DISCOVERY PLAN AND KEY DEPOSITION OUTLINES
PRIVILEGED AND CONFIDENTIAL — ATTORNEY WORK PRODUCT
This document constitutes attorney work product prepared in anticipation of litigation and is protected from disclosure under Fed. R. Civ. P. 26(b)(3) and the attorney work-product doctrine. This document also contains attorney-client privileged communications. Do not disclose, copy, or distribute without authorization from Calderwood & Harkness LLP.
March 18, 2024
Prepared by:
Omar Siddiqui, Lead Associate Christy Bauer, Working Associate Calderwood & Harkness LLP
Addressed to:
Catherine Bloom, Responsible Partner Alan Ngo, Billing Partner Calderwood & Harkness LLP
Re:
Crestline Packaging Solutions LLC v. Harlow Chemical Supply Inc. et al. Case No. 2:24-cv-00891 (S.D. Ohio, Eastern Division) Hon. Patricia Langford presiding Matter No. 1006-00004
Purpose: This memorandum sets forth the comprehensive discovery plan for the above-captioned action and provides preliminary deposition outlines for three key witnesses: Gerald W. Norris, Kenneth Fielding, and Amanda Trent. This memorandum is intended to serve as the working roadmap for discovery, subject to refinement as the case develops and additional facts emerge through document production and witness examinations. All references to dollar amounts, document volumes, and factual allegations are based on information currently available to the team and are subject to revision.
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I. INTRODUCTION AND PROCEDURAL STATUS
A. Case Overview
Crestline Packaging Solutions LLC ("CPS" or "Plaintiff") filed its Verified Complaint and Motion for Temporary Restraining Order on February 26, 2024, in the United States District Court for the Southern District of Ohio, Eastern Division. The action is assigned to the Honorable Patricia Langford. CPS asserts five counts against three defendants: Harlow Chemical Supply Inc. ("Harlow"), Gerald W. Norris (individually as CEO and sole shareholder of Harlow), and Kenneth Fielding (individually as VP of Technical Operations at Harlow). The five counts are as follows:
Count I: Misappropriation of Trade Secrets under the Defend Trade Secrets Act ("DTSA"), 18 U.S.C. §§ 1836–1839.
Count II: Misappropriation of Trade Secrets under the Ohio Uniform Trade Secrets Act ("Ohio UTSA"), Ohio Rev. Code §§ 1333.61–1333.69.
Count III: Breach of Contract — specifically, Sections 7 (Confidentiality), 8.2 (Reverse Engineering Prohibition), 9.1 (Non-Competition), and 9.3 (Customer Non-Solicitation) of the Toll Manufacturing Agreement dated March 15, 2017 (the "TMA").
Count IV: Tortious Interference with Business Relationships.
Count V: Unjust Enrichment.
The central factual allegation is that Harlow, through the actions of Fielding and at the direction of Norris, reverse-engineered CPS's proprietary barrier coating product, CPS-BC-1147, using confidential formulation information and materials (specifically CPS Concentrate A) that Harlow received in the course of its toll manufacturing relationship with CPS. Harlow then developed and commercialized a competing product — ShieldCoat Pro 900 — using the misappropriated trade secret information, and directed its Sales Director, Amanda Trent, to solicit CPS's customers with ShieldCoat Pro 900 at discounted pricing.
On March 4, 2024, Judge Langford granted CPS's Motion for Temporary Restraining Order. The TRO restrains Harlow from manufacturing, marketing, offering for sale, or selling ShieldCoat Pro 900, and orders the preservation of all documents and electronic data in Harlow's possession, custody, or control relating to ShieldCoat Pro 900, CPS-BC-1147, CPS Concentrate A, and communications with Archer Material Sciences Inc. The TRO further prohibits the destruction, alteration, or transfer of any such documents or data.
The preliminary injunction hearing is currently scheduled for April 11, 2024. Preparation for that hearing is proceeding on a parallel track and requires expedited production of certain key documents, as discussed further below in the discovery Timeline section.
B. Defendants' Anticipated Defense
On February 5, 2024, Harlow's counsel — Brian Whitaker of Voss Gentry & Whitaker LLP ("VGW") — transmitted a letter to Calderwood & Harkness in response to our January 18, 2024 cease-and-desist letter. In that letter, VGW denied that Harlow had misappropriated any CPS trade secrets and asserted that ShieldCoat Pro 900 was "the product of Harlow's own independent research and development efforts." The VGW letter did not address the Archer Material Sciences engagement, did not address Kenneth Fielding's retention of CPS confidential information after TMA termination, and did not provide any specific factual basis for the independent-development claim.
Based on the VGW letter and our assessment of the case, we anticipate that defendants' primary defense will be independent development — i.e., that Harlow developed ShieldCoat Pro 900 through its own R&D efforts, without reference to or reliance upon CPS's proprietary formulation information. This defense is inherently implausible given the forensic evidence (discussed below), but it must be systematically dismantled through discovery. Every element of the discovery plan set forth herein is designed, directly or indirectly, to undermine this defense by establishing the factual chain of misappropriation and the absence of any legitimate independent development effort.
We also anticipate potential secondary defenses, including: (i) that the CPS-BC-1147 formulation does not qualify as a trade secret because it lacks novelty or was not subject to reasonable measures of secrecy; (ii) that the TMA's restrictive covenants are unenforceable as unreasonable restraints on trade; and (iii) that CPS cannot establish damages with reasonable certainty. The discovery plan addresses each of these anticipated defenses.
C. Discovery Objectives
The overarching objectives of the discovery plan are fourfold:
First, we must establish the complete factual chain of misappropriation. The critical facts that must be proven through discovery include: Harlow's engagement of Archer Material Sciences Inc. (located at 9300 Harding Street, Indianapolis, IN 46221) to reverse-engineer CPS Concentrate A in or about September 2022; Kenneth Fielding's unauthorized retention of batch records and analytical data after the TMA terminated on January 31, 2023; and the near-identical compositional match between ShieldCoat Pro 900 and CPS-BC-1147. On this last point, the preliminary report of Thornburg Analytics LLC, authored by Dr. Elena Vasquez and dated December 22, 2023, concluded that ShieldCoat Pro 900 matches CPS-BC-1147 in all 14 chemical constituents within ±0.3% by weight — a result that Dr. Vasquez characterized as "not achievable through independent development" and "consistent only with access to the complete formulation." Discovery is necessary to corroborate and supplement this forensic analysis with documentary evidence from Harlow's own files.
