PRIVILEGED AND CONFIDENTIAL — ATTORNEY WORK PRODUCT
MEMORANDUM
TO: Douglas Carmichael, Partner, Calderwood & Harkness LLP
FROM: Yuki Nakamura, Senior Associate, Calderwood & Harkness LLP
DATE: November 10, 2022
RE: Deposition Preparation — Lena Torvik, SVP Supply Chain & Procurement, Cascade Retail Holdings Inc.
MATTER: Vantor Holdings Corp. v. Cascade Retail Holdings Inc., Case No. 21STCV-34872, Superior Court of California, County of Los Angeles
C&H MATTER NO.: 1038-00007
DEPOSITION DATE: November 18, 2022
DEPOSITION LOCATION: Offices of Kessler, Brandt & Whitfield LLP, 1999 Avenue of the Stars, Suite 2800, Los Angeles, CA 90067 (to be confirmed)
EXAMINING COUNSEL: Martin Kessler, Senior Partner, and/or Jason Okafor, Senior Associate, Kessler, Brandt & Whitfield LLP (counsel for Vantor Holdings Corp.)
DEFENDING COUNSEL: Douglas Carmichael, Partner, and Yuki Nakamura, Senior Associate, Calderwood & Harkness LLP
I. PURPOSE OF THIS MEMORANDUM
This memorandum has been prepared to assist in the preparation of Lena Torvik for her deposition, currently scheduled for November 18, 2022. Ms. Torvik serves as Senior Vice President, Supply Chain & Procurement, at Cascade Retail Holdings Inc. ("Cascade") and was the executive sponsor of Project Atlas, the strategic supplier diversification initiative that stands at the center of Vantor Holdings Corp.'s ("Vantor") claims in the above-captioned action.
Ms. Torvik is one of Cascade's primary fact witnesses. She is the most senior Cascade executive with direct involvement in the supplier selection process that led to the execution of new supply agreements with Hemsworth Consumer Products LLC ("Hemsworth"), Tridale Manufacturing Inc. ("Tridale"), and Orion Lifestyle Brands Corp. ("Orion"). Her testimony will bear directly on several critical disputed issues, including Cascade's knowledge of Vantor's existing supplier relationships, the business rationale for Project Atlas, the process by which the three suppliers were identified and selected, and the scope of executive oversight exercised over the initiative.
This memorandum supplements the prior deposition preparation memorandum prepared for Annika Bergström, VP Strategic Sourcing, whose deposition was taken on October 12, 2022. It also accounts for testimony already given by Thomas Brennecke, Vantor's VP Supplier Relations, whose deposition was taken on October 26, 2022. The analysis and recommendations contained herein have been updated to reflect both the substance of those prior depositions and any documents produced or developments occurring since those depositions were completed.
This memorandum, and all communications regarding its contents, are protected by the attorney-client privilege and the work product doctrine. This document reflects the mental impressions, conclusions, opinions, and legal theories of counsel and has been prepared in anticipation of litigation. It should not be disclosed to any person outside the attorney-client relationship without prior authorization from Douglas Carmichael.
II. WITNESS BACKGROUND AND ROLE
A. Professional Background
Lena Torvik currently holds the position of Senior Vice President, Supply Chain & Procurement, at Cascade Retail Holdings Inc. Her office is located at Cascade's corporate headquarters at 2200 Elliott Avenue West, Suite 1400, Seattle, Washington 98119.
Ms. Torvik reports directly to Margaret Prumvane, Chief Executive Officer and President of Cascade. In her capacity as SVP Supply Chain & Procurement, Ms. Torvik oversees all supply chain operations and procurement activities across Cascade's more than 340 retail locations in 22 states, as well as the company's e-commerce platform. Her responsibilities encompass supplier identification and onboarding, vendor management, logistics coordination, inventory planning, and strategic procurement initiatives.
Ms. Torvik's tenure at Cascade is to be confirmed during the preparation session. Counsel should verify the precise start date from Cascade's employment records prior to the first preparation session on November 14, 2022, as examining counsel may explore her professional history and institutional knowledge as background to her role in Project Atlas.
B. Relevance to the Case
Ms. Torvik's relevance to the claims and defenses in this litigation is substantial and multifaceted. The following points summarize the key areas of her involvement:
First, Ms. Torvik exercised direct supervisory authority over Annika Bergström, VP Strategic Sourcing, who led the day-to-day execution of Project Atlas. Ms. Bergström reported to Ms. Torvik on the progress of the initiative, including the identification and evaluation of prospective suppliers, the negotiation of new supply agreements, and the onboarding of the three suppliers at issue in this case.
Second, Ms. Torvik approved the $4.2 million budget allocation for Project Atlas supplier transition costs. This budget approval decision will be scrutinized by Vantor's counsel as part of an effort to establish that Project Atlas was a deliberate, well-resourced effort to capture competitors' suppliers.
Third, Ms. Torvik participated in the decision-making process for selecting Hemsworth, Tridale, and Orion as new suppliers for Cascade. While the day-to-day evaluation was conducted by Ms. Bergström and her team, Ms. Torvik's involvement in the final selection decisions places her at the center of the factual inquiry regarding Cascade's knowledge and intent.
