Brunckhorst III v. Bischoff

Background

The court addressed three discovery-related motions. Eric Bischoff moved to compel Frank Brunckhorst III to produce records of certain non-personal phone calls. Bischoff also requested a sixth extension of the discovery schedule. Brunckhorst moved to compel Schulte Roth & Zabel LLP, which the opinion identifies as Bischoff’s counsel in the action, to respond to a subpoena.

The broader dispute includes whether Brunckhorst qualified as an “Active Employee” under the Shareholder’s Agreement when shares of Boar’s Head were transferred in May 2021. The court had previously determined that Brunckhorst’s work activities were relevant to that issue.

Bischoff’s Motion to Compel

Bischoff narrowed his request for phone records to calls from January 1, 2021, through February 28, 2022, involving people associated with Boar’s Head Provisions, Co., Inc. and its affiliates, Farbest Foods, Carnegie Mellon University, or New York Foundling Hospital. He argued that the records could bear on whether Brunckhorst was a full-time Boar’s Head employee and whether he devoted most of his business time to Farbest Foods.

Brunckhorst argued that the records would not show his employment status, that discovery on this issue was already sufficient, and that reviewing the calls would be burdensome. Applying the rule permitting discovery of nonprivileged information that is relevant and proportional to the case, the court rejected those arguments. It found the narrowed request proportional and not unreasonably cumulative, duplicative, or burdensome. The court therefore granted Bischoff’s motion to compel.

Extension of Discovery

Bischoff requested forty-five additional days to take up to three depositions, address follow-up document requests, resolve discovery objections, and potentially seek additional documents from Boar’s Head. The Trustees opposed an extension, and Brunckhorst consented only to a more limited extension.

The court found good cause because Bischoff had acted diligently and some follow-up discovery could not reasonably be completed under the existing schedule. The court granted Bischoff permission to depose Vahan Ayvazian and, if necessary, Susan Stravitz Kemp and David Atschiller. The parties could also complete discovery concerning three document requests Bischoff served on December 13, 2022, address certain earlier document and admission requests, and pursue a motion to compel concerning documents connected to a deposition of Boar’s Head if good-faith efforts to resolve the issue failed.

The court extended fact discovery to January 30, 2023, and expert discovery to May 17, 2023. Any further request to extend fact discovery had to be made at least ten days before the deadline.

Brunckhorst’s Motion to Compel

Brunckhorst asked the court to compel Schulte Roth & Zabel to respond to a November 2, 2022 subpoena. The court did not decide that motion in this order. It directed Brunckhorst to file an opening brief of no more than ten pages by January 6, 2023; Bischoff to respond by January 16, 2023; and Brunckhorst to file a reply of no more than five pages by January 23, 2023. The court also directed Brunckhorst to identify any additional subpoena limitations agreed to by the parties. If the court later granted the motion, it stated that it would extend fact discovery only to complete any required production.

Disposition

Judge John P. Cronan granted Bischoff’s motion to compel and granted the request to extend fact discovery for the limited purposes described in the order. The court also extended expert discovery and ordered additional briefing on Brunckhorst’s motion to compel. The Clerk of Court was directed to close the motions pending at Docket Numbers 198, 199, 200, and 211.