Second, we must document the customer solicitation campaign conducted by Amanda Trent and establish the resulting commercial harm to CPS. Our investigation has identified at least five CPS customers that were contacted by Trent or other Harlow personnel regarding ShieldCoat Pro 900: Mapleridge Paper Corp., Pinnacle Flexible Films LLC, Orion Paperboard Inc., Great River Packaging Co., and TerraFold Industries LLC. There may be additional customers beyond these five, and discovery will be designed to identify the full scope of the solicitation effort.
Third, we must quantify CPS's damages. This requires obtaining ShieldCoat Pro 900 sales data, revenue figures, cost data, and customer pricing from Harlow, as well as documenting CPS's own lost sales and price erosion. This data is essential to support the damages analysis being conducted by Jeffrey Callahan of Meridian Forensic Consulting Group LLC, whose preliminary damages framework estimates total damages in the range of $8.9 million to $12.6 million.
Fourth, we must establish the willful and malicious nature of defendants' conduct to support CPS's entitlement to exemplary damages and attorneys' fees under both the DTSA (18 U.S.C. § 1836(b)(3)(C), authorizing up to double damages for willful and malicious misappropriation) and the Ohio UTSA (Ohio Rev. Code § 1333.63(B), authorizing exemplary damages up to twice the award). The fact that Harlow commissioned the reverse engineering of CPS Concentrate A while the tolling relationship was still active, in direct contravention of TMA Section 8.2's express reverse-engineering prohibition, is strong evidence of willfulness. Discovery must further develop this willfulness evidence, including evidence of Gerald Norris's personal authorization and direction of the scheme.
II. DISCOVERY PLAN — OVERVIEW AND TIMELINE
A. Governing Rules
Discovery in this action is governed by the Federal Rules of Civil Procedure, Rules 26 through 37, as well as the Local Rules of the United States District Court for the Southern District of Ohio. Particular attention should be given to the following provisions:
• Fed. R. Civ. P. 26(a)(1): Initial disclosures are due within 14 days of the Rule 26(f) conference. Given that the Rule 26(f) conference has not yet occurred (it is anticipated to take place on or about March 25, 2024), initial disclosures will be due on or about April 8, 2024 — just three days before the preliminary injunction hearing. We will seek to have initial disclosures served on an expedited basis, or alternatively will ensure that the critical documents needed for the preliminary injunction hearing are obtained through the TRO preservation order and expedited discovery requests.
• Fed. R. Civ. P. 26(b)(1): Scope of discovery — proportionality considerations. Given the magnitude of the case (estimated damages of $8.9M–$12.6M), the complexity of the trade secret and breach of contract claims, and the parties' access to relevant information, we expect broad discovery to be within the bounds of proportionality.
• Fed. R. Civ. P. 30: Depositions — presumptive limit of 10 depositions per side. We anticipate taking between 5 and 8 depositions (3 key defendant witnesses, possible 1–2 third-party witnesses, possible 1–2 additional defendant personnel identified through document review). We do not currently anticipate needing to seek leave to exceed the 10-deposition limit.
• Fed. R. Civ. P. 33: Interrogatories — presumptive limit of 25 per party, including subparts. The interrogatories set forth below fall well within this limit.
• Fed. R. Civ. P. 34: Document requests — no presumptive numerical limit under federal rules.
• Fed. R. Civ. P. 36: Requests for admission — no presumptive numerical limit under federal rules.
• S.D. Ohio Local Rule 37.1: Requires good-faith conferral before filing discovery motions.
We anticipate filing a proposed scheduling order with the Court following the Rule 26(f) conference. The proposed scheduling order should include a discovery cutoff of no later than August 31, 2024, with fact-witness depositions completed by July 31, 2024, and expert depositions completed by August 31, 2024.
B. Proposed discovery Timeline
Discovery is organized into four overlapping phases, designed to build the factual record progressively and to support the key litigation milestones (preliminary injunction hearing, summary judgment, and trial):
Phase 1 (March–April 2024): Initial Disclosures, Expedited Document Production, and First Round of Written discovery
This phase focuses on (a) serving the first round of document requests and interrogatories on Harlow and the individual defendants; (b) obtaining expedited document production necessary for the preliminary injunction hearing on April 11, 2024; and (c) exchanging initial disclosures. We will seek agreement from VGW (or, if necessary, a court order) for expedited production of a limited subset of key documents prior to the April 11 hearing — specifically, any Archer Material Sciences reports or communications, any documents reflecting the timeline of ShieldCoat Pro 900 development, and any documents reflecting compliance or non-compliance with TMA return/destruction obligations. If VGW refuses to cooperate on expedited production, we should be prepared to file an emergency motion to compel.
Phase 2 (April–June 2024): Full Document Production, Second Round of Written discovery, and Expert Coordination
During this phase, we expect to receive the bulk of Harlow's responsive document production. We will conduct a comprehensive review and analysis of the produced documents, supplement our discovery requests if necessary with a targeted second round of document requests, and receive Harlow's interrogatory responses. We will also coordinate the production of documents to our expert consultants — Dr. Elena Vasquez at Thornburg Analytics LLC and Jeffrey Callahan at Meridian Forensic Consulting Group LLC — so that they may finalize their respective analyses and prepare formal expert reports. Expert disclosures under Fed. R. Civ. P. 26(a)(2) should be coordinated with the scheduling order; we propose CPS's expert reports be due by June 30, 2024, with defendants' expert reports due 30 days thereafter.
