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Campbell v. CGM, LLC

United States District Court, D. New Hampshire

November 29, 2016

Christopher Campbell

         Opinion No. 2016 DNH 212


          Joseph DiClerico, Jr. United States District Judge

         Christopher Campbell, brings this action against his former employer, CGM, LLC, asserting claims for breach of contract; fraud, deceit and misrepresentation; violation of the New Hampshire Consumer Protection Statute RSA Chapter 358-A; and unpaid wages. Both Campbell and CGM have filed motions for summary judgment. Campbell now moves to strike the declaration of Duane Szarek submitted by CGM in support of its objection to Campbell's motion for summary judgment. CGM objects to the motion to strike.[1]


         Christopher Campbell is an electrical engineer who founded a telecommunications company called Intellinet, Inc. In 2000, Intellinet began doing contract work for CGM, a company in Georgia in the business of telecommunications consulting that was owned by Christopher Campbell's twin brother, Charles Campbell, and Kevin Murphy. Christopher and Charles began negotiations for Christopher to work for CGM that culminated in an offer made to Christopher by CGM. At that time, another company, CCG Consulting, was considering acquiring CGM.

         Christopher signed an employment agreement in May of 2001 and began working for CGM in June. Based on the terms of the employment agreement, Christopher expected to receive annual bonuses but no bonuses were paid. CGM disputes the existence of an enforceable employment agreement and its terms.

         When Christopher inquired about bonuses, he was told that CGM had no earnings so that no bonuses could be paid. A few years later, CGM reduced Christopher's salary, again citing financial issues. Christopher continued to ask for more money, but his requests were denied. Beginning in 2009, CGM paid Christopher commissions on revenue from certain customers, but the amount of commissions to be paid generated issues between Christopher and CGM.

         Discussions about Christopher's role in the company and his pay structure continued until November of 2014 when Christopher experienced a breakdown. Christopher did not return to work during December of 2014 and January of 2015. CGM terminated his employment effective January 15, 2015. Christopher then brought this action against CGM.

         Christopher disclosed Paul Hendrickson, CPA, as an expert witness in this case, and provided Hendrickson's report to CGM. CGM had Hendrickson's report reviewed by Duane Szarek, CPA, who has served as CGM's accountant since 2014. CGM did not disclose Szarek, or anyone else, as an expert.

         CGM did disclose Szarek as a possible witness who might testify at trial under Federal Rule of Civil Procedure 26(a)(1). As part of that disclosure, CGM stated that Szarek had knowledge of the circumstances when Christopher Campbell was hired at CGM in 2001, about CGM's income in 2002 through 2004, and about CGM's profits since then and its revenue and earnings. CGM also represented that Szarek could testify that CGM did not manipulate its revenue or earnings or divert funds to CGM's owners, that he could give his opinion about the veracity of CGM's “current and historic financial data and condition, ” and about the “accuracy and veracity” of CGM's books, records, financial data, and reporting. When Szarek was deposed, however, he explained that he was hired by CGM in the middle of 2014, that he had no knowledge about Christopher Campbell's contribution to the company in 2001, did not know whether CGM had generated significant profits, and did not know whether CGM's owners had misrepresented, manipulated, or diverted the company's revenue and earnings. Szarek also denied knowledge of CGM's past data and financial circumstances.

         Standard of Review

         “[A] party must disclose to the other parties the identity of any witness it may use at trial to present evidence under Federal Rule of Evidence 702, 703, or 705.” Fed.R.Civ.P. 26(a)(2)(A). In addition, “this disclosure must be accompanied by a written report-prepared and signed by the witness-if the witness is one retained or specially employed to provide expert testimony in the case or one whose duties as the party's employee regularly involve giving expert testimony.” Fed.R.Civ.P. 26(a)(2)(B). “If a party fails to provide information or identify a witness as required by Rule 26(a) or (e), the party is not allowed to use that information or witness to supply evidence on a motion, at a hearing, or at trial, unless the failure was substantially justified or is harmless.” Fed.R.Civ.P. 37(c)(1). The court may order other sanctions instead of or in addition to excluding the evidence. Id.


         Christopher Campbell moved for partial summary judgment on his breach of contract claim and CGM's counterclaims for breach of contract, conversion, violation of the Computer Fraud and Abuse Act, tortious interference, punitive damages, and an injunction. In support of its objection to Campbell's motion for summary judgment, CGM submitted Szarek's declaration with his curriculum vitae and three attached ...

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