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`SCHEDULE A
`The below Document Requests are to be responded to in accordance with the
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`following Definitions and Instructions.
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`DEFINITIONS
`Plaintiff incorporates by reference all Definitions from Plaintiff’s First
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`Request for Production of Documents Directed to All Defendants which is attached
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`hereto.
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`1.
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`2.
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`“Action” means the above-captioned action.
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`“Advisor” means any and all law firms, lawyers, financial advisors,
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`consultants, public relations person(s), persons or entities engaged or retained to
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`provide legal advice, financial advice, or other professional services.
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`3.
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`4.
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`“All” means any and all.
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`“Appraisal Action” means Brookdale International Partners, L.P., et
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`al. v. Nutraceutical International Corporation, C.A. No. 2017-0901-PAF (Del. Ch.).
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`5.
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`“Communication” means any exchange of information by any means
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`of transmission, whether formal or informal, at any place or under any circumstance,
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`including paper documents, email, text messages, instant messages, phone calls,
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`social media or message board posts, facsimiles, video or audio recordings, or a
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`person seeing or hearing any
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`information by any means.
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` The
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`term
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`“Communication” also includes drafts, revisions, or copies of any such
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`4
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`EFiled: Nov 18 2020 01:02PM EST
`Transaction ID 66121625
`Case No. 2020-0364-PAF
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`
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`Communication if the draft, revision, or copy is in any way different from the
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`original.
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`6.
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`“Company” or “Nutraceutical” refers to Nutraceutical International
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`Corporation and any of its partners, parents, predecessors, successors, divisions,
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`branches, subsidiaries, and affiliates; any of their respective past or present directors,
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`boards of directors, committees, officers, agents, employees, representatives,
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`attorneys; and/or any other person or entity purporting to act on behalf of the
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`foregoing.
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`7.
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`“Concerning” means relating to, referring to, describing, evidencing, or
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`constituting. Requests for Discovery Material concerning any subject matter include
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`Discovery Material constituting that subject matter.
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`8.
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`9.
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`“Discovery Materials” means Documents and/or Communications.
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`“Document” is to be interpreted in the broadest possible sense and
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`includes all Communications and all recorded, renderable, stored, or retrievable
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`writing, text, images, information, or data (including any producible metadata), on
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`or in any print or electronic media or storage format, at any Location, including,
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`without limitation: email; Microsoft Office or other spreadsheet, word processing,
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`or presentation software files; Adobe or other PDF software files; materials edited
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`on collaborative document-sharing platforms like Google Drive; text messages,
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`SMS messages, instant messages, Bloomberg messages, iMessages, Blackberry
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`5
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`messages, Skype messages, Reuters messages, Slack messages, tweets, LinkedIn
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`messages, Snapchats, Instagrams, Facebook status updates or messages, Vines,
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`Vlogs, voice messages, telephone logs and/or records, Tumblrs, WhatsApp
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`messages, Viber messages, Foursquare check-ins, or any other social media message
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`or post; any web portals used for dissemination of, for example, board materials
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`(e.g., Director’s Desk, Diligent Boards, OnBoard, BoardVantage, etc.); electronic
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`databases and any of their contents (e.g., Microsoft Access databases), including
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`data stored in tabular, structured, or unstructured format; the contents of any compact
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`discs, CD-ROMs, DVD-ROMs, portable or external hard drives, magnetic tape,
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`film, recordings, videotape, magnetic or optical disks, floppy disks, or other widely-
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`used electronic or optical data repository; any other form of structured or
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`nonstructured electronically stored information; video or audio recordings of
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`meetings or calls, including via Zoom, and any notes or minutes of the same;
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`materials created, stored, or maintained in hard copy format, including, without
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`limitation, computer, facsimile, or telecopier printouts or transmissions, handwritten
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`notes, typed documents, presentations, pitch books, or photographs; legal filings,
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`including complaints and other pleadings, affidavits, interrogatories or interrogatory
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`responses, requests for admission or request for admission responses, legal briefs,
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`legal motions, depositions, and judgments; any other producible Document or
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`Communication including memoranda, books, records, accounts, ledgers, vouchers,
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`6
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`
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`invoices, drafts, bills, charge slips, letters, telegrams, mailgrams, correspondence,
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`resolutions, work papers, reports, projects, tabulations, studies, surveys, designs,
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`drawings, schematics, maps, manuals, models, notebooks, contracts, agreements,
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`diaries, telephone records, desk calendars, appointment books, circulars, charts,
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`transcripts, news releases, trade releases, advertisements, press books, teletype
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`messages, licenses, financial statements, stenographers’ notebooks, punchcards,
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`letters of credit, stock certificates, and securities. The term “Document” also
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`includes drafts, revisions, or copies of any Document if the draft, revision, or copy
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`is in any way different from the original.