Phase 3 (May–July 2024): Depositions of Key Fact Witnesses
Depositions of the three key defendant witnesses — Kenneth Fielding, Gerald W. Norris, and Amanda Trent — will be conducted during this phase, in that order for strategic reasons discussed in detail in Section VIII below. CPS witnesses Dr. Margaret Yuen and Brian Novotny will also be prepared for defense depositions that may occur during this phase. Third-party depositions of Archer Material Sciences Inc. personnel may also be scheduled during this period if necessary based on the results of the third-party subpoena.
Phase 4 (July–August 2024): Expert Depositions, Supplemental discovery, and Mediation Preparation
Expert depositions will be conducted during this phase. We also anticipate the need for supplemental discovery, including follow-up document requests based on information learned during fact depositions, and requests for supplemental interrogatory responses. If the Court orders mediation or the parties agree to mediate, this phase will also encompass mediation preparation, including the preparation of a mediation statement and coordination with the damages expert to refine the damages analysis for settlement purposes.
C. Anticipated Volume of Document Production
CPS's production: We anticipate producing approximately 18,000 documents to defendants, encompassing formulation development records, TMA-related correspondence, CPS Concentrate A shipping and chain-of-custody records, internal investigation files, customer relationship records, and financial records relating to CPS-BC-1147 revenue and damages. Our production will be organized by custodian and document category to facilitate efficient review by the Court and opposing counsel. The privilege review is discussed in Section VI.B below.
Harlow's production: Given the breadth of our document requests, which cover seven major categories spanning the full range of factual issues in this case, we anticipate that Harlow's production will be substantial. For planning purposes, and based on the scope of the requests described in Section III below, we estimate Harlow's production at approximately 42,000 documents, though the actual volume will depend on the extent of Harlow's document retention practices and the outcome of any disputes over the scope of production. The document review team should be staffed accordingly to handle a production of this magnitude within the Phase 2 timeline.
D. E-discovery Considerations
The electronic discovery component of this case is critical. Several key categories of evidence are expected to exist primarily or exclusively in electronic form, including email communications, CRM records, electronic laboratory records, and financial data. The following e-discovery considerations should be addressed:
Custodian identification: We will seek to identify the following custodians for ESI preservation and collection at Harlow: (i) Gerald W. Norris (CEO); (ii) Kenneth Fielding (VP of Technical Operations); (iii) Amanda Trent (Sales Director); (iv) any additional R&D or quality assurance personnel involved in ShieldCoat Pro 900 development (to be identified through interrogatories); and (v) any IT personnel responsible for document management or email systems administration. The TRO preservation order already requires preservation of relevant ESI, but we should confirm at the Rule 26(f) conference that Harlow has implemented a litigation hold covering all identified custodians and relevant data sources.
Format of production: We will request that ESI be produced in native format for emails (with full metadata, including sender, recipient, date/time stamps, and attachment information) and for electronic laboratory records, spreadsheets, and databases. For non-electronic documents that have been scanned, we will accept image files (TIFF or PDF) with load files containing extracted text and metadata.
Forensic imaging: CPS's IT team has already conducted forensic analysis of CPS's own systems and identified evidence that CPS Concentrate A was shipped to Archer Material Sciences Inc. in September 2022. We should coordinate with CPS's IT forensics consultant to ensure that the methodology and findings are preserved in a form suitable for expert testimony. We should also consider requesting forensic imaging of Fielding's Harlow-issued devices (laptop, desktop, mobile phone) and any personal devices used for Harlow business, to identify any CPS confidential information retained in electronic form and any evidence of data deletion or spoliation.
Search terms and protocols: At the Rule 26(f) conference, we should propose agreement on search terms and protocols for ESI review and production. Key search terms should include, at minimum: "CPS," "Crestline," "CPS-BC-1147," "BC-1147," "Concentrate A," "Archer," "Archer Material," "barrier coating," "ShieldCoat," "ShieldCoat Pro," "Pro 900," "Mapleridge," "Pinnacle," "Orion Paperboard," "Great River," "TerraFold," "TMA," "toll manufacturing," "trade secret," "confidential," "non-compete," and "non-solicitation," along with reasonable variants and abbreviations.
III. DOCUMENT REQUESTS TO DEFENDANTS
The following document requests will be served on all defendants (Harlow Chemical Supply Inc., Gerald W. Norris, and Kenneth Fielding) in the first round of written discovery. They are organized by subject-matter category and accompanied by a brief rationale for each category to assist the team in anticipating and responding to any objections from VGW. Each request will be drafted in final form with appropriate definitions, instructions, and date ranges before service. The descriptions below summarize the substance and scope of each category.
A. Category 1: Archer Material Sciences Inc. Communications and Engagement Records
Request 1.1: All communications between Harlow Chemical Supply Inc. (including any officer, director, employee, agent, consultant, or representative of Harlow) and Archer Material Sciences Inc. (located at 9300 Harding Street, Indianapolis, IN 46221), or any officer, director, employee, agent, consultant, or representative of Archer Material Sciences Inc., from January 1, 2017 through the present date, including but not limited to emails, letters, memoranda, text messages, instant messages, voicemails, and records of telephone calls.
Request 1.2: All engagement letters, work orders, statements of work, service agreements, invoices, payment records, receipts, and purchase orders between Harlow and Archer Material Sciences Inc. from January 1, 2017 through the present date.
Request 1.3: All analytical reports, test results, compositional analyses, chromatographic data, spectroscopic data, or other technical documents received by Harlow from Archer Material Sciences Inc., including but not limited to any analysis of CPS Concentrate A, any substance identified as a "barrier coating concentrate," any substance identified by a CPS product name or code, or any substance that was supplied to Harlow by CPS under or in connection with the Toll Manufacturing Agreement dated March 15, 2017.
Request 1.4: All internal Harlow communications (including emails, memoranda, instant messages, meeting notes, and any other written or electronic communications among Harlow personnel) referencing or relating to Archer Material Sciences Inc., CPS Concentrate A, or the analysis, testing, or reverse engineering of any material supplied by CPS to Harlow.