Fourth, Ms. Torvik was a recipient and sender of certain of the 14 internal Project Atlas emails that reference Vantor's existing supplier relationships. These 14 emails, drawn from the 2,847 total Project Atlas emails reviewed in discovery, are among the most contested documents in this case and will almost certainly form the basis of sustained questioning by Vantor's counsel.
Fifth, Ms. Torvik was named as a custodian in the litigation hold memorandum issued by David Pruitt, General Counsel, on December 10, 2021. Documents collected from her custodial files were among those reviewed and produced in discovery.
III. SUMMARY OF CLAIMS AND DEFENSE THEORIES
A. Vantor's Claims
Vantor Holdings Corp. is a privately held California corporation headquartered at 18500 Von Karman Avenue, Suite 600, Irvine, California 92612. Vantor reported approximately $1.1 billion in annual revenue for fiscal year 2021. Vantor operates as a wholesale distributor and specialty retailer, maintaining approximately 85 retail locations in California, Arizona, Nevada, and Oregon.
Vantor filed its complaint in the Superior Court of California, County of Los Angeles, on September 7, 2021, asserting the following three causes of action:
First Cause of Action — Tortious Interference with Contractual Relations. Vantor alleges that Cascade knowingly induced Hemsworth, Tridale, and Orion to breach their respective exclusive supply agreements with Vantor. Vantor contends that Cascade was aware of the exclusive nature of these supply relationships and deliberately targeted these suppliers with the intent to disrupt Vantor's existing contractual arrangements. Vantor asserts that Cascade's actions caused the suppliers to breach their exclusivity obligations, resulting in the loss of supply relationships that were critical to Vantor's business operations.
Second Cause of Action — Tortious Interference with Prospective Economic Advantage. Vantor further alleges that, apart from the existing contractual relationships, it had a reasonable expectation of renewed and expanded supply relationships with Hemsworth, Tridale, and Orion beyond the initial contract terms. Vantor contends that Cascade's conduct disrupted these prospective economic relationships by offering the suppliers terms that were deliberately designed to induce the suppliers to abandon their business relationships with Vantor on a permanent basis.
Third Cause of Action — Unfair Business Practices under Cal. Bus. & Prof. Code § 17200. Vantor alleges that Cascade's supplier-poaching campaign constitutes an unfair and/or unlawful business practice within the meaning of California's Unfair Competition Law. Vantor characterizes Cascade's conduct as a systematic effort to undermine a competitor by targeting its exclusive supplier base with predatory commercial terms.
Vantor's total claimed damages amount to $87.4 million, broken down as follows:
B. Cascade's Key Defenses (Relevant to Torvik Testimony)
Cascade's defense strategy, as it relates to the testimony of Ms. Torvik, rests on several interrelated themes. Counsel should ensure that Ms. Torvik's testimony consistently supports and reinforces these defensive positions.
1. Lack of Actual Knowledge of Exclusivity Provisions. Cascade's primary defense is that it did not have actual knowledge of the specific exclusivity provisions contained in Vantor's supply agreements with Hemsworth, Tridale, and Orion at the time Cascade's new supply agreements were executed. While Cascade may have been generally aware that these suppliers maintained commercial relationships with other market participants, including Vantor, general awareness of a business relationship is legally and factually distinct from specific knowledge of the terms of an exclusive supply agreement. This distinction is the single most important point for Ms. Torvik's testimony.
2. Independent Supplier Decision-Making. The three suppliers independently chose to enter into supply agreements with Cascade. Cascade did not induce, coerce, or employ any improper means to cause the suppliers to abandon their relationships with Vantor. The suppliers were sophisticated commercial entities, represented by their own legal counsel, and made their own business judgments about the desirability of expanding their customer base by contracting with Cascade.
3. Termination-for-Convenience Clauses. Each of Vantor's exclusive supply agreements contained a termination-for-convenience clause that permitted the suppliers to terminate their agreements with Vantor upon providing written notice of the specified duration. The notice periods were as follows: Hemsworth, 90 days; Tridale, 60 days; and Orion, 120 days. The suppliers exercised these termination rights prior to entering into their agreements with Cascade. The existence of these clauses is significant because it means that the suppliers' agreements with Vantor were, by their own terms, terminable at will, which substantially undermines the "breach" element of Vantor's tortious interference with contractual relations claim.
4. Failure to Mitigate Damages. Vantor failed to mitigate its alleged damages by taking reasonable steps to identify and engage alternative suppliers following the termination of the supply agreements with Hemsworth, Tridale, and Orion. This defense bears on the damages calculation and may reduce or eliminate Vantor's recoverable damages even if liability were established.
5. Section 17200 Claim Is Preempted/Duplicative. Vantor's unfair business practices claim under California Business and Professions Code section 17200 is preempted by and duplicative of its tort claims and does not state an independent basis for relief.
IV. KEY DOCUMENTS FOR PREPARATION
This section identifies the categories of documents that should be reviewed with Ms. Torvik during the preparation sessions. The objective is to ensure that Ms. Torvik is familiar with the documents she is most likely to be confronted with during the deposition and that she understands the significance of each document within the broader context of the litigation.
A. Project Atlas Documents
Project Atlas was formally launched in February 2021 as a strategic initiative to identify and onboard 25 new suppliers across three product categories: home goods, consumer electronics accessories, and personal care products. The initiative was designed to diversify and strengthen Cascade's supplier network in response to ongoing supply chain disruptions and the company's strategic need to reduce concentration risk among its existing supplier base.
