Officemax Inc. v. Sousa (773 F. Supp. 2d 190, 2011)

ORDER ON MOTIONS FOR SUMMARY JUDGMENT, TO STRIKE, FOR SANCTIONS, AND TO SUPPLEMENT

JOHN A. WOODCOCK, JR., Chief Judge.

In this civil action, OfficeMax filed suit against its former employees — now working for its competitor W.B. Mason — to prevent them from violating the terms of their non-competition agreements and to prevent them from revealing confidential OfficeMax trade information. The Defendants, Denis Sousa, George Johnson, and John Steele, have fought back, not merely denying OfficeMax’s legal claims but counterclaiming against OfficeMax, seeking a declaratory judgment and alleging that OfficeMax committed torts against them and violated state of Maine statutory law. What began as a skirmish devolved into a major dispositive motion battle with multiple charges and counterattacks. In this exhaustive order, the Court picks its way through the volleys, declares some minor victories, but for the most part orders the adversaries back to where they began.

I. STATEMENT OF FACTS

A. Procedural History

1. Complaints, Answers, Motions to Dismiss and Counterclaims

On December 18, 2009, OfficeMax Incorporated (OfficeMax) filed suit against Denis Sousa, George Johnson and John Steele, seeking recovery for alleged violations of nondisclosure and noncompetition agreements that the Defendants signed while they were employed by OfficeMax and its predecessor, Boise Cascade Office Products (BCOP). Compl. at 1 (Docket # 1). Johnson answered on February 3, 2010. Answer, Affirmative Defenses and Jury Demand of Def. George Johnson (Docket # 9) (Johnson Answer). On February 8, 2010, Mr. Steele moved to dismiss pursuant to Rule 12(b)(6). Def. John Steele’s Mot. to Dismiss Pursuant to Rule 12(b)(6) (Docket # 11) (Steele Mot. to Dismiss). On February 11, 2010, Mr. Sousa answered. Answer, Affirmative Defenses and Jury Demand of Def. Denis Sousa (Docket # 12) (Sousa Answer). On February 24, 2010, OfficeMax moved for preliminary injunction. Mot. for Prelim. Inf (Docket # 15). On March 1, 2010, OfficeMax responded to Mr. Steele’s Motion to Dismiss. Pl’s Opp’n to the Mot. to Dismiss Filed by Def. Steele. (Docket # 20) {Opp’n to Mot. to Dismiss). On March 19, 2010, District Court Judge Hornby denied Mr. Steele’s Motion to Dismiss, stating that “[tjhere may ultimately be a basis for summary judgment, but the allegations just barely survive a motion to dismiss.” Order Den. Mot. to Dismiss (Docket # 26). On April 2, 2010, Mr. Steele answered OfficeMax’s Complaint and asserted a counterclaim, alleging breach of contract, fraud, violation of the Maine Timely and Full Payment of Wages Law, 26 M.R.S. § 621-A et seq., abuse of process, and defamation, and requesting a declaratory judgment. Answer, Affirmative Defenses, Countercl. and Jury Demand of Def. John Steele (Docket #28) {Steele Answer and Countercls.). On April 27, 2010, OfficeMax answered Mr. Steele’s counterclaims. Answer of OfficeMax Incorporated to Countercl. of John Steele (Docket # 38) {OfficeMax Answer).

On July 23, 2010, Messrs. Sousa and Johnson filed an amended answer asserting a counterclaim, alleging abuse of process and seeking a declaratory judgment. Countercl. of Def. George Johnson (Docket # 68) {Johnson Countercl.)-, Countercl. of Def. Denis Sousa (Docket # 69) {Sousa Countercl.). On August 13, 2010, OfficeMax answered Mr. Johnson’s and Mr. Sousa’s counterclaims. Answer of OfficeMax Incorporated to Countercl. of George Johnson (Docket # 87); Answer of OfficeMax Incorporated to Countercl. of Denis Sousa (Docket # 88).

2. Defendants’ Motions for Summary Judgment, to Strike, and for Sanctions

On June 18, 2010, Messrs. Johnson and Sousa moved for Summary Judgment. Mot. of Defs. Denis Sousa and George Johnson for Summ,. J. (Docket # 47) (Sousa and Johnson Summ. J. Mot). Mr. Steele followed on June 24, 2010. Def. John Steele’s Mot. for Summ. J. (Docket # 50) (Steele Summ. J. Mot.). OfficeMax responded to Mr. Steele’s summary judgment motion on July 15, 2010, and to Messrs. Johnson and Sousa’s motion on July 16, 2010, opposing summary judgment or, in the alternative, requesting additional time for discovery. PL’s Mot. for Extension of Time to Conduct Disc, and Opp’n to Summ. J. Mot. of Def. Steele (Docket #59) (Pi’s Opp’n to Steele Mot.); Pi’s Appl. Under Fed.R.Civ.P. 56(f) and Opp’n to Defs. ’ Mot. for Summ. J. (Docket # 66) (PL’s Opp’n to Johnson and Sousa Summ. J. Mot.). On July 29, 2010, Messrs. Steele, Sousa and Johnson replied to OfficeMax’s opposition. Def. Steele’s Reply in Supp. of His Mot. for Summ. J. (Docket # 76) (Steele Summ. J. Reply); Defs. Sousa and Johnson’s Reply in Supp. of Their Mot. for Summ. J. (Docket #78) (Sousa and Johnson Summ. J. Reply).

On the same day, Mr. Steele moved to strike Exhibit F from OfficeMax’s opposition. Def. Steele’s Mot. to Strike Ex. Submitted by PL in Opp’n to Steele’s Mot. for Summ. J. on the Grounds that PL Withheld This Doc. in Disc. Claiming It Was Irrelevant (Docket # 77) (Steele Mot. to Strike). OfficeMax responded to Mr. Steele’s Motion to Strike on August 23, 2010. PL’s Opp’n to Def. Steele’s Mot. to Strike Ex. Submitted by PL in Opp’n to Steele’s Mot. for Summ. J. (Docket # 93) (PL’s Opp’n to Steele Mot. to Strike). On September 7, 2010, Mr. Steele replied. Def. Steele’s Reply in Supp. of Mot. to Strike (Docket # 107) (Steele Reply to Mot. to Strike).

On December 6, 2010, the Court granted OfficeMax’s request to engage in Rule 56(d) discovery and, accordingly, OfficeMax submitted a supplemental opposition to Mr. Steele’s summary judgment motion. Order on PI. ’s Appl. for Additional Time for Disc, and Mot. to Supplement its Opp’n to Def. Steele’s Mot. for Summ. J. (Docket #218) (Disc. Order); Pl.’s Supplemental Opp’n to Summ. J. Mot. of Def. Steele (Doc. #220) (PL’s Supp. Opp’n to Steele Mot.). On December 24, 2010, Mr. Steele replied. Def. Steele’s Supplemental Reply to PL’s Supplemental Opp’n to Summ. J. Mot. of Def. Steele (Docket #228) (Steele Supp. Summ. J. Reply).

On November 29, 2010, the Defendants moved for sanctions under Rule 37. Defs. ’ Mot. for Sanctions Pursuant to F.R.C.P. 37 (Docket #211) (Defs.’ Sanctions Mot.). OfficeMax responded in opposition on December 30, 2010. PL’s Opp’n to Defs.’ Mot. for Sanctions Pursuant to F.R.C.P. 37 (Docket #231) (Pl.’s Sanctions Opp’n). The Defendants replied. Defs.’ Reply in Further Support of Defs. ’ Mot. for Sanctions Pursuant to F.R.C.P. 37 (Docket # 237).