Rationale: These requests target the core evidence of deliberate reverse engineering. CPS's internal investigation, conducted with the assistance of its IT forensics team, identified that CPS Concentrate A was sent to Archer Material Sciences Inc. in or about September 2022 — five months before the TMA terminated on January 31, 2023 — for the apparent purpose of determining the composition of the five undisclosed proprietary additive components that CPS had intentionally withheld from Harlow under the Partial Formulation Disclosure. This is the linchpin evidence of deliberate, premeditated misappropriation. Archer Material Sciences is a well-known commercial analytical laboratory with capabilities in compositional analysis of chemical blends, including gas chromatography-mass spectrometry (GC-MS), inductively coupled plasma (ICP) spectroscopy, and related techniques. If Harlow obtained a full compositional analysis of CPS Concentrate A from Archer, the independent-development defense collapses entirely.
We anticipate that VGW may object on relevance and proportionality grounds, particularly regarding the broad date range (January 1, 2017 through the present). The date range is necessary, however, to capture any engagement between Harlow and Archer that predates the September 2022 analysis — for example, to determine whether Harlow had an ongoing analytical services relationship with Archer or whether the engagement was specifically commissioned for the purpose of analyzing CPS materials. If VGW presses back on the date range, we are prepared to negotiate to January 1, 2020 as a compromise, but should not go narrower than that without a compelling reason.
B. Category 2: Kenneth Fielding's Retained Batch Records and Analytical Data
Request 2.1: All batch production records, manufacturing logs, process parameter logs, standard operating procedures, and quality assurance/quality control records related to the toll manufacturing of CPS-BC-1147 (also referred to as Harlow Product Code HC-7042 or any other Harlow-assigned designation) that were retained by Harlow or any Harlow employee, officer, or agent (including Kenneth Fielding individually) after January 31, 2023 (the TMA termination date).
Request 2.2: All analytical test results, laboratory reports, certificates of analysis, and stability testing records performed on CPS-BC-1147 or any CPS-supplied raw material, concentrate, or intermediate (including but not limited to CPS Concentrate A) at any time during or after the tolling relationship, from March 15, 2017 through the present date.
Request 2.3: All documents evidencing the disposition, retention, copying, scanning, photographing, or transfer of any CPS confidential information (as defined in Section 7 of the TMA) after January 31, 2023, including but not limited to any certification, log, inventory, or correspondence reflecting the return, destruction, or continued possession of such information.
Request 2.4: Kenneth Fielding's complete personnel file, including but not limited to any records of job assignments, project assignments, performance evaluations, directives, or instructions related to CPS-BC-1147, ShieldCoat Pro 900 development, or any barrier coating product development at Harlow.
Rationale: Under Sections 7 and 8.2 of the TMA, Harlow was required to maintain the confidentiality of all CPS proprietary information received during the tolling relationship and was expressly prohibited from reverse-engineering any CPS formulation or material. Upon termination of the TMA on January 31, 2023, Harlow was obligated to return or certify the destruction of all CPS confidential information within 30 days. Fielding's retention of batch records and analytical data after the termination date constitutes direct evidence of breach of the TMA's return/destruction obligation and, more significantly, provides the evidentiary foundation for demonstrating that Harlow had continued access to CPS proprietary information that was then used in the development of ShieldCoat Pro 900.
We anticipate that these records will show that Fielding had detailed working knowledge of CPS-BC-1147's manufacturing process, including the specific ratios in which CPS Concentrate A was combined with the nine disclosed constituents, the order-of-addition protocol, and the critical processing parameters (e.g., temperature, mixing speed, dwell time) — all of which are integral to CPS's trade secrets and would have facilitated the reverse engineering effort.
C. Category 3: ShieldCoat Pro 900 Development Records
Request 3.1: All documents relating to the conception, development, formulation, testing, scale-up, and commercialization of ShieldCoat Pro 900 (also referred to by any internal Harlow project name, code, or designation), including but not limited to laboratory notebooks, formulation worksheets, experimental design records, raw material procurement records, supplier quotations, pilot-line testing records, process development reports, scale-up records, meeting minutes, project status reports, and any other documents reflecting the creation and evolution of ShieldCoat Pro 900.
Request 3.2: All documents relating to any R&D budget, project plan, resource allocation, staffing plan, or timeline for ShieldCoat Pro 900 or any barrier coating product development at Harlow from January 1, 2020 through the present date.
Request 3.3: All FDA compliance testing records, regulatory submissions, safety data sheets (SDS), technical data sheets (TDS), and any other regulatory or compliance records for ShieldCoat Pro 900.
Request 3.4: Documents reflecting the timeline of ShieldCoat Pro 900 development, including but not limited to the date of initial formulation concept, the date of the first laboratory batch, the date of the first pilot batch, the date of the first commercial-scale production batch, and the date of the first sale to a customer.
Rationale: These development records are essential to testing and rebutting Harlow's independent-development defense. CPS's working theory — supported by the timeline evidence and the Thornburg Analytics report — is that development of ShieldCoat Pro 900 commenced only after, or concurrently with, the September 2022 Archer Material Sciences analysis of CPS Concentrate A, and that Harlow lacked any prior independent barrier coating development program. If this theory is correct, the development records should show: (a) no evidence of barrier coating R&D activity at Harlow prior to late 2022; (b) an abrupt acceleration of formulation work in the September 2022–January 2023 timeframe; and (c) a suspiciously rapid development timeline that is inconsistent with the kind of iterative, multi-year research effort that would be expected for a truly independent formulation of a 14-constituent barrier coating (by comparison, CPS's development of CPS-BC-1147 took 24 months and cost $3.8 million).
If, on the other hand, Harlow's production includes laboratory notebooks or other development records predating September 2022, we will need to evaluate those records carefully — ideally with Dr. Vasquez's assistance — to determine whether they represent genuine independent development work or have been fabricated or backdated. The absence of laboratory notebooks or other contemporaneous development records would itself be probative of the absence of independent development.
D. Category 4: Amanda Trent's Customer Solicitation Records
Request 4.1: All communications between Amanda Trent (or any Harlow sales, marketing, or business development personnel) and any current or former customer of CPS, including but not limited to Mapleridge Paper Corp., Pinnacle Flexible Films LLC, Orion Paperboard Inc., Great River Packaging Co., and TerraFold Industries LLC, from January 1, 2023 through the present date.