The day-to-day execution of Project Atlas was led by Annika Bergström, VP Strategic Sourcing, who reported directly to Ms. Torvik on the initiative's progress. The total budget allocated for supplier transition costs was $4.2 million, which covered onboarding, logistics integration, quality assurance protocols, and initial inventory build across all 25 targeted supplier relationships.
In the course of discovery, a total of 2,847 internal emails among the Project Atlas team referencing potential new suppliers were reviewed. Of these, 14 emails specifically reference Vantor's existing supplier relationships. These 14 emails are critical documents in this litigation. Vantor's counsel will almost certainly use some or all of them in their examination of Ms. Torvik. Ms. Torvik should be prepared to address each email she authored, received, or was copied on.
Counsel should review with Ms. Torvik each of the 14 emails that were flagged in Carlos Espinoza's internal memorandum dated June 30, 2022. Mr. Espinoza's memorandum analyzed these emails in detail and concluded that none of the 14 emails demonstrates actual knowledge of the specific exclusivity terms contained in the Vantor supply agreements. While several emails reference Vantor as a market participant and note that certain suppliers had existing relationships with Vantor, the references are consistent with general industry awareness rather than specific contractual knowledge. Ms. Torvik must understand this distinction thoroughly before the deposition.
B. Supplier Agreements (Vantor Side)
The three exclusive supply agreements between Vantor and its suppliers are central to Vantor's claims. Ms. Torvik should be familiar with the basic terms of these agreements, though she should be careful to note that her familiarity derives from this litigation rather than from contemporaneous knowledge:
Hemsworth–Vantor Exclusive Supply Agreement. This agreement was executed on March 15, 2019, for a three-year term expiring March 14, 2022. The agreement contained a minimum annual purchase commitment of $12.5 million and a termination-for-convenience clause requiring 90 days' written notice.
Tridale–Vantor Exclusive Supply Agreement. This agreement was executed on January 10, 2020, for a two-year term expiring January 9, 2022. The agreement contained a minimum annual purchase commitment of $8.3 million and a termination-for-convenience clause requiring 60 days' written notice.
Orion–Vantor Exclusive Supply Agreement. This agreement was executed on July 1, 2018, for a four-year term expiring June 30, 2022. The agreement contained a minimum annual purchase commitment of $14.6 million and a termination-for-convenience clause requiring 120 days' written notice.
Ms. Torvik should be prepared for questions regarding her contemporaneous knowledge of these agreements. Her testimony should consistently reflect that she did not have knowledge of the specific terms of these agreements at the time Cascade entered into its own supply agreements with the three suppliers.
C. Supplier Agreements (Cascade Side)
The supply agreements executed between Cascade and the three suppliers are as follows:
Cascade–Orion Supply Agreement. Executed on May 10, 2021, for a four-year term. The agreement provides for an annual purchase commitment of $31.0 million. The agreement was executed with Orion's Chief Executive Officer, Simone Alvarez. This was the first of the three agreements to be executed.
Cascade–Hemsworth Supply Agreement. Executed on June 1, 2021, for a five-year term. The agreement provides for an annual purchase commitment of $28.0 million. The agreement was executed with Hemsworth's Chief Executive Officer, Janet Kohler.
Cascade–Tridale Supply Agreement. Executed on August 15, 2021, for a three-year term. The agreement provides for an annual purchase commitment of $19.5 million. The agreement was executed with Tridale's President, Gregory Fontaine.
The financial terms of these agreements, particularly the annual purchase commitments, will be a focus of inquiry by Vantor's counsel. The substantial differential between Cascade's commitments and Vantor's commitments (discussed further in Section IX below) may be used by Vantor to argue that Cascade deliberately offered terms designed to lure the suppliers away from Vantor. Ms. Torvik should be prepared to explain that the commitment levels reflect Cascade's larger scale and purchasing power, and that the terms were the result of arm's-length commercial negotiation reflecting both parties' business interests.
D. Bergström Deposition Transcript (October 12, 2022)
The transcript of Annika Bergström's deposition, taken on October 12, 2022, should be reviewed with Ms. Torvik during the preparation sessions. Counsel should focus on key excerpts to ensure consistency of testimony on overlapping topics. The Bergström deposition covered the following key areas:
• The origins and strategic rationale of Project Atlas
• The 14 internal emails referencing Vantor's existing supplier relationships
• Ms. Bergström's communications with Janet Kohler (Hemsworth CEO), Gregory Fontaine (Tridale President), and Simone Alvarez (Orion CEO)
• Cascade's knowledge — or lack thereof — of the existing exclusivity provisions in Vantor's supply agreements
Counsel should identify and flag any portions of Ms. Bergström's testimony where she deferred to Ms. Torvik's superior knowledge or authority on a particular topic, as these are areas where Vantor's counsel will likely seek to elicit more detailed testimony from Ms. Torvik. If Ms. Bergström testified that she reported certain information to Ms. Torvik or sought Ms. Torvik's approval on specific decisions, Ms. Torvik's testimony should be prepared to address those same topics in a manner that is consistent with, but not contradicted by, Ms. Bergström's account.