3. Plaintiffs Motions for Summary Judgment and to Exclude

On August 13, 2010, OfficeMax moved for summary judgment on Mr. Steele’s counterclaims. PI. ’s Mot. for Summ. J. on Counterds. of Def. John Steele (Docket #122) (Pi’s Steele Summ. J. Mot.). On October 29, 2010, Mr. Steele filed an opposition and on November 17, 2010, OfficeMax replied. Opp’n of Def. John Steele to Pi’s Mot. for Summ. J. on Counterds. (Docket # 172) (Steele Summ. J. Opp’n); Pi’s Reply to Def. Steele’s Opp’n to Pi’s Mot. for Summ. J. on Counterds. (Docket # 186) (PI. ’s Steele Summ. J. Reply).

On September 13, 2010, OfficeMax moved for partial summary judgment against Messrs. Johnson and Sousa on Counts I and II of its Complaint and on Counts I and II of their counterclaims, and on October 29, 2010, it refiled a revised motion. Mot. by PL for Partial Summ. J. Against Defs. Sousa and Johnson as to Counts One and Two (Docket # 125); Mot. by PI. for Partial Summ. J. Against Defs. Sousa and Johnson as to Counts I and II of the Compl. and Counts I and II of Defs.’ Counterds. (Docket # 197) (Pi’s Sousa and Johnson Summ. J. Mot). On October 28, 2010, Messrs. Sousa and Johnson each filed an opposition and on December 6, 2010, OfficeMax filed a consolidated reply. Opp’n of Def. Denis Sousa to Pi’s Mot. for Summ. J. (Docket # 161) (Sousa Summ. J. Opp’n); Opp’n of Def. George Johnson to PI. ’s Mot. for Summ. J. (Docket # 166) (Johnson Summ. J. Opp’n); Pi’s Reply to the Opp’ns of Def. Sousa and Def. Johnson to PI. ’s Mot. for Partial Summ. J. (Docket # 200) (PI. ’s Sousa and Johnson Summ. J. Reply).

On December 24, 2010, OfficeMax moved to exclude two affidavits by Edmund Gagne and their attached exhibits, which Messrs. Sousa and Johnson had submitted in support of their opposition to OfficeMax’s motion for partial summary judgment. PI. ’s Mot. to Exdude Defs. ’ Ex. A (Docket Nos. 16k, 16k-l, and 16k-2) and Rider Ded. Ex. F (Docket No. 165-9) from the R. in Relation to PI. ’s Mot. for Partial Summ. J. Against Defs. Sousa and Johnson (Docket #208) (Pi’s Mot. to Exclude ). On November 30, 2010, Messrs. Sousa and Johnson opposed OfficeMax’s motion to exclude the Gagne declarations. Defs.’ Opp’n to OfficeMax’s Mot. to Exclude Gagne Ded. (Docket #213) (Defs.’ Opp’n to Mot. to Exclude). On December 6, 2010, OfficeMax replied. PI. ’s Reply to Defs.’ Opp’n to Pi’s Mot. to Exclude (Docket #223) (Pl.’s Reply Mot. to Exclude ).

B. George Johnson and Denis Sousa

From 1972 through October 9, 2009, Denis Sousa worked for OfficeMax, BCOP, or their predecessors. Statement of Material Facts in Supp. of the Mot. of Defs. Denis Sousa and George Johnson for Summ. J. ¶ 1 (Docket # 48) (Sousa and Johnson SMF); PI. ’s Resp. to Defs. Sousa and Johnson’s Statement of Material Facts ¶ 1 (Docket # 65) (Resp. to Sousa and Johnson SMF). On November 16, 2001, Mr. Sousa signed an agreement (the Sousa BCOP Agreement) with BCOP. PI. ’s Opp’n to Johnson and Sousa Summ. J. Mot. Attach. 4 at 2 (Sousa BCOP Agreement ).

Likewise, from 1996 through October 13, 2009, George Johnson worked for OfficeMax, BCOP, or their predecessors. Sousa and Johnson SMF ¶ 10; Resp. to Sousa and Johnson SMF ¶ 10. On February 5, 1999, Mr. Johnson signed a Noncompetition Agreement with BCOP (the Johnson BCOP Agreement). Pi’s Opp’n to Johnson and Sousa Summ. J. Mot. Attach. 6 at 2 (Johnson BCOP Agreement).

In October 2009, “as part of a corporate reorganization plan,” OfficeMax terminated Messrs. Sousa and Johnson’s employment. Sousa and Johnson SMF ¶¶ 2, 11; Resp. to Sousa and Johnson SMF ¶¶ 2, 11. After the termination, in exchange for severance pay^ — 39 weeks for Mr. Sousa and 26 weeks for Mr. Johnson — they each executed agreements with OfficeMax entitled “WAIVER OF CLAIMS AND GENERAL RELEASE” (respectively, the “Sousa Release” and the “Johnson Release”). Sousa and Johnson SMF ¶¶ 3, 12; Resp. to Sousa and Johnson SMF ¶¶ 3, 12. Messrs. Sousa and Johnson further agreed to “refrain from soliciting ‘customers or prospective customers on which [they] called for OfficeMax for the purpose of selling or distributing products or services similar to or competitive with those sold or distributed by OfficeMax.’ ” Sousa and Johnson SMF ¶¶ 5,12; Resp. to Sousa and Johnson SMF ¶¶ 5,12.

The duration of the prohibition on solicitation remains in dispute. Messrs. Sousa and Johnson maintain that, pursuant to their General Releases, the restriction “lasted only so long as OfficeMax paid [them] severance,” 39 weeks for Sousa and 26 weeks for Johnson. Sousa and Johnson SMF ¶ 5; PI. ’s Opp’n to Johnson and Sousa Summ. J. Mot. Attach. 5 at 1 (Sousa Release); Pi’s Opp’n to Johnson and Sousa Summ. J. Mot. Attach. 7 at 1 (Johnson Release). OfficeMax asserts that these two Defendants remain subject to the 12 month noncompetition provision in their BCOP Agreements by virtue of paragraph 4.c of the General Release, which states that “[t]his Paragraph 4.e shall in no way restrict or limit other agreements between Associate and OfficeMax relating to non-competition and/or non-solicitation of customers.” Sousa and Johnson SMF ¶¶ 8,15; Resp. to Sousa and Johnson SMF ¶¶ 5, 8, 12, 15. In other termination agreements, OfficeMax has inserted a variation of the language in Paragraph 4.c, adding two final sentences:

This Paragraph 4.e shall in no way restrict or limit other agreements between Associate and OfficeMax relating to non-competition and/or non-solicitation of customers. In exchange for the consideration provided in this Agreement, Associate reaffirms his/her obligations under any prior agreement relating to noncompetition and/or non-solicitation of OfficeMax customers; Associate agrees to abide by any such agreement.

Sousa and Johnson SMF ¶ 19; Resp. to Sousa and Johnson SMF ¶ 19 (emphasis in statements of fact).