Request 4.2: All sales proposals, quotations, pricing sheets, bid responses, product data sheets, sample request forms, sample shipment records, and customer correspondence relating to ShieldCoat Pro 900.
Request 4.3: All CRM (customer relationship management) records, sales call logs, contact logs, pipeline or opportunity tracking records, and sales reporting or forecasting records related to ShieldCoat Pro 900, from January 1, 2023 through the present date.
Request 4.4: All documents reflecting the pricing of ShieldCoat Pro 900, including list prices, customer-specific pricing, discounts offered or approved, volume-based pricing tiers, and any comparative analysis of ShieldCoat Pro 900 pricing relative to CPS-BC-1147 pricing or any other competitor's pricing.
Rationale: These requests directly support both the tortious interference with business relationships claim and the breach of the customer non-solicitation covenant in TMA Section 9.3. CPS has evidence (through Brian Novotny's June 12, 2023 contact with Mapleridge Paper Corp.) that Trent offered ShieldCoat Pro 900 to Mapleridge at a price 15% below CPS's pricing for CPS-BC-1147. Discovery will establish the full scope of the solicitation effort, including whether CPS customers beyond the five already identified were also contacted, and the specific terms and pricing offered to each customer. This information is also essential for quantifying diverted sales and price erosion damages.
E. Category 5: ShieldCoat Pro 900 Sales and Financial Data
Request 5.1: Complete sales records for ShieldCoat Pro 900 from initial commercialization (on or about April 2023) through the present date, including for each sale: the customer name, volume sold (in pounds or other applicable unit of measure), unit price, total revenue, date of sale, and invoice number.
Request 5.2: All records reflecting Harlow's cost of goods sold, gross margin, operating margin, and profitability data for ShieldCoat Pro 900, including raw material costs, manufacturing overhead allocation, labor costs, and any other cost components.
Request 5.3: Harlow's audited or unaudited financial statements (including income statements, balance sheets, and cash flow statements) for fiscal years 2021, 2022, and 2023.
Request 5.4: All documents relating to Harlow's projected revenue, sales forecasts, business plans, strategic plans, or budget projections for ShieldCoat Pro 900, from January 1, 2022 through the present date.
Rationale: This financial data is essential for Meridian Forensic Consulting Group LLC's damages quantification. The data will support the calculation of (a) CPS's lost profits from sales diverted to Harlow (currently estimated at $5.1 million to $7.2 million); (b) Harlow's unjust enrichment/disgorgement (currently estimated at $2.3 million, based on Harlow's profits attributable to ShieldCoat Pro 900); and (c) CPS's price erosion damages resulting from Harlow's below-market pricing strategy (currently estimated at $1.5 million to $3.1 million). In total, CPS's damages range is currently estimated at $8.9 million to $12.6 million, before exemplary damages.
Harlow's overall financial statements are necessary for several purposes: (i) to provide context for assessing the relative financial significance of ShieldCoat Pro 900 to Harlow's business; (ii) to assess Harlow's ability to satisfy a judgment; and (iii) to support the unjust enrichment/disgorgement analysis, which requires an understanding of Harlow's cost structure and profitability. Based on publicly available information and CPS's internal knowledge of the tolling relationship, Harlow's estimated 2023 revenue was approximately $87.3 million. The financial statements will confirm or refine this estimate.
F. Category 6: Toll Manufacturing Agreement and Related Records
Request 6.1: Harlow's complete file relating to the Toll Manufacturing Agreement dated March 15, 2017, between CPS and Harlow, including but not limited to the original executed TMA, all amendments, addenda, and supplements, all correspondence between the parties relating to the TMA, all invoices issued under the TMA, all shipping records, and all notices given or received under the TMA (including the notice of termination).
Request 6.2: All internal Harlow communications (including emails, memoranda, meeting minutes, and instant messages) regarding the TMA, its terms, its performance, its termination, and Harlow's obligations under Sections 7 (Confidentiality), 8.2 (Reverse Engineering Prohibition), 9.1 (Non-Competition), and 9.3 (Customer Non-Solicitation).
Request 6.3: All records of CPS Concentrate A received by Harlow during the term of the TMA, including shipping manifests, bills of lading, receiving logs, inventory records, and chain-of-custody documentation from the date of first receipt through the present date.
Request 6.4: All documents reflecting Harlow's compliance (or non-compliance) with the TMA's return/destruction obligations upon termination on January 31, 2023, including any internal communications, certifications, destruction logs, return shipping records, or audit records relating to the disposition of CPS confidential information.
Rationale: The TMA is the foundational document in this case. It establishes the confidentiality obligations, the reverse-engineering prohibition, and the post-termination restrictive covenants that defendants are alleged to have violated. Harlow's complete TMA file will reveal the full history of the tolling relationship, including any disputes, modifications, or relevant communications that may bear on the parties' understanding of the agreement's terms. The CPS Concentrate A chain-of-custody records are particularly important because they will establish how much CPS Concentrate A Harlow received, when it was received, and what disposition was made of any excess or retained quantities — including whether CPS Concentrate A was diverted to Archer Material Sciences for analysis.
G. Category 7: Gerald W. Norris — Personal Involvement and Corporate Decision-Making
Request 7.1: All communications to or from Gerald W. Norris — in any capacity, including as CEO, shareholder, director, or individual — relating to CPS-BC-1147, CPS Concentrate A, ShieldCoat Pro 900, Archer Material Sciences Inc., any CPS customer, or the Toll Manufacturing Agreement, from January 1, 2017 through the present date.
Request 7.2: All board of directors resolutions, meeting minutes, management committee minutes, or other corporate governance documents authorizing, approving, or relating to the development, testing, commercialization, marketing, or sale of ShieldCoat Pro 900 or any barrier coating product at Harlow.
Request 7.3: All documents reflecting Gerald W. Norris's knowledge of the TMA's restrictive covenants (Sections 7, 8.2, 9.1, and 9.3) and his decision to proceed with the development and/or commercialization of ShieldCoat Pro 900 notwithstanding those restrictions, including any legal opinions, risk assessments, or strategic memoranda.