E. Brennecke Deposition Transcript (October 26, 2022)
Thomas Brennecke, Vantor's Vice President of Supplier Relations, was deposed on October 26, 2022. Mr. Brennecke testified regarding Vantor's relationships with Hemsworth, Tridale, and Orion, and he described communications from the suppliers that allegedly indicated Cascade had approached them with the intent to capture their business.
Counsel should review Mr. Brennecke's testimony and highlight any claims he made about direct or indirect contact between Ms. Torvik and Vantor or Vantor's suppliers. If Mr. Brennecke referenced specific communications or meetings involving Ms. Torvik, those claims should be investigated and Ms. Torvik should be prepared to address them. Any inconsistencies between Mr. Brennecke's account and Ms. Torvik's recollection of events should be identified during the preparation sessions so that Ms. Torvik can provide clear, accurate testimony.
F. Documents Produced from Torvik Custodial Files
Ms. Torvik was identified as a litigation hold custodian in the memorandum issued by David Pruitt on December 10, 2021. Documents from her files were among the 452,316 total documents collected from Cascade, of which 198,740 were reviewed for relevance and privilege, and 78,412 were ultimately produced in discovery.
The following categories of documents from Ms. Torvik's custodial files should be specifically reviewed during the preparation sessions:
• Procurement committee meeting minutes reflecting discussions about prospective suppliers, including Hemsworth, Tridale, and Orion
• Supplier evaluation scorecards prepared for Hemsworth, Tridale, and Orion, documenting the assessment criteria and ratings applied to each supplier
• Internal presentations to Cascade leadership regarding the objectives, progress, and results of Project Atlas
• Any communications between Ms. Torvik and David Pruitt, General Counsel, regarding potential legal risks associated with Project Atlas or the supplier agreements (noting that such communications may be privileged)
Ms. Torvik should review these documents during the preparation sessions to refresh her recollection and to be prepared to discuss them if presented during the deposition.
G. Third-Party Productions
Third-party subpoenas were served on Hemsworth, Tridale, and Orion, yielding a total of 23,567 documents across all three productions. These third-party documents include internal communications, correspondence with Vantor, correspondence with Cascade, and internal business records relating to the suppliers' decisions to enter into agreements with Cascade.
Counsel should review the third-party productions and flag any documents that reflect direct communications between the suppliers and Ms. Torvik personally. If any such documents exist, they must be reviewed with Ms. Torvik during the preparation sessions. Documents showing the suppliers' internal decision-making processes may also be relevant, particularly if they support the defense theory that the suppliers independently chose to pursue a relationship with Cascade.
V. ANTICIPATED LINES OF QUESTIONING AND RECOMMENDED RESPONSES
This section identifies the major subject areas that Vantor's counsel is likely to explore during Ms. Torvik's deposition and provides recommended approaches for addressing each topic. The recommendations are designed to ensure that Ms. Torvik's testimony is truthful, complete, and consistent with Cascade's defense strategy while avoiding unnecessary concessions or the creation of new vulnerabilities.
A. Project Atlas — Origin, Scope, and Strategy
Anticipated Questions. Vantor's counsel will likely begin by exploring the origins and objectives of Project Atlas. Expected questions include: Why was Project Atlas launched in February 2021? What specific market conditions or strategic objectives motivated the initiative? Who proposed it? Who approved it? What was the budget? How many new suppliers were targeted? Why were these particular product categories selected?
Key Points for Ms. Torvik:
Ms. Torvik should testify that Project Atlas was a broad strategic initiative aimed at diversifying and strengthening Cascade's supplier network. The initiative was not targeted at any particular competitor or at any particular competitor's supplier relationships. Rather, it was motivated by the well-documented supply chain disruptions that affected the retail industry broadly and by Cascade's strategic need to reduce concentration risk across its supplier base.
The goal of Project Atlas was to identify and onboard 25 new suppliers across three product categories: home goods, consumer electronics accessories, and personal care products. These categories were selected based on Cascade's internal analysis of product areas where supplier concentration was highest and where diversification would yield the greatest operational and financial benefits.
The $4.2 million budget was allocated for supplier transition costs and was approved through Cascade's normal internal budgeting process. Ms. Torvik oversaw the initiative at the executive level; Annika Bergström, VP Strategic Sourcing, led the day-to-day execution and reported to Ms. Torvik on the initiative's progress.
Ms. Torvik should avoid characterizing the initiative in any way that suggests it was focused on, or directed at, Vantor's suppliers. If asked whether Cascade was aware that certain prospective suppliers had relationships with Vantor, Ms. Torvik should respond truthfully but should distinguish between general market awareness and targeted competitive intelligence. The initiative involved 25 prospective suppliers, of which only three are at issue in this litigation.
B. Budget Allocation and Financial Justification
Anticipated Questions. Vantor's counsel may probe the financial dimensions of Project Atlas to suggest that the scale of the investment reflects a deliberate strategy to capture competitors' suppliers. Expected questions include: How was the $4.2 million budget determined? What specific costs did it cover? Were supplier-specific financial models prepared for each of the 25 prospective suppliers? Was a return-on-investment analysis prepared?
Key Points for Ms. Torvik:
The $4.2 million budget covered supplier transition costs across all 25 targeted new supplier relationships, not just the three suppliers at issue in this case. Ms. Torvik should emphasize that the budget encompassed a range of activities, including onboarding procedures, logistics integration, quality assurance protocols, and initial inventory builds necessary to establish new supply relationships.