C. John Steele

BCOP hired John Steele in 1992. Statement of Material Facts in Supp. of Def. John Steele’s Mot. for Summ. J. ¶¶ 1, 2 (Docket # 51) (Steele SMF); PI. ’s Resp. to Def. Steele’s Statement of Material Facts ¶¶ 1, 2 (Docket # 61) (Resp. to Steele SMF). After he was hired, Mr. Steele signed an agreement with BCOP entitled “Confidential Information and Noncompetitive Agreement” (Steele BCOP Agreement). Steele SMF ¶ 2; Resp. to Steele SMF ¶ 2. The Steele BCOP Agreement included “Attachment A,” which listed “ACCOUNTS EXEMPT FROM NON-COMPETITION CLAUSE.” Steele SMF ¶3; Resp. to Steele SMF ¶3; Pi’s Opp’n to Steele Mot. Attach. 10 (Steele BCOP Agreement). Mr. Steele later became employed by OfficeMax. Steele SMF ¶ 4; Resp. to Steele SMF ¶ 4.

Some time before November 12, 2009, OfficeMax told Mr. Steele and other sales persons that “some sales positions were being eliminated and that he could apply for continued employment ... [and] that he would be offered continued employment.” Steele SMF ¶ 6; Resp. to Steele SMF ¶ 6. OfficeMax offered employment to Mr. Steele on November 23, 2009. Steele SMF ¶ 6; Resp. to Steele SMF ¶ 6.

On the same day, Mr. Steele’s employment with OfficeMax ended., Steele SMF ¶ 6, Resp. to Steele SMF ¶ 6. On that day, Mr. Steele called some of his OfficeMax customers and “left his laptop computer, Blackberry, ID badge and a portfolio of his notes in his desk at OfficeMax’s offices.” Steele SMF ¶ 7, 25; Resp. to Steele SMF ¶ 7, 25. Mr. Steele claims also to have “collected and returned to OfficeMax all property belonging to OfficeMax and all documents and information he had relating to OfficeMax or its customers,” including approximately twenty-four boxes of materials, except for his performance evaluations and related papers. Steele SMF ¶¶ 8, 9; Resp. to Steele SMF ¶ 8, 9. However, OfficeMax alleges that Steele did not return “two flash drives that he had connected to his laptop computer.” Resp. to Steele SMF ¶8; Pl.’s Opp’n to Steele Mot. Attach. 2 at 5 (PL’s Interrog. Resp.). Also in dispute is whether Mr. Steele returned a list of customers he printed prior to his resignation from OfficeMax. Resp. to Steele SMF ¶ 8; Pl. ’s Interrog. Resp. at 5. Mr. Steele claims to have returned the list “no later than November 30 or December 1, 2009.” Steele SMF ¶10, Resp. to Steele SMF ¶ 10. None of the customers that Mr. Steele called on his final day at OfficeMax has “completely stopped” buying OfficeMax supplies and products. Steele SMF ¶ 27, Resp. to Steele SMF ¶ 27.

II. DISCUSSION

A. Motions to Strike or Exclude

The Court considers the dueling motions to strike or exclude.

1. John Steele’s Motion to Strike Norway Savings Bank Document

John Steele moved to strike OfficeMax’s Exhibit F, filed in support of its opposition to his summary judgment motion. Steele Mot. to Strike at 1. Exhibit F is a July 14, 2010 Account Sales Summary for Norway Savings Bank (Norway), showing OfficeMax’s sales to Norway for 2009 and January-July 2010. Id.; Norway Account Sales Summary (Docket # 60). On March 18, 2009, Mr. Steele formally requested that OfficeMax produce documents that show the identity of Mr. Steele’s Assigned Customers, OfficeMax’s total sales to those customers from the two-year period before his termination through the date of its production of documents, and the details of each such sale from his termination through the date of the production. Steele Mot. to Strike at 2-3. OfficeMax objected to the production of these documents on the ground that the requests were overly broad, unduly burdensome, and that they sought information “that is not relevant for discovery.” Id. Yet OfficeMax voluntarily agreed to produce “documents reflecting total sales to the customers whom Steele serviced for OfficeMax on an annual basis for 2008-2009.”

Mr. Steele argues that OfficeMax refused to produce the Norway document and others like it in compliance with his Document Request Nos. 28(d) and (e) based upon relevancy objections, but then produced the document when it deemed the information useful to oppose summary judgment. Id. at 3. OfficeMax acknowledges its duty to supplement discovery responses but claims that its failure to produce the document was at most harmless error, that it would have eventually produced it, and that in any event, Mr. Steele suffered no prejudice. PL’s Opp’n to Steele Mot. to Strike at 2-3. On September 7, 2010, Mr. Steele replied. Def. Steele’s Reply in Support of Mot. to Strike (Docket # 107).

The Court takes a dim view of OfficeMax’s cagey responses to Mr. Steele’s Request for Production of Documents 28. In its Complaint, OfficeMax alleged that Mr. Steele had violated the terms of the NonDisclosure and Noncompetition Agreement by soliciting OfficeMax customers during the twelve month period following his termination of OfficeMax employment, which it said was November 23, 2009. Compl. at 20-21. It sought actual damages against Mr. Steele. Id. at 21. OfficeMax’s continued sales to the Mr. Steele’s customers are manifestly “relevant to” both OfficeMax’s claims and Mr. Steele’s defenses. Fed.R.Civ.P. 26(b)(1). The Court views OfficeMax’s responses to the requests for production of documents as frivolous and bordering on bad faith. The Court is skeptical about OfficeMax’s contentions that disclosure of this type of one-page document would have been “burdensome” and that the request was “overly broad”. These objections are belied by the fact that OfficeMax readily filed the document in support of its own motion. More troubling is OfficeMax’s time-limited disclosure of responsive documents only through December 31, 2009. The Court has little confidence that, if OfficeMax had not later viewed the production of post-2009 documents as advantageous, it would have voluntarily produced documents like the July 14, 2010 Norway document.

The Court finds OfficeMax’s conduct particularly egregious in view of its track record on discovery in this case. After July 15, 2010, Magistrate Judge Kravchuk was required to issue two separate orders directing production of documents by OfficeMax, and to intervene in a third dispute about the parties’ adherence to the confidentiality order. Report of Telephone Conference and Order (Docket # 92); Report of Telephone Conference and Order (Docket # 101); Order (Docket # 196). Furthermore, OfficeMax voluntarily disclosed the Account Sales Summary only when it thought it was to its advantage.

Nonetheless, the Norway document was dated July 14, 2010 and OfficeMax filed it the day after it was created. At that time, discovery had not yet closed and Mr. Steele had not sought to compel production from OfficeMax. It is therefore difficult to conclude that Mr. Steele has suffered any actual prejudice from the delayed production. See Steele Reply to Mot. to Strike at 2 (acknowledging that OfficeMax “produce[d] the same data for Steele’s customers other than Norway Savings Bank [on] August 31”). Accordingly, the Court denies John Steele’s request to strike Exhibit F.

2. The Defendants’ Motion for Sanctions

Pointing to OfficeMax’s actions with the Norway document and its alleged failure to respond to the Defendants’ discovery requests, the Defendants demand that the OfficeMax Complaint be dismissed. Defs.’Sanctions Mot. at 1. OfficeMax responded contesting most of the Defendants’ allegations and protesting its compliance with the rules and orders of discovery. PL’s Sanctions Opp’n at 1-2. The Court dismisses the Defendants’ motion without prejudice. In fairness to the parties, the Court is not in a good position to select between countervailing charges of deliberate non-compliance and protestations of innocence.