Rationale: Gerald W. Norris is named individually as a defendant in this action. CPS alleges that Norris, as CEO and sole shareholder of Harlow, personally authorized and directed the misappropriation of CPS's trade secrets and the breach of the TMA's restrictive covenants. Evidence of Norris's personal involvement in and direction of the scheme is essential to (a) establish his individual liability for trade secret misappropriation and tortious interference; (b) support the alter ego theory for imposing personal liability for Harlow's breaches; and (c) demonstrate the willful and malicious nature of the misconduct for purposes of exemplary damages under both the DTSA and the Ohio UTSA.
Given that Norris is the sole shareholder and CEO of a company with approximately 210 employees and $87.3 million in annual revenue, it is highly likely that a major strategic initiative like the development and commercialization of a new product line — particularly one that carries obvious legal risk given the existing TMA — would have required his knowledge and approval. The corporate governance documents and Norris's communications will establish the degree of his involvement.
IV. INTERROGATORIES TO DEFENDANTS
The following interrogatories will be served on Harlow Chemical Supply Inc. Additional interrogatories directed to the individual defendants, if needed, will be prepared separately. These interrogatories are designed to force defendants to commit to specific factual positions early in the case, creating a foundation for impeachment at depositions and trial.
A. Interrogatory 1: Independent Development Contention
Interrogatory No. 1: If Harlow contends that ShieldCoat Pro 900 was independently developed without reference to or reliance upon any CPS confidential information, trade secret, or proprietary material, state the following with specificity:
(a) The identity (name, title, and employer) of every person who participated in or contributed to the development of ShieldCoat Pro 900, including but not limited to the formulation, testing, scale-up, and commercialization of the product, together with a description of each such person's role, the dates of their involvement, and the nature of their specific contributions.
(b) The date on which development of ShieldCoat Pro 900 commenced, the date of the first laboratory formulation, the date of the first pilot-scale batch, and the date of the first commercial sale.
(c) All raw materials, technical references, published literature, patents, patent applications, academic papers, industry publications, prior art, or other sources of technical information used, consulted, or relied upon in developing the ShieldCoat Pro 900 formulation.
(d) If ShieldCoat Pro 900 was not developed using any information derived from the compositional analysis of CPS Concentrate A or any other CPS material, explain how the product came to match CPS-BC-1147 in all 14 chemical constituents within ±0.3% by weight, as identified in the preliminary report of Dr. Elena Vasquez of Thornburg Analytics LLC dated December 22, 2023.
This interrogatory is designed to pin defendants down on the specifics of their independent-development defense at the earliest possible stage. Subpart (d) is particularly important — it forces Harlow to offer some explanation for the near-identical compositional match, which is the single most powerful piece of evidence in our case. If Harlow's response is evasive, conclusory, or implausible, it will be powerful evidence of consciousness of guilt and can be used at the preliminary injunction hearing and at trial.
B. Interrogatory 2: Archer Material Sciences Engagement
Interrogatory No. 2: Identify all analytical services, testing, or other work performed by Archer Material Sciences Inc. (or any subsidiary, affiliate, or successor thereof) on behalf of Harlow from January 1, 2017 through the present date, including for each engagement:
(a) The date the work was commissioned and the date results were received.
(b) The nature of the analytical service or test performed.
(c) The identity and description of the material or substance analyzed or tested.
(d) The source or origin of the material submitted for analysis.
(e) The person at Harlow who authorized or requested the engagement.
(f) A summary of the results obtained.
Interrogatory No. 3: State whether any material supplied by CPS to Harlow — including but not limited to CPS Concentrate A, CPS-BC-1147, or any raw material, intermediate, or component thereof — was at any time submitted to Archer Material Sciences Inc. or any other third-party laboratory for compositional analysis, reverse engineering, chemical characterization, or testing of any kind. If so, identify the laboratory, the date of submission, the material submitted, the person at Harlow who authorized or directed the submission, and the results obtained.
C. Interrogatory 3: Customer Contacts and Sales
Interrogatory No. 4: Identify every customer, prospective customer, or other entity to whom Harlow or any Harlow representative offered, marketed, promoted, or sold ShieldCoat Pro 900 from January 1, 2023 through the present date, including for each such contact:
(a) The name and address of the customer or entity.
(b) The date of first contact by Harlow.
(c) The identity (name and title) of the Harlow representative who made the contact.
(d) The volume and revenue of any sales of ShieldCoat Pro 900 to that customer.
(e) Whether Harlow was aware, at the time of any such contact, that the customer was a current or former customer of CPS for CPS-BC-1147 or any other CPS product.
D. Interrogatory 4: Retention of CPS Confidential Information
Interrogatory No. 5: Identify all CPS confidential information (as that term is defined in Section 7 of the Toll Manufacturing Agreement dated March 15, 2017) that was in the possession, custody, or control of Harlow or any Harlow employee, officer, director, agent, or representative as of January 31, 2023 (the TMA termination date), or at any time thereafter, including:
(a) A description of each item or category of confidential information.
(b) The form in which the information existed (paper, electronic, or both).
(c) The location where the information was stored or maintained.
(d) The current status of each item or category of information (i.e., whether it has been returned to CPS, destroyed, or remains in Harlow's possession).
(e) The identity of any Harlow personnel who had access to each item or category of information after January 31, 2023.
Interrogatory No. 6: Describe in detail all steps taken by Harlow to return or destroy CPS confidential information following the termination of the TMA on January 31, 2023, including the date of each such step, the identity of the person who performed or supervised it, and any documentation created in connection therewith.
E. Interrogatory 5: Financial Data
Interrogatory No. 7: State the total revenue and gross profit earned by Harlow from the sale of ShieldCoat Pro 900 from the date of initial commercialization through the present date, broken down by calendar quarter. For each quarter, identify the total volume sold (in pounds), the total revenue, the cost of goods sold, and the gross profit.
Interrogatory No. 8: Identify Harlow's total consolidated revenue for fiscal years 2022 and 2023.