The financial justification for the budget was based on overall supply chain efficiency improvements expected from a more diversified supplier base. The analysis reflected Cascade's experience that supplier diversification reduces risk, improves pricing competitiveness through increased negotiating leverage, and enhances supply chain resilience against disruptions.
If asked to contextualize the budget, Ms. Torvik should note that Cascade's fiscal year 2021 annual revenue was $6.8 billion. In that context, a $4.2 million investment in supplier diversification across 25 new relationships was modest and proportionate — representing approximately 0.06% of annual revenue. This framing undercuts any suggestion that the investment was extraordinary or indicative of a targeted campaign.
Ms. Torvik should be prepared to answer questions about whether supplier-specific financial projections were prepared. If such projections exist, she should acknowledge them but frame them as standard business analysis conducted for any significant procurement decision.
C. Selection of Hemsworth, Tridale, and Orion
Anticipated Questions. This is a central area of inquiry. Vantor's counsel will seek to establish that Cascade specifically targeted these three suppliers because of their relationships with Vantor. Expected questions include: How were Hemsworth, Tridale, and Orion identified as prospective suppliers? What criteria were used to evaluate them? Was it known that they had existing relationships with Vantor? Who made the final selection decisions?
Key Points for Ms. Torvik:
Ms. Torvik should testify that the three suppliers were identified through Cascade's standard procurement processes, which included industry research, trade show contacts, supplier capability assessments, and the professional networks of the procurement team. The identification process was part of a broader effort to evaluate dozens of prospective suppliers, ultimately targeting 25 across the three product categories.
The selection criteria applied to all prospective suppliers were objective and commercially reasonable. They included product quality, manufacturing capacity, pricing competitiveness, geographic distribution capability, and willingness to meet Cascade's volume requirements across its 340+ retail locations and e-commerce platform. Ms. Torvik should emphasize that these criteria were applied uniformly and were not designed to target any particular competitor's suppliers.
Regarding knowledge of the suppliers' relationships with Vantor, Ms. Torvik should acknowledge that she may have been generally aware that these suppliers sold products to other retailers, which could have included Vantor, as a matter of industry common knowledge. However, she should clearly distinguish between general awareness of a commercial relationship and specific knowledge of the terms of an exclusive supply agreement. General awareness that a supplier has customers is ubiquitous in the industry; knowledge of the specific exclusivity provisions, minimum purchase commitments, and termination clauses in another company's supply agreements is an entirely different matter.
Final supplier approvals were made through Cascade's procurement committee, with Ms. Torvik's recommendation and with input from Ms. Bergström and other members of the procurement team. The process was consistent with Cascade's standard approach to all significant supplier relationships.
D. Due Diligence Regarding Existing Supplier Commitments
Anticipated Questions. Vantor's counsel will likely explore what steps, if any, Cascade took to determine whether prospective suppliers had existing exclusive commitments to other parties. Expected questions include: Did Cascade conduct any due diligence on the suppliers' existing contractual obligations? Was there a standard practice for inquiring about such commitments? Did anyone at Cascade ask the suppliers directly whether they were bound by exclusivity agreements?
Key Points for Ms. Torvik:
Ms. Torvik should explain that Cascade's standard supplier onboarding process included representations from prospective suppliers regarding their ability to fulfill Cascade's requirements. As part of the contracting process, each supplier represented its capacity and willingness to enter into the agreements with Cascade and to perform its obligations thereunder.
Ms. Torvik should testify that Cascade relied on the suppliers' own representations regarding their ability to contract and fulfill their obligations. Hemsworth, Tridale, and Orion were sophisticated commercial entities with their own legal counsel. It was their responsibility — not Cascade's — to ensure that they were free to enter into new supply arrangements and to manage or terminate any existing commitments that might conflict.
Cascade did not independently investigate whether every prospective supplier had existing exclusivity arrangements with competitors. Such an investigation would have been impractical given the scope of Project Atlas (25 prospective suppliers across three product categories) and was not part of Cascade's standard procurement practices.
If pressed on whether Cascade should have conducted more extensive due diligence, Ms. Torvik should state that Cascade dealt in good faith with the suppliers, who were represented by their own counsel and who affirmatively represented their ability to enter into the agreements. There was no reason for Cascade to doubt those representations or to conduct an independent investigation into the suppliers' contracts with third parties.
E. The 14 Project Atlas Emails Referencing Vantor
Anticipated Questions. This is the area of greatest risk. Vantor's counsel will likely walk Ms. Torvik through specific emails she sent, received, or was copied on among the 14 internal Project Atlas emails that reference Vantor's existing supplier relationships. The objective of this line of questioning will be to establish that Cascade — and Ms. Torvik specifically — had actual knowledge of the exclusivity provisions in Vantor's supply agreements.
Key Points for Ms. Torvik:
As noted in Section IV.A above, Carlos Espinoza's June 30, 2022 internal memorandum analyzed each of the 14 emails in detail and concluded that none of them demonstrates actual knowledge of the specific exclusivity terms contained in the Vantor supply agreements. Several emails reference Vantor as a market participant and note that certain suppliers had existing relationships with Vantor, but these references are consistent with general industry awareness rather than specific contractual knowledge.