From the record, however, the Court is concerned that OfficeMax has not been fully complying with its discovery obligations and it warns OfficeMax counsel against any recurrence of what the Court views as the sharp practice of law. Because this conduct is inconsistent with the Court’s prior exposure to OfficeMax counsel, the Court will extend them the benefit of the doubt this time, but the Court reminds OfficeMax counsel that discovery in a civil case is a serious business with serious repercussions for the parties. The object is to disclose relevant documents so that the truth will come out and justice will be done, not to hide legitimately discoverable documents under the guise of legal objections in an effort to gain an unfair strategic advantage.

As this matter progresses to trial, the Defendants are free to reinitiate their motion for sanctions and the Court will reexamine any instances of past noncompliance and any additional evidence of non-compliance that has taken place and will fashion an appropriate remedy.

3. OfficeMax’s Motion to Exclude Gagne Declarations

OfficeMax challenges Mr. Sousa’s submission of two affidavits and their attached exhibits by Edmund Gagne, the state of Maine Sales Manager for W.B. Mason, to support his opposition to OfficeMax’s partial summary judgment motion against him. An explanation of the significance of Mr. Sousa’s reliance upon the affidavits is in order. OfficeMax’s partial summary judgment motion against Sousa asserts that Mr. Sousa “now concedes that he retained two computer flash drives containing information belonging to OfficeMax for months after his termination of employment.” PI. ’s Sousa and Johnson Summ. J. Mot. at 6-8. In his opposition, Mr. Sousa attacked the business justification for any noncompetition or nondisclosure agreement, saying that customer goodwill is not a major factor in the office products business and there are no real trade secrets. Sousa Summ. J. Opp’n at 6. To support this claim, Mr. Sousa attached an October 28, 2010 affidavit from Mr. Gagne, which referred to an attached multi-page document entitled “Vision 2000.” Decl. of Edmund Gagne in Opp’n to PI. ’s Mot. for Summ. J. (Docket # 164) 0Gagne Oct. 28, 2010 Decl.) Attachs. 1, 2 (Vision 2000 Study).

In addition, Mr. Sousa attached an affidavit from defense counsel Stephen Rider, addressing OfficeMax’s claim that Mr. Sousa had failed or refused to turn over the original OfficeMax flash drives. Decl. of Stephen W. Rider with Respect to PI. ’s Mot. for Summ. J. Against Sousa and Johnson (Docket # 165). Mr. Rider attached as an exhibit to his declaration the second Gagne declaration at issue. Id. Attach. 9 (Gagne June 80, 2008, Decl). This affidavit was dated June 30, 2008 and was filed in a Cumberland County Superi- or Court case, OfficeMax, Inc. v. W.B. Mason Co., Inc., Docket # 08-311. Id. Mr. Sousa refers to the June 30, 2008 Gagne affidavit to demonstrate that OfficeMax knew from prior litigation that W.B. Mason required transferring employees not to bring any documents or information from their old employers, specifically OfficeMax. Sousa Summ. J. Opp’n at 20. When OfficeMax filed suit against Mr. Sousa, it mailed a copy of the Complaint to W.B. Mason’s CEO, containing the allegation that, contrary to what OfficeMax knew was W.B. Mason policy, Mr. Sousa had retained confidential OfficeMax information. Id. Mr. Sousa says that by sending W.B. Mason’s CEO a copy of the Complaint, OfficeMax was attempting to encourage W.B. Mason to fire Mr. Sousa for what OfficeMax knew W.B. Mason would consider a firing offense. Id. This, in Mr. Sousa’s view, amounted to abuse of process. Id.

Turning to OfficeMax’s Motion to Exclude the June 30, 2010 Gagne Affidavit, OfficeMax’s first point in favor of exclusion is that the Gagne Affidavit is not dated June 30, 2010, as Mr. Sousa claims, because it is identical to a Gagne Affidavit dated June 30, 2008, which had been filed in the prior Cumberland County Superior Court litigation involving OfficeMax. PI. ’s Mot. to Exclude at 2. Second, OfficeMax says that Mr. Sousa failed to produce the Gagne declaration in response to discovery that should have elicited its revelation. Id. at 2-3. Third, OfficeMax says that Mr. Gagne’s opinions are expert opinions and Mr. Sousa has never designated Mr. Gagne as an expert witness. Id. at 3-5. Fourth, OfficeMax contends that Mr. Gagne’s statements contain an “extensive amount of inadmissible hearsay” and otherwise fail to comply with the personal knowledge requirement of Rule 56(f). Id. at 6.

In opposing exclusion of the June 30, 2010 affidavit, the Defendants first describe the earlier OfficeMax litigation that led to the filing of the June 30, 2008, Gagne declaration. Defs. ’ Opp’n to Mot. to Exclude at 1-4. They then address OfficeMax’s contention that Mr. Gagne’s opinions are expert opinions, asserting that his opinions are not expert opinions but rather lay witness opinions under Federal Rule of Evidence 701. Id. at 5-8. Finally, the Defendants say that the June 30, 2010 Gagne declaration:

is submitted only for a very limited purpose, ie., to show that, when OfficeMax sent its letter with a copy of its Complaint in this action to W.B. Mason’s CEO, OfficeMax was on notice that this might lead to the Defendants’ firing. Specifically, Mr. Gagne’s 2008 Affidavit informed OfficeMax that W.B. Mason required new employees like Sousa, Johnson and Steele to confirm, as a condition of their employment, that they had returned to their former employer all property and other materials concerning the former employer’s business or customers. The Complaint OfficeMax sent to W.B. Mason’s CEO, however, alleged (falsely) that the Defendants had violated these instructions. Defendants argue that this evidence demonstrates OfficeMax’s bad faith motive for purposes of the Defendants’ abuse of process counterclaims.

Id. at 8-9. Regarding their failure to produce the June 30, 2008 Gagne declaration, the Defendants observe that OfficeMax already had it, and in any event, OfficeMax cannot claim any prejudice. Id. at 9-10.

In reply, OfficeMax says that the Defendants have not cited any authority to allow Mr. Gagne to present such “incredibly broad, wholly conclusory types of statements.” PL’s Reply Mot. to Exclude at 1. OfficeMax reiterates that the Court should reject the Gagne declaration insofar as it contains undesignated expert testimony and should reject the declaration insofar as it contains irrelevant lay testimony. Id. at 2-3. OfficeMax repeats its contention that the Court should reject the Gagne declaration because the Defendants’ failed to produce it in discovery. Id. at 4.

In seeking to exclude the June 30, 2008 Gagne declaration, OfficeMax is demanding a Rule 37(c) exclusion sanction. Fed.R.Civ.P. 37(c). The context of this potential exclusion is significant since in his counterclaim, Mr. Sousa’s abuse of process counterclaim is premised on OfficeMax’s alleged knowledge of W.B. Mason’s employment policy and the possibility that W.B. Mason would fire Mr. Sousa for violating its policy. Thus, the exclusion of the Gagne declaration could amount to the dismissal of his abuse of process claim.

In these circumstances, the First Circuit has cautioned against preclusion when it would carry “the force of a dismissal” and has said that the justification for preclusion “must be comparatively more robust.” Esposito v. Home Depot U.S.A., Inc., 590 F.3d 72, 79 (1st Cir.2009). Before preclusion in these circumstances, the Court must review:

a “host of factors, including: (1) the history of the litigation; (2) the sanctioned party’s need for the precluded evidence; (3) the sanctioned party’s justification (or lack of one) for its late disclosure; (4) the opponent-party’s ability to overcome the late disclosure’s adverse effects — e.g. the surprise and prejudice associated with the late disclosure; and (5) the late disclosure’s impact on the district court’s docket.