These financial interrogatories will provide the baseline data needed for Meridian Forensic Consulting Group's damages analysis and will supplement the financial documents requested in Category 5 of the document requests.
V. REQUESTS FOR ADMISSION
The following requests for admission will be served on Harlow Chemical Supply Inc. pursuant to Fed. R. Civ. P. 36. These requests are designed to narrow the issues in dispute and to establish foundational facts that, if admitted, will streamline the presentation of evidence at the preliminary injunction hearing and at trial. If denied, the denials will expose specific factual disputes that we can target in depositions and document review.
A. Key Admissions Sought
Request for Admission No. 1: Admit that CPS-BC-1147 is a barrier coating product comprising 14 distinct chemical constituents.
Request for Admission No. 2: Admit that under the Toll Manufacturing Agreement dated March 15, 2017, Harlow received disclosure of only 9 of the 14 constituents of CPS-BC-1147, with the remaining 5 constituents supplied to Harlow by CPS in the form of a pre-blended concentrate known as CPS Concentrate A.
Request for Admission No. 3: Admit that CPS Concentrate A was sent by Harlow, or at the direction of a Harlow employee, to Archer Material Sciences Inc. (located at 9300 Harding Street, Indianapolis, IN 46221) for compositional analysis in or about September 2022.
Request for Admission No. 4: Admit that Kenneth Fielding directed or authorized the submission of CPS Concentrate A to Archer Material Sciences Inc. for compositional analysis.
Request for Admission No. 5: Admit that Amanda Trent, in her capacity as Sales Director of Harlow Chemical Supply Inc., contacted Mapleridge Paper Corp. regarding ShieldCoat Pro 900 on or about June 2023.
Request for Admission No. 6: Admit that Harlow offered ShieldCoat Pro 900 to one or more customers at a price that was approximately 15% below CPS's pricing for CPS-BC-1147.
Request for Admission No. 7: Admit that Harlow did not return to CPS, or certify the destruction of, all CPS confidential information (as defined in Section 7 of the TMA) within 30 days of the TMA termination date of January 31, 2023.
Request for Admission No. 8: Admit that the Toll Manufacturing Agreement dated March 15, 2017 contains a provision (Section 8.2) prohibiting Harlow from reverse-engineering, analyzing, decompiling, or otherwise determining the composition of any CPS proprietary material, including CPS Concentrate A.
Request for Admission No. 9: Admit that the Toll Manufacturing Agreement dated March 15, 2017 contains a provision (Section 9.1) prohibiting Harlow from manufacturing or selling any barrier coating product "substantially similar" to CPS-BC-1147 for a period of three years following termination of the TMA.
Request for Admission No. 10: Admit that the Toll Manufacturing Agreement dated March 15, 2017 contains a provision (Section 9.3) prohibiting Harlow from soliciting any customer of CPS for any barrier coating product for a period of three years following termination of the TMA.
We expect that Harlow will deny Requests Nos. 3, 4, and 6, and possibly No. 7. These denials will define the key factual disputes for deposition examination and trial. Admissions on Requests Nos. 1, 2, 8, 9, and 10 should be relatively straightforward, as they relate to the terms of the TMA and the composition of CPS-BC-1147 — matters that are documented and not subject to reasonable dispute.
VI. CPS'S ANTICIPATED DOCUMENT PRODUCTION
A. Scope of CPS Production
CPS anticipates producing approximately 18,000 documents to defendants in the course of this litigation. The production will cover the following major categories:
CPS-BC-1147 Formulation Development Records (January 2015–December 2016). These records document the 24-month research and development program that culminated in the creation of CPS-BC-1147, including laboratory notebooks maintained by Dr. Margaret Yuen and her R&D team, pilot-line testing records, formulation iteration logs, raw material testing results, FDA compliance testing records, and internal project reports. These records also document CPS's $3.8 million R&D investment in the formulation. While these records contain highly sensitive trade secret information — including the complete 14-constituent formulation and the proprietary ratios, order-of-addition protocol, and processing parameters — they are necessary to establish the existence of a protectable trade secret and the reasonable measures taken to maintain its secrecy. These documents will be designated "Attorneys' Eyes Only" under the protective order discussed in Section XIV.
TMA Execution and Performance Records (March 15, 2017–January 31, 2023). CPS will produce the fully executed TMA, all amendments, all correspondence between CPS and Harlow relating to the tolling relationship, invoices, shipping records, and quality assurance records. Critically, this category includes the Partial Formulation Disclosure provided to Harlow at the inception of the tolling relationship — the document disclosing 9 of the 14 constituents of CPS-BC-1147 and their general proportional ranges, while withholding the identities and proportions of the 5 constituents contained in CPS Concentrate A.
CPS Concentrate A Production, Shipping, and Chain-of-Custody Records. These records document CPS's production of CPS Concentrate A at its own facility, the shipment of CPS Concentrate A to Harlow's toll manufacturing facility in Terre Haute, Indiana, and the chain of custody from CPS's loading dock through receipt at Harlow's facility. These records will be important for establishing the quantity of CPS Concentrate A that was in Harlow's possession during the tolling period and for corroborating the diversion of CPS Concentrate A to Archer Material Sciences.
Internal Investigation Files. CPS will produce, to the extent not protected by privilege or work product, the non-privileged portions of its internal investigation files, including the IT forensic findings identifying the September 2022 shipment of CPS Concentrate A to Archer Material Sciences Inc. Privileged portions of the investigation file, including legal analyses and strategy memoranda, will be withheld and logged on the privilege log.
Customer Communications and Records Evidencing Harlow's Solicitation. This category includes Brian Novotny's communications with Mapleridge Paper Corp. relating to Novotny's June 12, 2023 receipt of information regarding Amanda Trent's solicitation, as well as subsequent communications and confirmations from Pinnacle Flexible Films LLC, Orion Paperboard Inc., Great River Packaging Co., and TerraFold Industries LLC. These records document the timeline and scope of Harlow's customer solicitation campaign as it was discovered by CPS.