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`10.
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`“Document Request” means each of the specific document requests set
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`forth herein, individually or collectively as the context requires, along with the
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`Definitions and Instructions.
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`11.
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`“ESI” or “Electronically Stored Information” means information or
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`data that is generated, received, processed, and recorded by computers and other
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`electronic devices, and includes, without limitation, system metadata (e.g., author,
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`recipient, file creation date, file modification date) and user-generated metadata
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`(e.g., spreadsheet formulas). “ESI” further includes, without limitation, the
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`following: (i) output resulting from the use of any software program, such as word
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`processing documents, spreadsheets, database files, charts, graphs, and outlines;
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`(ii) electronic mail; (iii) message logs from Google Chat, AOL Instant Messenger,
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`7
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`Facebook, Twitter, WhatsApp, Telegram, and similar programs; (iv) audio and video
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`files; (v) internal (intranet) or external websites; and (vi) activity listings of
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`electronic mail receipts and/or transmittals. “ESI” includes electronic information
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`or data wherever it resides, including, without limitation: (i) Facebook, Instagram or
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`other social media; (ii) in an active file on a computer network, an individual
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`computer’s hard drive or in a Cloud storage facility; (iii) in a deleted file or file
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`fragment; (iv) on backup/storage media; (v) on removable media, such as a floppy
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`disk, memory stick, portable hard drive, or zip drive; and (vi) on a smart phone or
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`personal digital assistant. “ESI” also includes documents, containers and labels
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`appended to or concerning any physical storage device associated with responsive
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`electronic information or data.
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`12.
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`“HGGC” means HGGC, LLC as well as any of its affiliates, affiliated
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`funds, and subsidiaries, including but not limited to HGGC Fund III, L.P. and any
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`and all merger subsidiaries, and any of their directors, founders, owners, committees,
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`officers, agents, employees, representatives, the Immediate Family of the foregoing
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`and any other person or entity purporting to act on behalf of the foregoing.
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`13.
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`“Location” means any place where Discovery Materials are stored.
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`Locations can be physical (e.g., file cabinets); discrete electronic data stores (e.g.,
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`hard drives, thumb drives, or mobile devices); server-based (e.g., certain email
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`configurations, certain instant messaging configurations, shared drives, networked
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`8
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`drives, data rooms, and the contents of any intranet site); or cloud-based (e.g.,
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`Google Drive, Dropbox, certain email configurations, certain instant messaging
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`configurations like Bloomberg chat, text or social-media messaging applications like
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`Facebook messaging, portals for board of directors materials like Director’s Desk,
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`and collaborative chat platforms like Slack).
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`14.
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`15.
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`“Including” means including, but not limited to.
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`“Maze” refers to The Maze Group, LLC and any of its partners, parents,
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`predecessors, successors, divisions, branches, subsidiaries, and affiliates; any of
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`their respective past or present directors, boards of directors, committees, officers,
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`agents, employees, representatives, attorneys; and/or any other person or entity
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`purporting to act on behalf of the foregoing.