Ms. Torvik should carefully and consistently distinguish between references to Vantor as a competitor or market participant and knowledge of the specific contractual exclusivity terms in Vantor's supply agreements. The fact that an email mentions Vantor in connection with a supplier does not mean that the author or recipient knew about the existence, terms, or enforceability of an exclusive supply agreement.
Awareness that a competitor has a commercial relationship with a supplier is a matter of ordinary business knowledge in the retail industry. Retailers routinely know, in general terms, which suppliers serve which competitors. That awareness does not equate to knowledge that a binding exclusivity clause prohibits the supplier from dealing with others.
During the deposition, Ms. Torvik should adhere to the following principles when questioned about these emails:
• She should answer only the question asked and should not volunteer additional information about the content, purpose, or context of any email.
• She should not speculate about the content of emails she does not specifically recall. If she does not remember a particular email, she should say so clearly and without embellishment.
• She should ask to see the document before testifying about it. Under no circumstances should she testify about the content of an email from memory alone if the document can be produced.
• If any email appears to reference "exclusivity" or "exclusive arrangements," Ms. Torvik should be prepared to explain the context and to note that the term may have been used colloquially — to refer generally to a strong or long-standing commercial relationship — rather than as a reference to specific contractual exclusivity provisions.
Counsel should conduct a thorough review of each of the 14 emails with Ms. Torvik during the preparation sessions to identify precisely which emails she authored, received, or was copied on and to develop specific responses for each.
F. Communications with Supplier Executives
Anticipated Questions. Vantor's counsel will explore whether Ms. Torvik personally communicated with the senior executives of the three suppliers: Janet Kohler (Hemsworth CEO), Gregory Fontaine (Tridale President), and Simone Alvarez (Orion CEO). Expected questions include: What was discussed? Were existing supplier commitments mentioned? Did any of the supplier executives disclose the existence of their agreements with Vantor?
Key Points for Ms. Torvik:
Ms. Torvik may have had high-level executive communications with one or more of these individuals during the contracting process. Such communications would be consistent with the normal course of business for supply agreements of this magnitude.
Ms. Torvik should testify that her conversations with supplier executives focused on Cascade's needs, the suppliers' capabilities, and general commercial terms. These discussions were typical executive-level engagements aimed at establishing a productive working relationship between the parties.
Ms. Torvik should testify that she did not discuss, and was not made aware of, the specific terms of the suppliers' agreements with Vantor during these conversations. If any of the supplier executives raised the fact that they had existing commitments to other customers, Ms. Torvik should explain that the suppliers indicated they could manage or exit those commitments on their own. The suppliers' existing business relationships were their own affair, and Ms. Torvik did not seek or obtain detailed information about the terms of those relationships.
If documents from the third-party productions suggest that Ms. Torvik had communications with these executives that touched on the Vantor relationships, counsel should review those documents with Ms. Torvik during the preparation sessions and develop specific responses.
G. Termination-for-Convenience Clauses
Anticipated Questions. Vantor's counsel may explore whether Cascade was aware that Vantor's supply agreements contained termination-for-convenience clauses and whether Cascade encouraged the suppliers to exercise those clauses. Expected questions include: Did Cascade know about the termination-for-convenience provisions? Did Cascade advise or encourage the suppliers to terminate their Vantor agreements? Did Cascade time the execution of its supply agreements to coincide with the suppliers' exercise of their termination rights?
Key Points for Ms. Torvik:
Cascade's position is that the suppliers independently exercised their termination-for-convenience rights under their respective agreements with Vantor — Hemsworth with 90 days' written notice, Tridale with 60 days' written notice, and Orion with 120 days' written notice — before entering into their supply agreements with Cascade. The suppliers' decisions to terminate their Vantor agreements were their own business decisions, made in the exercise of their own commercial judgment.
Ms. Torvik should testify that Cascade did not direct, advise, or encourage any supplier to terminate its existing agreements with Vantor or any other party. Cascade's negotiations with the suppliers concerned the terms of the new Cascade supply agreements, not the suppliers' relationships with other customers.
If Ms. Torvik had any awareness that the suppliers were transitioning away from Vantor, she should frame it as the suppliers' own business decision, communicated to Cascade in the ordinary course of the supplier onboarding process. Suppliers routinely adjust their customer portfolios as their businesses evolve, and the fact that a supplier chose to terminate one relationship and enter into another is not evidence of wrongdoing by the new customer.
The existence of termination-for-convenience clauses in the Vantor supply agreements is a critical element of Cascade's defense. These clauses meant that the supply agreements were terminable at will by the suppliers, provided the requisite notice was given. The suppliers' exercise of these clauses — which were bargained-for contractual rights — undermines the foundational "breach" element of Vantor's tortious interference with contractual relations claim. There can be no tortious interference with a contract that the performing party was entitled to terminate at its own discretion.
H. Relationship with Annika Bergström and Delegation of Authority
Anticipated Questions. Vantor's counsel will seek to establish the extent of the reporting relationship between Ms. Torvik and Ms. Bergström in order to impute to Ms. Torvik any knowledge that Ms. Bergström may have possessed. Expected questions include: What did Bergström report to you about her conversations with the three suppliers? Did Bergström ever inform you about Vantor's exclusivity clauses? How frequently did you and Bergström discuss Project Atlas? What level of detail did Bergström provide in her reports?