Id. at 78. Considering the circumstances here, the Court easily concludes that exclusion of the June 30, 3008 Gagne affidavit is not appropriate under Esposito. In spite of Mr. Sousa’s weak explanation for his failure to disclose his intended use of the June 30, 2008 Gagne declaration, there are three countervailing factors: 1) OfficeMax’s previous awareness of the June 30, 2008 Gagne declaration, 2) the lack of any actual prejudice to OfficeMax, and 3) the lack of an appreciable impact on the Court’s docket.

The October 28, 2010 Gagne declaration (Exhibit A) raises a different issue. Messrs. Johnson and Sousa did not designate Edmund Gagne as an expert witness and they contend that they are not submitting his October 28, 2010 declaration as expert testimony but purely as Rule 701 lay testimony. Defs.’ Gagne Opp’n at 5-8. OfficeMax disagrees. OfficeMax Gagne Reply at 2-4. The Court concludes that some of the Gagne declaration is expert testimony and some is not. The “line between expert testimony under Federal Rule of Evidence 702 ... and lay opinion testimony under Federal Rule of Evidence 701 ... is not an easy one to draw.” United States v. Ayala-Pizarro, 407 F.3d 25, 28 (1st Cir.2005) (quoting United States v. Colón Osorio, 360 F.3d 48, 52-53 (1st Cir.2004)).

In his October 28, 2010 declaration, Mr. Gagne asserts that W.B. Mason “does not require its sales representatives or managers to sign non-competition agreements.” Gagne Oct. 28, 2010 Decl. ¶ 4. He explains that the office supply business is a “commodity business” and that customers are concerned with “only three things — price, prompt and accurate deliveries, and customer service.” Id. ¶ 7. He further says that “[bjased upon my over 25 years experience, I have learned that there is little or no customer loyalty or goodwill in the office products supply industry.” Id. ¶ 15. Mr. Gagne cites a 2000 study by United Stationers called “Vision 2000,” which arguably confirms that “customers care principally about price and service, and there is little or no customer goodwill.” Id. ¶¶ 16-17. Mr. Gagne also states that W.B. Mason does not use customer lists and instead prefers the “cold call” method, walking down the street and calling on “every business — street by street, building by building and office by office.” Id. ¶ 18.

Even if Mr. Gagne correctly describes W.B. Mason’s business model, the Court is dubious that Mr. Gagne’s experience can be extrapolated to the office supply business as a whole and to OfficeMax in particular. There is no evidence in this record, for example, that OfficeMax has adopted a “cold call” sales model and devalues longstanding customer-salesperson relations. Moreover, the further Mr. Gagne strays from his personal experience as a W.B. Mason salesperson to more generalized opinions about the office supply industry and how OfficeMax must operate its business, the more he sounds like an expert. Having carefully reviewed the October 28, 2010 Gagne declaration and the supporting documents, the Court rejects the portion of the declaration that is not based on his personal knowledge, including those portions based upon the Vision 2000 study. See Fed.R.Civ.P. 56(c)(4) (“An affidavit or declaration used to support or oppose a motion must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant or declarant is competent to testify on the matters stated.”).

The Court denies OfficeMax’s motion to exclude in part and grants it in part. It denies the motion regarding the June 30, 2008 Gagne declaration and grants the motion regarding the October 28, 2010 Gagne declaration, but only insofar as it contains expert opinions not based on Mr. Gagne’s personal knowledge.

B. Summary Judgment Standard

A party moving for summary judgment is entitled to judgment in its favor only “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c)(2). A fact is material if its resolution “might affect the outcome of the suit under the governing law.” Buchanan v. Maine, 469 F.3d 158, 166 (1st Cir.2006) (quoting Seaboard Sur. Co. v. Town of Greenfield, 370 F.3d 215, 218-19 (1st Cir.2004)). An issue is genuine “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Id. (quoting Seaboard Sur. Co., 370 F.3d at 218-19).

Once this evidence is supplied by the moving party, “the nonmoving party must establish a trial-worthy issue by presenting enough competent evidence to enable a finding favorable to the nonmoving party.” ATC Realty, LLC v. Town of Kingston, 303 F.3d 91, 94 (1st Cir.2002) (quoting LeBlanc v. Great Am. Ins. Co., 6 F.3d 836, 842 (1st Cir.1993). However, the nonmoving party cannot meet its burden with “conclusory allegations, improbable inferences, and unsupported speculation.” Sutliffe v. Epping Sch. Dist., 584 F.3d 314, 325 (1st Cir.2009) (quoting Sullivan v. City of Springfield, 561 F.3d 7, 14 (1st Cir.2009)); accord Carroll v. Xerox Corp., 294 F.3d 231, 236-37 (1st Cir.2002). Rather, it must “present ‘enough competent evidence’ to enable a factfinder to decide in its favor on the disputed claims.” Carroll v. Xerox Corp., 294 F.3d 231, 236-37 (1st Cir.2002) (quoting Goldman v. First Nat’l Bank of Boston, 985 F.2d 1113, 1116 (1st Cir.1993) (internal quotation marks omitted). The Court is then tasked with reading the record “in the light most favorable to the non-moving party, drawing all reasonable inferences in [the non-movant’s] favor.” Merchs. Ins. Co. of N.H., Inc. v. U.S. Fid. & Guar. Co., 143 F.3d 5, 7 (1st Cir.1998).

C. Defendants’ Motions for Summary Judgment

1. Effect of Termination on the Enforceability of the BCOP Agreement’s Noncompetition Provision

In their summary judgment motions, the Defendants all put forth the policy-based argument that “a termination without cause renders a prior noncompete unenforceable.” Sousa and Johnson Summ. J. Mot. at 5; Steele Summ. J. Mot. at 8. In support, the Defendants refer to an article by Attorney Kenneth J. Vanko in the DePaul Business & Commercial Law Journal entitled “You’re Fired!! And Don’t Forget Your Non-Compete!,” 1 DePaul Bus. & Com. L.J. 1 (2002), which surveys the legal landscape surrounding noncompetition agreements asserted against terminated employees. Sousa and Johnson Summ. J. Mot. at 5-6; Steele Summ. J. Mot. at 8-11.

The Defendants concede that “Maine Courts have not yet addressed this question or determined whether a termination without cause vitiates a noncompete.” Sousa and Johnson Summ. J. Mot. at 6; Steele Summ. J. Mot. at 8-9. Even so, relying on the article’s logic and “Maine’s long hostility to such noncompetition covenants,” the Defendants assert that “there can be little doubt that the Supreme Judicial Court of Maine, if presented with this question, would ... hold that these non-competes are unenforceable, as a matter of law, because OfficeMax terminated [the Defendants] without cause.” Sousa and Johnson Summ. J. Mot. at 10; Steele Summ. J. Mot. at 11. They urge the Court to “adopt the majority rule and hold that discharge without cause vitiates an employee’s territorial noncompete.” Sousa and Johnson Summ. J. Reply at 2; Steele Summ. J. Mot. at 11.