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`16.
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`“Merger” means HGGC’s acquisition of Nutraceutical International
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`Corporation, which closed on August 23, 2017.
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`17.
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`“Or” should be construed as disjunctive and conjunctive, and “any” and
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`“all” as used herein shall include “each” and “every.”
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`18.
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`“Person” means any natural person, corporation, association, firm,
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`partnership, government agency, organization, or other entity recognized by law,
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`and the boards of directors, committees, directors, officers, partners, agents,
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`representatives, or employees of the foregoing.
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`19.
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`“Piper Jaffray” means Piper Jaffray & Co., any of its partners, parents,
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`9
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`predecessors, successors, divisions, branches, subsidiaries, and affiliates; any of it
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`past or present directors, boards of directors, committees, officers, agents,
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`employees, representatives, and attorneys; and/or any other person or entity
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`purporting to act on behalf of the foregoing.
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`20.
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`“Private Equity Transaction” means the transaction(s) described in
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`paragraphs 19 and 119 of the Complaint.
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`21.
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`“Snapdragon” refers to Snapdragon Capital Partners and any of its
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`partners, parents, predecessors, successors, divisions, branches, subsidiaries, and
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`affiliates; any of their respective past or present directors, boards of directors,
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`committees, officers, agents, employees, representatives, attorneys; and/or any other
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`person or entity purporting to act on behalf of the foregoing.
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`22.
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`“You” or “Your” means Peter J. Solomon Company and/or PJ Solomon
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`Securities, LLC, any of its partners, parents, predecessors, successors, divisions,
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`branches, subsidiaries, and affiliates; any of it past or present directors, boards of
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`directors, committees, officers, agents, employees, representatives, and attorneys;
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`and/or any other person or entity purporting to act on behalf of the foregoing.
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`INSTRUCTIONS
`The terms “and” and “or” are to be read in both the conjunctive and
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`1.
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`disjunctive and shall serve as a request for Discovery Materials that would be
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`responsive under a conjunctive reading in addition to all Discovery Materials that
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`10
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`would be responsive to a disjunctive reading.
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`2.
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`The singular form of any word shall be deemed to include the plural
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`and vice versa.
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`3.
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`The use of a verb in any tense shall be construed as the use of the verb
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`in all other tenses.
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`4.
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`The use of the masculine gender shall include the feminine gender and
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`vice versa.
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`5.
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`6.
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`“Any” and “all” shall include “each” and “every.”
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`“Herein,” and words of similar import, shall refer to the Document
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`Requests as a whole, and not to any particular portion of the Document Requests.
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`7.
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`8.
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`“Including” means including without limitation.
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`These Document Requests call for the production of all responsive
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`Discovery Materials that are in Your possession, custody, or control, wherever
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`located, regardless of whether they are possessed directly by You, or by Your current
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`or former directors, officers, partners, members, employees, advisors, agents,
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`representatives, subsidiaries, managing agents, affiliates, attorneys, accountants,
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`auditors, investigators, or other persons acting or purporting to act on Your behalf.
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`9.
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`Your obligations pursuant to the Document Requests are not limited or
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`affected by the availability of any Document or Communication through any other
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`source. The fact that a Document or Communication is produced by another person
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`11
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`does not relieve You of Your obligation to produce Your iteration of that Document
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`or Communication, even if identical in all respects.
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`10.
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`If any portion of any Document or Communication is responsive to any
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`Document Request, the entire Document or Communication, including any
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`attachments or disclosures, must be produced.
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`11. No attached Discovery Materials should be separated from each other.
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`12. For any responsive Discovery Materials stored in electronic format,
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`including email, You will produce those Discovery Materials in searchable
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`electronic format (i.e., single-page .tiff format with corresponding OCR or full-text
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`files) through a file transfer protocol website, on CD-ROMs, DVD-ROMs, or
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`portable or external hard drives, or through some other widely used electronic or
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`optical storage media. All Microsoft Excel Documents, PowerPoint Documents,
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`video, audio, and database-type files (e.g., Microsoft Access) will be produced in
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`native format, and Plaintiff reserves the right to seek production of additional
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`Documents, Communications, or categories of Discovery Materials in native format.