Key Points for Ms. Torvik:
Ms. Bergström reported to Ms. Torvik on the general progress of Project Atlas, including updates on supplier identification, evaluation, and onboarding activities. Ms. Torvik's oversight was at the executive level, consistent with her role as SVP overseeing a large organization with multiple ongoing initiatives.
Ms. Torvik's testimony must be consistent with Ms. Bergström's October 12, 2022 deposition testimony. If Ms. Bergström did not testify that she informed Ms. Torvik about the exclusivity clauses in the Vantor agreements, Ms. Torvik should not volunteer such information. If Ms. Bergström testified that she escalated certain issues to Ms. Torvik, Ms. Torvik should be prepared to address those issues consistently.
Where their knowledge differs — for example, where Ms. Bergström had operational-level detail about specific supplier conversations that Ms. Torvik would not have had — that difference should be natural and attributable to their different roles within the organization. Ms. Torvik exercised executive oversight; Ms. Bergström handled the day-to-day execution. It would be entirely normal for Ms. Torvik to lack detailed knowledge of every conversation that Ms. Bergström conducted with supplier representatives.
If asked about specific matters that were within Ms. Bergström's operational responsibility, Ms. Torvik should indicate that Ms. Bergström handled the day-to-day execution and that Ms. Torvik relied on Ms. Bergström's reporting.
I. Involvement of David Pruitt / Legal Review
Anticipated Questions. Vantor's counsel will likely explore whether Ms. Torvik consulted with Cascade's General Counsel, David Pruitt, about Project Atlas or the supplier agreements. This line of questioning is designed to establish either that Cascade sought legal advice regarding the risk of tortious interference (suggesting awareness of the risk) or that Cascade failed to seek such advice (suggesting recklessness). Either way, the substance of any legal communications must be protected.
Key Points for Ms. Torvik:
Any communications between Ms. Torvik and David Pruitt, in his capacity as Cascade's General Counsel, that were made for the purpose of seeking or providing legal advice are protected by the attorney-client privilege. Defending counsel should be prepared to instruct Ms. Torvik not to disclose the substance of such communications if questions invade the privilege.
Ms. Torvik may acknowledge that Cascade's legal department was involved in reviewing and negotiating the supplier agreements as part of Cascade's standard contracting process. It is a matter of common knowledge in the business world that legal departments participate in the review of significant commercial agreements. This acknowledgment does not waive any privilege.
Ms. Torvik should not disclose the content of any legal advice she received from Mr. Pruitt or from any other attorney, whether in-house or outside counsel. She should not characterize the nature or scope of the legal advice, describe the questions she asked of counsel, or summarize counsel's conclusions or recommendations.
If uncertain whether a particular topic or communication is privileged, Ms. Torvik should pause and allow defending counsel to intervene. Douglas Carmichael or Yuki Nakamura will assert the privilege as appropriate and provide instructions to the witness.
J. Knowledge of Vantor Generally
Anticipated Questions. Vantor's counsel may explore Ms. Torvik's general knowledge of Vantor Holdings Corp. to establish that Cascade viewed Vantor as a competitor and that Project Atlas was designed, at least in part, to weaken Vantor's competitive position. Expected questions include: What did you know about Vantor? Did Cascade consider Vantor a competitor? Was Project Atlas designed to gain market share at Vantor's expense?
Key Points for Ms. Torvik:
Ms. Torvik may acknowledge a general awareness of Vantor as a participant in the retail and wholesale distribution market. Vantor operates approximately 85 retail locations in California, Arizona, Nevada, and Oregon, and it functions primarily as a wholesale distributor and specialty retailer.
Cascade, by contrast, is a multi-channel retailer and e-commerce company with more than 340 locations across 22 states. The two companies operate in different market segments, serve different customer bases, and have fundamentally different business models. Ms. Torvik should testify that Cascade does not consider Vantor a direct competitor.
Project Atlas was designed to benefit Cascade's supply chain through diversification and risk reduction. It was not designed to harm Vantor or any other market participant. Ms. Torvik should avoid any language suggesting that the initiative was designed to target, weaken, or disadvantage Vantor. Any characterization of Project Atlas as a competitive initiative should be directed toward the positive objectives of strengthening Cascade's own operations, not at undermining any competitor.
VI. KEY DEPOSITION PREPARATION RULES AND REMINDERS
A. General Deposition Conduct
The following rules should be reviewed with Ms. Torvik during each preparation session and reinforced on the day before the deposition:
1. Listen carefully to each question. Ms. Torvik should listen to the entire question before beginning to answer. She should not anticipate where a question is going or begin formulating a response before the question is complete.
2. Answer only the question asked. Ms. Torvik should provide a responsive answer to the specific question posed and should not volunteer additional information, context, or explanation beyond what is necessary to answer the question truthfully and completely.
3. Do not guess or speculate. If Ms. Torvik does not remember a fact, she should say "I don't recall" or "I don't remember." She should not guess, estimate, or speculate in order to provide an answer. An honest acknowledgment of a lack of recollection is always preferable to an inaccurate or speculative response.
4. Ask for clarification. If Ms. Torvik does not understand a question, she should ask examining counsel to rephrase or clarify the question before attempting to answer. She should not interpret an ambiguous question in a way that may lead to a misleading response.
