants’ Second damages elements of employee who conducted of the ten customers interrogatory. Set of Interrogatories Plaintiff’s claims. business with any of the ten designated on the grounds that applicable customers. You by Plaintiff on the letter Defendants have object to this interrogatory to Kiger dated exceeded the on the basis that the term September 4, 2019. numerical “conduct[] business” is Defendant Needham, interrogatory limit, but vague. Courts have Defendant Eggli, agreed to answer to consistently held that the Defendant Konecky and the same extent “over-technical reading of Defendant NORG Plaintiff answered specific terms in an attempt solicited or aided in the with respect to the to evade the need to solicitation of the ten other Defendants, respond” is impermissible. customers designated which Plaintiff has Vermeer Mfg. Co. v. Toro by Plaintiff on the letter done. Co., No. 417CV00076 to Kiger dated CRWHCA, 2020 WL September 4, 2019. 8257205, at *6 (S.D. Iowa Apr. 20, 2020). Here, “even if the term [“conduct business”] could be considered vague in certain circumstances, it is not vague when used between these parties nor in the context of these requests,” because both parties are well-aware of what business RFG conducts. Please confirm no employee conducted any business with the clients or promptly supplement your answer to — 3 — KC 19184527.1 8:20-cv-00289-RFR-MDN Doc # 142 Filed: 01/24/23 Page 43 of 47 - Page ID # 904 Moving Party: Defendants this Interrogatory with the name of each RFG employee. 8 This relevant to This interrogatory asks Defendants Kiger, This answer should be Plaintiff will serve a Plaintiff’s tortious Plaintiff to identify the Konecky and NORAG provided in a sworn sworn interrogatory interference claim. existing and prospective interfered with the interrogatory response within ten business relationships that relationship response. (10) days. you assert Kiger, Konecky, Plaintiff establish with or NORAG have each of the clients intentionally and identified on the lists unjustifiably interfered with. provided to Defendants Plaintiff’s only substantive Needham, response to this Eggli and Kiger. Interrogatory is that “Plaintiff refers to and incorporates herein its Supplemental Answer to First Interrogatory No. 12.” The response to Interrogatory No. 12 is not in any way responsive to this request, rather it only responds with respect to Defendants Needham and Eggli. Please confirm that you are not able to identify any existing or prospective business relations that Kiger, Konecky, or NORAG interfered with. 9 This is relevant to This Interrogatory requests Defendants Kiger and Plaintiff did not Plaintiff objected to Plaintiff’s trade secret all material facts in support Konecky solicited and or completely answer the Defendants’ Second claims, breach of of Plaintiff’s solicitation conducted business with interrogatory. Set of Interrogatories loyalty claims, and claim. Plaintiff did not offer customers identified in on the grounds that breach of contract a substantive response to the lists provided to Defendants have claims. this Interrogatory, instead Defendants Needham, exceeded the simply stating that Eggli and Kiger, as numerical “discovery is ongoing.” confirmed interrogatory limit, but — 4 — KC 19184527.1 8:20-cv-00289-RFR-MDN Doc # 142 Filed: 01/24/23 Page 44 of 47 - Page ID # 905 Moving Party: Defendants Please either confirm that by customers and agreed to answer to there are no material facts electronic messages. the same extent which support Plaintiff’s Defendants were in Plaintiff answered solicitation claim at this possession of with respect to the time, or promptly Confidential Information other Defendants, supplement the response utilized for the purposes which Plaintiff has with the appropriate of soliciting Plaintiff’s done. information. customers. 10 This is relevant to Defendants Kiger, Plaintiff stands on Defendants Kiger, Plaintiff objected to each of Plaintiff’s Konecky, and NORAG did excess interrogatory Konecky, and NORAG Defendants’ Second claims against not exceed 25 objection. did not exceed 25 Set of Interrogatories NORAG. interrogatories. interrogatories. on the grounds that Defendants have exceeded the numerical interrogatory limit, but agreed to answer to the same extent Plaintiff answered with respect to the other Defendants, which Plaintiff has done. 11 This is relevant to Defendants Kiger, Konecky, Plaintiff stands on Defendants Kiger, This Interrogatory Plaintiff’s trade and NORAG did not exceed excess interrogatory Konecky, and NORAG exceeded the scope secrets claims 25 interrogatories. objection. did not exceed 25 of Defendants’ First against NORAG. interrogatories. Set of Interrogatories 12 This relevant to This Interrogatory requests Defendants Konecky, Plaintiff did not Plaintiff objected to Plaintiff’s tortious that Plaintiff state the Kiger, and NORAG completely answer the Defendants’ Second interference claim. material facts in support of interfering with Plaintiff’s interrogatory. Plaintiff’s Set of Interrogatories its tortious interference business relationships general answer lacks on the grounds that claim against Konecky, with customers identified sufficient specificity Defendants have Kiger, and NORAG. Plaintiff on customer lists and merely reasserts exceeded the did not offer a substantive provided to Defendants allegations. numerical response to this Needham, Eggli and interrogatory limit, but Interrogatory, instead Kiger by soliciting and agreed to answer to simply stating that conducting business in the same extent “discovery is ongoing.” Plaintiff answered — 5 — KC 19184527.1 8:20-cv-00289-RFR-MDN Doc # 142 Filed: 01/24/23 Page 45 of 47 - Page ID # 906 Moving Party: Defendants Please either confirm that violation of covenants with respect to the that, at this time, there are not to other Defendants, no material facts which compete and by utilizing which Plaintiff has support Plaintiff’s tortious Confidential Information done. interference claim against belonging to Plaintiff. Konecky, Kiger, and NORAG, or promptly supplement. 