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`Each native file should be named according to the Bates number it has been assigned
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`and should be linked directly to its corresponding record in the load file using the
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`NATIVELINK field. All responsive electronically stored Discovery Materials will
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`be produced with a delimited database load file that contains all available metadata
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`fields. An .opt image cross-reference file will also be provided for all .tiff images.
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`12
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`Your production of electronically stored Discovery Materials must include, at a
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`minimum, sufficient metadata to convey where items begin and end (including
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`attachments), the original file name and location, and the original timestamps and
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`attributes, including the following metadata fields: “BEGBATES,” “ENDBATES,”
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`“BEGATTACH,” “ENDATTACH,” “to,” “from,” “cc,” “bcc,” “subject,”
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`“custodian,” “date and time sent,” “date and time received,” “creation date and
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`time,” “last modified,” “location,” “file path,” and “MD5HASH.” Timestamp
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`metadata should reflect the time in the time zone of the custodian from whom the
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`Document or Communication was collected. In the event Plaintiff agrees that search
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`terms may be used to collect any portion of the Discovery Materials, You must,
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`before collecting from any Location containing Discovery Materials with renderable
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`text that may not be text-searchable (e.g., non-OCR’ed PDF files), run an OCR
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`protocol on that Location.
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`13. When converting electronically stored Discovery Material from its
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`native format into its production format: (i) all tracked changes shall be retained in
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`the manner in which they existed when the file was collected; (ii) OLE Embedded
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`files shall not be extracted as separate Documents; (iii) author comments shall be
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`retained in the manner in which they existed when the file was collected; (iv) hidden
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`columns and rows shall be retained in the manner in which they existed when the
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`file was collected; (v) presenter notes shall be retained in the manner in which they
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`13
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`existed when the file was collected; and (vi) auto-populated fields shall be replaced
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`with descriptive text for the item.
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`14. To the extent Discovery Materials in a foreign language are produced,
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`processing of such Discovery Materials shall be Unicode-compliant.
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`15. All Discovery Materials should be produced as they are maintained in
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`the ordinary course of business, including in the sequence in which they are
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`ordinarily maintained, or shall be organized and labeled to correspond to the specific
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`Document Request(s) to which they are responsive. All Discovery Materials shall
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`be produced in their entirety, including with any attachments or enclosures. All
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`electronically stored Discovery Materials shall be produced pursuant to Instructions
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`12-14 above and You should otherwise ensure that all data associated with those
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`Discovery Materials—including metadata, sequence, original file location, and
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`attached or embedded objects—are preserved and produced. All hard copy
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`Discovery Materials shall be produced in the original file folders, boxes, or other
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`containers or binders in which such items are found, including the title, labels, or
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`other description of each such folder, box, or other container, or attach a copy of the
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`Discovery Materials to copies of the file folders from which they came. The integrity
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`and internal sequence of the requested Discovery Materials within each folder shall
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`not be disturbed or commingled with the contents of another folder.
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`16.
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`If a Document or Communication is responsive to more than one
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`14
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`Document Request, You are not required to duplicate production.
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`17. Plaintiff reserves the right to view the original of any copy of any
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`Discovery Materials produced in response to these Document Requests.
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`18. You shall produce all Discovery Materials that cannot be legibly copied
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`in their original form.
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`19.