5. Review documents carefully. If examining counsel presents a document and asks questions about it, Ms. Torvik should take the time to read the document — or the relevant portions of it — carefully before answering. She should not answer questions about a document based on examining counsel's characterization of the document without verifying that characterization.
6. Remain calm and professional. Ms. Torvik should not argue with examining counsel, become visibly frustrated, or engage in adversarial exchanges. Her demeanor should be professional, composed, and cooperative throughout the deposition.
7. Take breaks as needed. Ms. Torvik may request a break at any time, and she should consult with defending counsel during breaks as needed. However, she should not request a break while a question is pending, as this may create an adverse inference that she is seeking coaching from counsel.
B. Privilege Protections
Ms. Torvik should not disclose the substance of any communications with David Pruitt, Cascade's General Counsel, or with attorneys at Calderwood & Harkness LLP, where those communications were made for the purpose of seeking or providing legal advice. The attorney-client privilege protects both the content of such communications and the fact that legal advice was sought on a particular topic.
Douglas Carmichael or Yuki Nakamura will assert the privilege as appropriate during the deposition and will instruct Ms. Torvik not to answer if a question invades privileged communications. Ms. Torvik should follow counsel's instructions promptly and without elaboration.
If Ms. Torvik is unsure whether a particular topic or communication is privileged, she should pause and allow defending counsel to assess the question before responding. A brief pause is far preferable to an inadvertent waiver of the privilege.
C. Consistency with Other Testimony
Ms. Torvik's testimony must be consistent with the deposition testimony previously given by Annika Bergström on October 12, 2022, to the extent that they share overlapping knowledge of the same facts and events. Inconsistencies between the testimony of these two witnesses would be exploited by Vantor's counsel to undermine the credibility of both witnesses and to suggest that Cascade's account of Project Atlas is not reliable.
Where their knowledge may differ — for example, where Ms. Bergström has operational-level detail that Ms. Torvik would not have, or where Ms. Torvik has executive-level strategic context that Ms. Bergström may not have been privy to — those differences should be natural and attributable to their different roles within the organization. Such differences do not constitute inconsistencies and should not be treated as problematic.
If asked about matters that Ms. Torvik delegated to Ms. Bergström, she should indicate that Ms. Bergström handled the day-to-day execution and that Ms. Torvik relied on Ms. Bergström's reporting. Ms. Torvik should not attempt to testify to operational details that were outside her direct involvement.
D. Treatment of Documents
Vantor's counsel will present documents during the deposition, potentially drawing from a large universe of materials. Ms. Torvik should be prepared for documents drawn from the 78,412 documents produced by Cascade, the 23,567 documents produced by Hemsworth, Tridale, and Orion in response to third-party subpoenas, and the 41,308 documents produced by Vantor.
Ms. Torvik should not authenticate documents she has not seen before or cannot verify as genuine. If presented with a document she does not recognize, she should say so clearly. She should not accept examining counsel's characterization of a document's authenticity, authorship, or meaning without examining the document herself.
For any of the 14 critical Project Atlas emails that reference Vantor, Ms. Torvik should respond only to the specific content of the email and should not extrapolate beyond what the document says. She should not speculate about the intent, meaning, or significance of language in an email unless she has a clear recollection of the circumstances under which the email was written or received.
VII. PREPARATION SESSION SCHEDULE
Preparation sessions will be conducted at the offices of Calderwood & Harkness LLP, 600 South Grand Avenue, Suite 3200, Los Angeles, California 90071.
Session 1 — Monday, November 14, 2022: Document Review
This session will focus on a comprehensive review of the key documents that Ms. Torvik is most likely to encounter during the deposition. The document review will include:
• Key Project Atlas documents, including the initiative proposal, budget approval memoranda, and progress reports
• Each of the 14 internal Project Atlas emails that reference Vantor's existing supplier relationships, with particular focus on emails that Ms. Torvik authored, received, or was copied on
• The three Vantor exclusive supply agreements (Hemsworth, Tridale, Orion)
• The three Cascade supply agreements (Orion, Hemsworth, Tridale)
• Selected excerpts from the Bergström deposition transcript (October 12, 2022)
• Supplier evaluation scorecards and procurement committee minutes
Session 2 — Tuesday, November 15, 2022: Practice Questioning
This session will consist of a mock examination covering all anticipated topics identified in Section V of this memorandum. Yuki Nakamura or Carlos Espinoza will conduct the practice questioning, simulating the style and approach of Martin Kessler and Jason Okafor. The practice session will be designed to test Ms. Torvik's ability to adhere to the deposition conduct rules, maintain consistency with Ms. Bergström's prior testimony, and navigate the most challenging lines of questioning, including the 14 emails, the supplier selection process, and the knowledge-of-exclusivity issue.
Session 3 — Thursday, November 17, 2022 (Day Before Deposition): Final Review
This session will serve as a final review and refresher. The session will include a recap of the key deposition conduct rules, a review of any newly produced documents or developments that have occurred since Session 2, and a focused discussion of the areas where Ms. Torvik felt least comfortable during the practice questioning. This session is also intended to ensure that Ms. Torvik is well-rested, confident, and prepared for the following day.
Attendees for All Sessions:
• Lena Torvik (witness)
• Douglas Carmichael, Partner, Calderwood & Harkness LLP
• Yuki Nakamura, Senior Associate, Calderwood & Harkness LLP