13 This is relevant to This Interrogatory requests Defendants Konecky, Plaintiff did not Plaintiff objected to Plaintiff’s conspiracy that Plaintiff identify each Kiger, and NORAG completely answer the Defendants’ Second claim. overt act committed by conspired with interrogatory, your Set of Interrogatories Konecky, Kiger, or NORAG Defendants general answer lacks on the grounds that in furtherance of its civil Needham and Eggli to sufficient specificity Defendants have conspiracy claim. Plaintiff solicit and conduct and merely reasserts exceeded the did not offer a substantive business in violation of allegations. numerical response to this covenants not to interrogatory limit, but Interrogatory, instead compete and agreed to answer to simply stating that by utilizing Confidential the same extent “discovery is ongoing.” Information belonging to Plaintiff answered Please either confirm that, Plaintiff. with respect to the at this time, Plaintiff is other Defendants, unaware of any overt act which Plaintiff has performed by Konecky, done. Kiger, or NORAG in furtherance of the alleged civil conspiracy, or promptly supplement. 14 This relevant to This Interrogatory requests Defendants will produce Plaintiff indicated it will Plaintiff cannot more damages for that Plaintiff identify each information establish produce information to fully respond to this Plaintiff’s claims. customer it claims to have lost revenue for each of establish lost revenue Interrogatory answer lost as a result of Konecky, the clients listed in client for each of the clients at this time because Kiger, and NORAG. Plaintiff lists provided to listed in client lists the extent of its loss did not offer a substantive Needham, Eggli, and provided to Needham, is still unknown. response to this Kiger. Eggli, and Kiger and Discovery is ongoing Interrogatory, instead damages. To date, and Plaintiff is still simply stating that Plaintiff has not determining the “discovery is ongoing.” produced that extent of its damages. Please either confirm that, information. Plaintiff produced — 6 — KC 19184527.1 8:20-cv-00289-RFR-MDN Doc # 142 Filed: 01/24/23 Page 46 of 47 - Page ID # 907 Moving Party: Defendants at this time, you are updated revenue data unaware of any customer in June and will lost as a result of Konecky, provide loss data and Kiger, or NORAG, or supporting promptly supplement. information when full scope of loss is known. 15 This is relevant to This Interrogatory requests Defendants will produce Plaintiff indicated it will Plaintiff cannot more damages. that you identify all information establish produce information to fully respond to this damages which you have lost revenue for each of establish lost revenue Interrogatory answer sustained as a result of the clients listed in client for each of the clients at this time because Konecky, Kiger, or lists provided to listed in client lists the extent of its loss NORAG’s actions. You do Needham, Eggli, and provided to Needham, is still unknown. not offer a substantive Kiger. Eggli, and Kiger and Discovery is ongoing response to this damages. To date, and Plaintiff is still Interrogatory, instead Plaintiff has not determining the simply stating that produced that extent of its damages. “discovery is ongoing.” information. Plaintiff produced Please either confirm that, updated revenue data at this time, you are not in June and will aware of any damages provide loss data and caused by Konecky, Kiger, supporting or NORAG’s actions, or information when full promptly supplement your scope of loss is response with the known. appropriate information. 16 This is relevant to This Interrogatory requests Plaintiff stands on Defendants Kiger, This Interrogatory Plaintiff’s claims for that Plaintiff identify all excess interrogatory Konecky, and NORAG exceeded the scope tortious interference, communications which it objection did not exceed 25 of Defendants’ First breach of contract, have had with any of Kiger’s interrogatories. Set of Interrogatories breach of loyalty. former clients. Plaintiff did not offer a substantive response to this Interrogatory, instead simply stating that “discovery is ongoing.” Please either confirm that, at this time, RFG has not — 7 — KC 19184527.1 8:20-cv-00289-RFR-MDN Doc # 142 Filed: 01/24/23 Page 47 of 47 - Page ID # 908 Moving Party: Defendants had any communications with Kiger’s former clients, or promptly supplement. 17 This is relevant to This Interrogatory requests Kiger and Konecky Plaintiff did not Plaintiff objected to Plaintiff’s claims for that Plaintiff identify all acts aided and abetted completely answer the Defendants’ Second breach of loyalty. performed by Kiger or Defendants Needham interrogatory. Plaintiff’s Set of Interrogatories Konecky which it alleges and NORAG by general answer on the grounds that constituted breaches of supplying information regarding Kiger and Defendants have loyalty. Plaintiff did not offer regarding customers, Konecky supplying exceeded the a substantive response to carriers, and employees information regarding numerical this Interrogatory, instead of Plaintiff, while customers, carriers, interrogatory limit, but simply stating that still employed by and employees of agreed to answer to “discovery is ongoing.” Plaintiff. Konecky also Plaintiff, while still the same extent Please either confirm that, breached her duty of employed by Plaintiff Plaintiff answered at this time, Plaintiff is loyalty by retaining merely reasserts its with respect to the unaware of any actions access to the allegations. other Defendants, performed by Kiger or Google Drive and which Plaintiff has Konecky which constitute provided access to the done. breaches of the duty of other Defendants. loyalty, or promptly supplement. 18 This is relevant to Plaintiff’s only substantive Kiger and Konecky This answer should be Plaintiff will serve a Plaintiff’s trade secret response to this misappropriated the provided in a sworn sworn interrogatory claims. Interrogatory is that “Plaintiff trade secrets identified interrogatory response within ten refers to and incorporates in Plaintiff’s Answer to response. (10) days. herein its Answer to First Interrogatory No. 18. Interrogatory No. 24.” Additionally, Konecky Please confirm that Plaintiff misappropriated the cannot identify any trade Google Drive and secret documents that it information contained claims Kiger and Konecky therein. misappropriated. Counsel for Plaintiff: Michael Degan Counsel for Defendant: Joshua Dickinson, Madison Perry Date: August 31, 2022. — 8 — KC 19184527.1