Financial Records. CPS will produce financial records relating to CPS-BC-1147 revenue and profitability, including sales data, pricing information, and customer-specific revenue data. For fiscal year 2023, CPS-BC-1147 generated $47.23 million in revenue, representing approximately 22% of CPS's total revenue of $214.7 million. These records are necessary to support CPS's damages claims, including lost profits and price erosion, and will be provided to Meridian Forensic Consulting Group for use in the damages analysis.
B. Privilege and Work-Product Review
Calderwood & Harkness will coordinate the privilege review of CPS's document production. The review will be conducted by the litigation team, supplemented as needed by contract reviewers who will be briefed on the applicable privilege and work-product standards. A detailed privilege log will be prepared in compliance with Fed. R. Civ. P. 26(b)(5)(A), identifying each withheld document by date, author, recipient, subject matter, and the specific privilege asserted.
In addition, we will propose to defendants' counsel a clawback agreement under Fed. R. Evid. 502(d), to be entered as a court order. The clawback agreement will provide that the inadvertent production of privileged or work-product documents does not constitute a waiver of the applicable privilege or protection, and that any such documents shall be promptly returned upon notice. Given the volume of documents to be produced by both sides (approximately 60,000 documents in the aggregate), a 502(d) order is prudent risk mitigation and is routinely entered in cases of this nature.
VII. EXPERT DISCOVERY COORDINATION
A. Thornburg Analytics LLC (Forensic Chemical Analysis)
Firm and Principal: Thornburg Analytics LLC, 7225 Research Park Drive, Cincinnati, OH 45237. Principal analyst: Dr. Elena Vasquez, Ph.D. (Analytical Chemistry, University of Michigan). Dr. Vasquez has over 18 years of experience in forensic chemical analysis and has served as an expert witness in trade secret litigation on multiple occasions.
Preliminary Report: Dr. Vasquez prepared a preliminary analytical report dated December 22, 2023, based on her laboratory's analysis of commercially obtained samples of ShieldCoat Pro 900 and CPS-provided samples of CPS-BC-1147. The preliminary report concluded that ShieldCoat Pro 900 matches CPS-BC-1147 in all 14 chemical constituents within ±0.3% by weight. Dr. Vasquez characterized this result as "not achievable through independent development" and "consistent only with access to the complete formulation," noting that the probability of independently arriving at the same 14-constituent combination in the same proportional ratios is, from a practical standpoint, negligible given the vast number of potential formulation variables.
Formal Expert Report: Dr. Vasquez will prepare a formal expert report for use in this litigation, in compliance with Fed. R. Civ. P. 26(a)(2)(B). The formal report will expand on the preliminary analysis, incorporate any additional data obtained through discovery (including any Harlow development records and Archer Material Sciences analytical reports), and address the technical implausibility of the independent-development defense in greater detail. We should coordinate with Thornburg to provide the following documents to Dr. Vasquez as they are obtained in discovery:
• Any Archer Material Sciences reports or analytical data relating to the analysis of CPS Concentrate A or any CPS material.
• Harlow's ShieldCoat Pro 900 development records, including laboratory notebooks, formulation worksheets, and raw material specifications.
• Harlow's quality assurance/quality control records for ShieldCoat Pro 900.
• Any additional samples of ShieldCoat Pro 900 obtained through discovery or preserved under the TRO.
Budget: Thornburg Analytics' fees to date are budgeted at approximately $185,000, which includes the preliminary analysis, ongoing consultation, and preparation of the formal expert report. Additional fees may be incurred for deposition preparation, trial testimony, and any supplemental analysis necessitated by discovery.
B. Meridian Forensic Consulting Group LLC (Damages)
Firm and Principal: Meridian Forensic Consulting Group LLC, 155 North Wacker Drive, Suite 1010, Chicago, IL 60606. Principal consultant: Jeffrey Callahan, CPA/ABV, CFF. Callahan has extensive experience in forensic accounting and damages quantification in trade secret and intellectual property litigation.
Damages Framework: Callahan has developed a preliminary damages framework based on the information currently available. The framework identifies three categories of damages:
(a) CPS Lost Profits from Diverted Sales: Estimated at $5.1 million to $7.2 million. This figure represents the profits CPS would have earned from sales that were diverted to Harlow as a result of ShieldCoat Pro 900's entry into the market and Trent's solicitation of CPS customers. The range reflects uncertainty regarding the volume of diverted sales, which will be refined as Harlow's sales data is obtained in discovery.
(b) Harlow Unjust Enrichment/Disgorgement: Estimated at $2.3 million. This figure represents the profits earned by Harlow from sales of ShieldCoat Pro 900 that are attributable to the misappropriated trade secrets. The calculation is based on Harlow's estimated revenue from ShieldCoat Pro 900 sales, less an allocation for costs not attributable to the trade secret.
(c) Price Erosion: Estimated at $1.5 million to $3.1 million. This figure represents the damage to CPS resulting from Harlow's aggressive below-market pricing for ShieldCoat Pro 900 (approximately 15% below CPS's pricing), which has forced CPS to reduce its own pricing to retain customers and has depressed market pricing for barrier coating products generally.
Total Estimated Damages Range: $8.9 million to $12.6 million, before application of any exemplary damages multiplier.
Key Documents Required: The following documents, to be obtained from Harlow through discovery, are essential for Callahan's analysis and should be provided to Meridian promptly upon receipt:
• ShieldCoat Pro 900 sales records (customer, volume, price, date).
• Harlow's financial statements for fiscal years 2021, 2022, and 2023.
• Harlow's cost of goods sold and profitability data for ShieldCoat Pro 900.
• Customer pricing records for ShieldCoat Pro 900.
• CPS internal records of lost sales and customer attrition attributable to ShieldCoat Pro 900 competition.
Expert Report Timeline: The formal damages report is anticipated by June 2024, subject to the timing of Harlow's document production.
Budget: Meridian Forensic Consulting Group's fees are budgeted at approximately $127,500, which includes the preliminary damages analysis, preparation of the formal expert report, and deposition preparation. Additional fees may be incurred for trial testimony and any supplemental analysis.
VIII. DEPOSITION PLAN — OVERVIEW