OfficeMax challenges the Defendants attempts to have the Court adopt a per se rule against noncompetition agreements in instances of employer-initiated terminations. Pl.’s Opp’n to Johnson and Sousa Summ. J. Mot. at 11-16; Pi’s Opp’n to Steele Mot. at 14. In doing so, OfficeMax invokes “established rules of comity” between federal and state courts, and asserts that any attempt to create such a rule here “would constitute an unjustified expansion of state law.” Pi’s Opp’n to Johnson and Sous a Summ. J. Mot. at 12; Pi’s Opp’n to Steele Mot. at 15. Challenging the Defendants’ assertion of Maine’s “long hostility to noncompetition agreements,” OfficeMax proceeds to detail instances where Maine courts have upheld noncompetition agreements or applied a more flexible, fact-specific standard. Pi’s Opp’n to Johnson and Sousa Summ. J. Mot. at 12-16; PI. ’s Opp’n to Steele Mot. at 15.

The Court considered these very same arguments in OfficeMax Inc. v. County Qwick Print, Inc., No. CV-10-110-B-W, 751 F.Supp.2d 221, 244-45, 2010 WL 4473306, at *21 (D.Me. Nov. 8, 2010), and ruled that “[i]n the absence of guidance from the Maine Legislature and the Maine courts, the Court cannot accurately predict what, if presented with this question, the Maine Supreme Judicial Court would do.” It concluded that the “safer approach is to consider the circumstances of [the employee’s] termination as a factor in balancing the relative equities between the parties, but as a federal court, not to attempt to create a new rule of substantive state law.” Id. Absent intervening contrary authority, the Court reiterates its earlier conclusion for the same reasons. Id.

2. Effect of the Waiver of Claims and General Release on the BCOP Agreements

In their summary judgment motions, Messrs. Johnson and Sousa assert that that the general release they executed in exchange for severance pay reciprocally released them from the BCOP Agreements by OfficeMax. Sousa and Johnson Summ. J. Mot. at 12. Their argument partially undergirds their counterclaims for declaratory judgment to void the BCOP Agreements, and they press it again in their opposition to OfficeMax’s summary judgment motion on their declaratory judgment counterclaim. Johnson Summ. J. Opp’n at 11-12; Sousa Summ. J. Opp’n at 13.

Citing “long-standing Maine law” from Butters v. Kane, 347 A.2d 602, 603 (Me. 1975), Messrs. Sousa and Johnson maintain that the “broad general release [in the Sousa and Johnson Release] implies a reciprocal, broad release from [OfficeMax,] absent an express reservation of rights.” Sousa and Johnson Summ. J. Mot. at 12. Because the Sousa and Johnson Releases lack such an express reservation, Messrs. Sousa and Johnson assert that “OfficeMax is deemed to have released all rights it had against Sousa and Johnson, including all rights under prior noncompetes” including their BCOP Agreements. Sousa and Johnson Summ. J. Mot. at 13.

OfficeMax attacks the argument, both in its opposition to the Defendants’ summary judgment motions and in its own summary judgment motion. OfficeMax presses two points. First, it asserts that Butters is limited to releases of claims arising out of past events. Pl.’s Opp’n to Johnson and Sousa Summ. J. Mot. at 18. According to OfficeMax, the Sousa and Johnson Releases fall outside Butters’ scope because they “expressly excluded potential claims ‘arising from events occurring after the date Associate signs this Agreement.’ ” PL’s Opp’n to Johnson and Sousa Summ. J. Mot. at 18 (emphasis in original).

Second, OfficeMax argues that, even accepting that the Sousa and Johnson General Releases fall within Butters’ scope, the Defendants’ argument still fails because “an express reservation of rights in favor of OfficeMax was included in the severance agreements relating to their continuing, post-employment obligations to OfficeMax. ...” PL’s Opp’n to Johnson and Sousa Summ. J. Mot. at 19. OfficeMax cites Paragraph 4.c of the Sousa and Johnson Releases, which states that “This Paragraph 4.c shall in no way restrict or limit other agreements between Associate and OfficeMax relating to non-competition and/or non-solicitation of customers.” PL’s Opp’n to Johnson and Sousa Summ. J. Mot. at 19 (emphasis in PL’s Opp’n to Johnson and Sousa Summ. J. Mot.). OfficeMax reads this provision as “clearly preserving] their continuing, contractual obligations pursuant to the other agreements [the Defendants] had signed with OfficeMax concerning the issues of non-competition and/or non-solicitation of customers.” PL’s Opp’n to Johnson and Sousa Summ. J. Mot. at 19.

Replying to OfficeMax’s argument, Messrs. Sousa and Johnson assert that Paragraph 4.c of the Sousa Release and Johnson Release, contains “a drafting error on the part of OfficeMax,” which limits the reach of the reservation of rights clause only to that paragraph and does not otherwise affect the broad release. Sousa and Johnson Summ. J. Reply at 2-3.

The general release states, inter alia, that Messrs. Sousa and Johnson release OfficeMax from “all suits, causes of action, claims and demands, whether known or unknown, that Associate has or may have as of the date that Associate executes this Agreement ...” and includes claims of breach of contract. Sousa Release at 1; Johnson Release at 1. According to Messrs. Johnson and Sousa, their explicit release of claims against OfficeMax included the implicit release by OfficeMax of claims against them, including claims based upon the previous BCOP Agreement. The Defendants’ argument is an intricate one, and requires a brief review of Maine law.

In Butters, the Maine Law Court addressed a lawsuit that arose out of a snowmobile collision between Peter Kane and Robert Butters that caused personal injuries to Mr. Butters’ wife, Beverly, who was a passenger on Mr. Butters’ snowmobile at the time of the collision. 347 A.2d at 602. Ms. Butters sued Mr. Kane, who impleaded Mr. Butters. Id. at 602-03. While Ms. Butters’ lawsuit was pending, Mr. Kane paid Ms. Butters $25,000 in consideration, for which Mr. and Ms. Butters released Mr. Kane “from any and all claims, demand, damages, actions, causes of action or suits of any kind of nature whatsoever.” Id. at 603. Following this settlement, Mr. Kane amended his complaint to seek judgment against Mr. Butters for the percentage of the $25,000 consistent with Mr. Butters’ contributory negligence in causing the accident and Ms. Butters’ injuries. Id. The case went to trial and a jury found that Mr. Butters was thirty percent responsible for the accident. Id. The Superi- or Court Justice, however, granted judgment notwithstanding the verdict, based on the release among the parties. Id. at 603-04.

On appeal, the Maine Supreme Judicial Court, citing Norton v. Benjamin, 220 A.2d 248 (Me.1966), noted that it is settled law in the state of Maine that “ jail causes of action’ ... include the right of contribution unless such right of action for contribution is expressly excepted from the terms of the release.” Id. at 603. Norton, however, involved a mutual release and in Butters, Mr. Kane had not signed the release. Id. The Law Court reviewed case law from other jurisdictions which, based upon various principles of equity, concluded that “unless the releasee expressly reserves his right of action against the releasor, all litigation between the parties arising out of the same cause of action is terminated whether suit is pending at the time the release is given or is subsequently asserted.” Id. at 604 (internal citation omitted). The Law Court adopted the rationale of these courts and “declare[d] the rule in Maine to be that the making of a settlement without any express reservation of rights constitutes complete accord and satisfaction of all claims of immediate parties to the settlement arising out of the same accident.” Id.

Since 1975, Maine courts, both state and federal, have applied Butters. See, e.g., N. Am. Co. for Life and Health Ins. v. Malmstrom, No. CIV. 00-83-B-H, 2001 WL 225014, at *2 (D.Me. March 1, 2001); Cyr v. Cyr, 560 A.2d 1083, 1084 (Me.1989); Snyder v. Legacy Farms, Inc. of Perham, 2002 WL 32068250, No. CV-01-078, at *4 (Me.Super. Nov. 13, 2002). In Cyr v. Cyr, for example — also cited by the Defendants — the Law Court further explained its reasoning in Butters:

Ordinary reasonable and reasoning persons occupying the position of the releasors at the time they accepted a settlement of their claim and executed the release and dismissal of their suit would think the entire matter was settled. They would not expect the releasee to pay them money in satisfaction of their claim and then sue them upon a cross-claim. No reason appears why the releasee should pay money to them when he felt they were actually indebted to him.

Id. (quoting Mensing v. Sturgeon, 250 Iowa 918, 97 N.W.2d 145, 151 (1959)) (emphasis in original; internal brackets omitted). It clarified that “implicit in the bargain of accord and satisfaction is a reciprocal release, by the party who has procured the express release, of any claims inconsistent with the settlement effected by the release.” Id.

Butters’ reach is not unlimited, however, and later cases clarify that it does not address circumstances like this one where the parties had neither entered nor contemplated litigation when the general release was signed. In Reed & Reed, Inc. v. Weeks Marine, Inc., No. 02-195-P-H, 2004 WL 256335, at *10 (D.Me. Jan. 9, 2004), this Court held that Butters “cannot reasonably be interpreted to apply to releases executed in circumstances other than the settlement of litigation.” The Court noted that “[t]o adopt [the opposing] view would be to import reciprocity into every release document that does not include an explicit reservation of rights by the releasee.” Id. The reasoning in Reed & Reed is applicable here. The Sousa and Johnson releases did not relate to any ongoing litigation, or even the threat of litigation. Their purpose was precisely to avoid litigation by settling any and all potential disputes once the parties were freed from their employment relationship.

The facts in Butters further limit its precedential authority. As argued by OfficeMax, the general release in Butters settled disputes from a prior, clearly defined event. See Pl.’s Opp’n to Johnson and Sousa Summ. J. Mot. at 18-19; Pl. ’s Sousa and Johnson Summ. J. Mot. at 13; PL’s Sousa and Johnson Summ. J. Reply at 12. It did not profess to resolve future, unrelated events. The Law Court emphasized this point, noting that other courts view a general release as terminating “all litigation between the parties arising out of the same cause of action ... whether suit is pending at the time the release is given or is subsequently asserted.” Butters, 347 A.2d at 604 (emphasis added). The Law Court did not explain that the general release terminated future litigation arising out of some other cause of action.

Cyr is distinguishable for the same reason. It involved the sale of a business and subsequent allegations of misrepresentation and breach of warranty. The sale included a release of “any claims arising out of the mortgage and notes that the buyers had given the sellers to purchase the restaurant.” Cyr, 560 A.2d at 1084. By its terms, the release did not cover future transgressions by the parties unrelated to the purchase of the business.

Consistent with Cyr, this Court starts with the language of the agreements:

Associate does hereby release and discharge the Company from and for all suits, causes of action, claims and demands, whether known or unknown, that Associate has or may have as of the date that Associate executes this Agreement, including without limitation, those arising out of, or in any way related to Associate’s employment with and termination of employment from the Company.

Sousa Release at 1 (emphasis added); Johnson Release at 1 (same). By their language, the Waiver of Claims and General Releases apply only to causes of action that existed up to and including the date they were executed. The events that form the gravamen of OfficeMax’s Complaint had not yet taken place and, by the terms of the Releases, were not included.

The Court concludes that the general releases do not void the BCOP Agreements.

3. The Validity of the BCOP Agreements With Respect to Maine Public Policy

The Defendants challenge the BCOP Agreements as void as a matter of public policy. They first make this argument in their declaratory judgment counterclaims, seeking judgment that their noncompetition agreements are “void and unenforceable.” Sousa Ansiver at 4; Johnson An swer at 4; Steele Answer at 18: They press the point again in their opposition to OfficeMax’s summary judgment motions. Sousa Summ. J. Opp’n at 13-17; Johnson Summ. J. Opp’n at 12-15. OfficeMax disagrees. PI. ’s Steele Summ. J. Mot. at 2-6, 22; Pl.’s Sousa and Johnson Summ. J. Mot. at 15; PL’s Sousa and Johnson Summ. J. Reply at 6-12,15.

Steele’s BCOP Agreement provide for a one-year restriction on the sale or distribution of services or merchandise:

For a period of 12 months after termination of my employment with [BCOP] ... (or for a period of 12 months after a final judgment or injunction enforcing this covenant), I will not ... sell or attempt to sell any services or merchandise customarily provided by [BCOP] to any prior or current [BCOP] customer which I called on at any time as a representative of [BCOP].

Steele BCOP Agreement at 1. Messrs. Johnson and Sousa’s BCOP Agreements contain similar prohibitions:

For a period of 12 months after termination of my employment with [BCOP] ... (or for a period of 12 months after a final judgment or injunction enforcing this covenant), I will not ... engage in the sale or distribution of office supplies, office furniture or related office products or services, in any geographic territories I was assigned by BCOP in the 12 months prior to my termination of employment.

Sousa BCOP Agreement at 1; Johnson BCOP Agreement at 1.

For Messrs. Johnson and Sousa, however, OfficeMax seeks more limited enforcement of the provision, asking that Messrs. Johnson and Sousa’s BCOP Agreements be enforced “to the extent [they] restraint ] [Johnson and Sousa] in the initial 12 months following their termination from competing for Plaintiffs existing customers located in the geographical territories that they worked in and managed for OfficeMax during their final twelve months of employment.” Pl.’s Sousa and Johnson Summ. J. Mot. at 2.

The Court considers the enforceability of the noncompetition provision “only as [OfficeMax] has sought to apply it and not as it might have been enforced on its terms.” Brignull v. Albert, 666 A.2d 82, 84 (Me.1995). At the same time, “the party seeking enforcement cannot leave it to the court to enforce only those provisions the court deems reasonable. To do so would require the court to redraft the contract.” Everett J. Prescott, Inc., 390 F.Supp.2d 44, 47 (D.Me.2005).

The scope of enforcement that OfficeMax seeks is slightly narrower than the restrictions provided by the plain text of the noncompetition clause. Yet, Messrs. Sousa and Johnson protest this effective change to the BCOP Agreements, noting that in OfficeMax’s complaint and in its motion for preliminary injunction, OfficeMax sought enforcement to the full scope of the contractual language and that “this bobbing and weaving” effectively asks the court to “redraft the contract, as the evidence develops in the case.” Sousa Summ. J. Opp’n at 15; Johnson Summ. J. Opp’n at 13-14.

The Court rejects this argument. The restriction OfficeMax seeks enforced is not significantly different than the restriction described in the contractual language and, consistent with Brignull, the Court considers the provisions of the Agreements that OfficeMax has “sought to apply and not as it might have been enforced on its terms.” 666 A.2d at 84.

The Defendants’ challenge to the validity of the noncompetition agreements is limited to their scope relative to the business interests that OfficeMax seeks to protect. Specifically, Messrs. Sousa and Johnson say that OfficeMax’s stated justification is only to protect its trade secrets and customer goodwill. They counter that genuine issues of material fact remain as to whether OfficeMax had any goodwill and whether trade secrets and confidential information play a significant role in the industry. Sousa Summ. J. Opp’n at 14; Johnson Summ. J. Opp’n at 14-15. In support of their argument, Sousa and Johnson offer the Declaration of Edmund Gagne, which the Court has limited to his lay, not expert opinions. See supra Part II.A.3. Def. Denis Sousa’s Opposing Statement of Material Facts ¶ 56 (Docket #162) (Sousa RPSMF); Def. George Johnson’s Opposing Statement of Material Facts ¶ 52 (Docket # 167) {Johnson RPSMF). Mr. Gagne asserts that W.B. Mason “does not require its sales representatives or managers to sign non-competition agreements.” Gagne Decl. ¶ 4. Mr. Gagne also states that W.B. Mason does not use customer lists and instead prefers the “cold call” method, walking down the street and calling on “every business— street by street, building by building and office by office.” Id. ¶ 18.

In OfficeMax v. County Qwick Print, the Court set forth its understanding of Maine law regarding covenants not to compete:

The Maine Law Court has emphasized that, because of the potential for post-employment covenants to restrict the former employee’s ability to earn a living, “such covenants are contrary to public policy and will be enforced only to the extent that they are reasonable and sweep no wider than necessary to protect the business interests in issue.” Chapman & Drake [v. Harrington], 545 A.2d [645,] 646-47 [ (Me.1988) ] (quoting Lord v. Lord, 454 A.2d 830, 834 (Me.1983) (internal quotation marks omitted)). The reasonability of a noncom-petition covenant “must ultimately be determined by the facts developed in each case as to its duration, geographic area and the interests sought to be protected.” Id. at 647.

In assessing the interests that OfficeMax seeks to protect, the Court notes that “protecting the employer simply from business competition is not a legitimate business interest to be advanced by such an agreement.” Chapman & Drake, 545 A.2d at 647. “[A] covenant not to compete may be reasonable, however, when the employee during his term of employment has had substantial contact with his employer’s customers and is thereby in a position to take for his own benefit the good will his employer paid him to help develop for the employer’s business.” Id. at 647; see also Roy v. Bolduc, 140 Me. 103, 103, 34 A.2d 479, 480-81 (1943) (holding unreasonable a noncompetition agreement where the employer possessed no trade secrets and had imparted no confidential information that could have been used against the employer).

751 F.Supp.2d at 245, 2010 WL 4473306, at *21.

In view of these principles, Messrs. Johnson and Sousa are making a Roy v. Bolduc argument: if the employer has no trade secrets and no confidential information, and there has been no improper interference with prior customers, a restrictive covenant would violate public policy against “the rightful exercise of ... skill and knowledge in gaining a livelihood in ... his calling or trade.” Roy, at 481. Messrs. Johnson and Sousa contend that because there is no such thing as goodwill in the office supply business, any agreement not to compete on that basis is void as against public policy.

This is a factual issue. Particularly once Mr. Gagne’s declaration is properly limited to lay testimony, there is little in the record that would justify a conclusion as a matter of law that OfficeMax has no goodwill or trade secrets to protect. The plain text of the Sousa and Johnson BCOP Agreements stipulates otherwise:

In agreeing to this restriction, I specifically acknowledge the substantial value to BCOP of my customer contracts and agree that such contacts constitute goodwill and a protectable interest of BCOP.

PI. ’s Sousa and Johnson Summ. J. Reply at 9. Under Maine law, it is OfficeMax’s burden to demonstrate the necessity and reasonableness of the restrictive covenants and that the restrictions “sweep no wider than necessary to protect the business interests in issue.” Chapman & Drake, 545 A.2d at 646-47. However, the reasonableness of a noncompetition covenant “must ultimately be determined by the facts developed in each case as to its duration, geographic area and the interests sought to be protected.” Id. at 647. The fact-based application of this legal standard makes summary judgment inappropriate for any of the Defendants on this issue.

4. Applicability of the Noncompetition Provision in Johnson’s BCOP Agreement

As regards George Johnson only, Mr. Johnson argues that his BCOP Agreement, “by its own, express terms” is enforceable only “when the termination results from something done by Johnson, and does not apply to a situation where OfficeMax terminates Johnson without cause.” Sousa and Johnson Summ. J. Mot. at 10. According to Mr. Johnson, the unique language of his BCOP Agreement limits the applicability of that noncompetition clause to situations where he either leaves voluntarily or is terminated for cause:

For a period of 12 months after termination of my employment with BCOP, whether such termination is voluntary or involuntary on my part....

Johnson BCOP Agreement at 1. Specifically, the parties dispute the meaning of “involuntary on my part,” which is not present in the later-signed Sousa BCOP Agreement. See Sousa BCOP Agreement at 1.

Mr. Johnson argues that the term cannot be surplusage and must have meaning. He concludes that the only logical interpretation is that the noncompete applies only “when the termination results from something done by Johnson.” Sousa and Johnson Summ. J. Mot. at 10. He reasons that because his termination was not the product of his own actions, it was not covered by his BCOP Agreement. Id. at 11. Furthermore, Mr. Johnson argues that “[t]o the extent there is any ambiguity in this clause, the clause must be construed against OfficeMax, both because it drafted the agreement, and because non-competition agreements are customarily interpreted strictly against the employer.... ” Sousa and Johnson Summ. J. Mot. at 11.

OfficeMax replies that Mr. Johnson is reading into the contract “hypothetical scenarios,” and reading out of the contract “the vital nature of the interests that OfficeMax is reasonably attempting to protect through the larger sentence at issue and the noncompetition clause itself.” PL’s Opp’n to Johnson and Sousa Summ. J. Mot. at 17. OfficeMax reasons that the broader protections granted by the “larger part of the sentence” — protecting OfficeMax from any departure by Johnson— should not be abridged by the “subordinate phrase.” Id. at 17-18.

“The summary judgment analysis for a breach of contract case depends upon the nature of the contract language; where the language is unambiguous, contract interpretation is a question of law for the court, where ambiguous, it is a question of fact for the jury.” Tate & Lyle Ingredients Ams., Inc. v. Trans. Dist., LLC, 746 F.Supp.2d 189, 195 (D.Me.2010) (citing FHS Props. Ltd. P’ship v. BC Assocs., 175 F.3d 81, 87 n. 7 (1st Cir.1999)). The initial determination of ambiguity is a question of law for the court. United States Liab. Ins. Co. v. Selman, 70 F.3d 684, 687 (1st Cir.1995). “[Contract language is ambiguous if the terms are inconsistent on their face, or if the terms allow reasonable but differing interpretations of their meaning.” Rodriguez-Abreu v. Chase Manhattan Bank, N.A., 986 F.2d 580, 586 (1st Cir.1993). That is, a term is ambiguous if it can be reasonably understood at least two ways. Coastal Ventures v. Alsham Plaza, LLC, 2010 ME 63, ¶ 26,1 A.3d 416, 424.

Here, the Court readily concludes that the language is ambiguous. The first part of the sentence describes the triggering event for the running of the twelve month period, namely “termination.” The second part of the sentence clarifies that the provision applies whether it is “voluntary or involuntary termination on my part.” “Voluntary on my part” presumably means that the noncompete agreement applies if Mr. Johnson quits. “Involuntary on my part” seems purely redundant since if it is involuntary, it must be involuntary on someone’s part, namely the person against whom the action is being taken.

The parties have reached for explanations of the phrase. One possibility is that the phrase refers to termination for cause, which would, by definition, be involuntary on the employee’s part. At oral argument, Mr. Johnson’s lawyer suggested that the phrase could also refer to a situation where Mr. Johnson’s employment is terminated should he become dis