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`If any objection is made to any of these Document Requests, the
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`response shall state with specificity the grounds for the objection, whether any
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`Document or Communication is being withheld from inspection and production on
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`the basis for such objection, or whether inspection or production of the responsive
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`items will occur notwithstanding such objection. If You object to any Document
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`Request on grounds of overbreadth or similar bases, You are instructed to respond
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`to the Document Request as narrowed. For the avoidance of doubt, You must make
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`clear the extent to which You have narrowed Your response to any Document
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`Request and inform Plaintiff as to whether any requested Discovery Materials are
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`being withheld because of that narrowing. Plaintiff does not consent to any such
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`narrowing and will meet and confer so You can articulate Your position if necessary.
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`20.
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`If You claim any form of privilege, immunity, or any other objection,
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`whether based on statute, common law, or otherwise, as a ground for not producing
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`any requested Discovery Materials, furnish a list at the time that Discovery Materials
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`are produced identifying each Document or Communication for which the privilege,
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`15
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`
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`immunity, or other objection is claimed, together with the following information: a
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`description of the type of Document or Communication (e.g., email, letter,
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`agreement, memorandum, etc.); date; sender; recipient(s); person(s) to whom the
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`Document or Communication (or copies thereof) was provided (including their job
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`titles and professional affiliation); author(s), including each Person who prepared or
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`participated in the preparation of the Document or Communication (including their
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`job titles and professional affiliation); subject matter; basis upon which a privilege,
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`immunity, or other objection is claimed (including, as applicable, the identity of the
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`lawyer(s) or law firm(s) purportedly providing or being asked to provide legal
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`advice); and the Document Request(s) to which such Document or Communication
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`is responsive.
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`21.
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`If You claim privilege, immunity, or any other objection regarding only
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`part of a Document or Communication, produce the part to which there is no claim
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`of privilege, immunity, or objection, and furnish a list identifying each item that is
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`partially withheld together with the information listed in Instruction 20.
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`22.
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`If You cannot satisfy any Document Request, either in full or in part,
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`You shall produce Discovery Materials to the extent possible, specifying the reason
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`for Your inability to produce further Discovery Materials.
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`23.
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`If there are no Discovery Materials responsive to any particular
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`Document Request or subpart thereof, You shall state so in writing.
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`16
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`24.
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`If any Discovery Material requested herein was lost, discarded,
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`destroyed, deleted, or otherwise is no longer in Your possession, custody, or control,
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`state and specify in detail for each such Document or Communication: a description
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`of the type of Document or Communication (e.g., email, letter, agreement,
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`memorandum, etc.); date; sender; recipient(s); person(s) to whom the Document or
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`Communication (or copies thereof) was provided (including their job titles and
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`professional affiliations); the information contained therein; the date upon which it
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`ceased to be in Your possession, custody, or control; the manner of disposal; the
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`reasons for disposal; the person authorizing the disposal; the person effectuating the
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`disposal; the Document Request(s) to which such Document or Communication is
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`responsive; and the identity of all persons having knowledge of the contents, or
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`circumstances around the disposition, thereof.
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`25. When instructed to produce Discovery Materials “sufficient to show”
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`or “sufficient to identify,” You must produce all materials that are necessary and
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`sufficient to provide all the information requested. If no single Document or
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`Communication contains all the information sought, produce a group of Discovery
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`Materials that, together, contain and reveal the information sought. If tabulations,
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`compilations, statistical accumulations, charts, reports, or other generated or
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`summary material is necessary to provide the information requested, these should be
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`furnished in addition to any responsive underlying Discovery Materials, and You
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`17
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`
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`should be prepared to discuss the methodology for preparing the foregoing.
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`26. Discovery Materials not otherwise responsive to these Document
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`Requests should be produced if such materials mention, discuss, refer to, or explain
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`the Discovery Materials that are called for by these Document Requests, or if such
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`materials are attached to, enclosed with, or embedded in Discovery Materials that
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`are responsive to these Document Requests.
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`27. These Document Requests are continuing in nature and must be
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`supplemented as necessary up until the date of the conclusion of this Action and any
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`appeals. If, after producing materials in response hereto, You become aware of
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`additional responsive Discovery Materials, notice thereof should be provided to
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`Plaintiff immediately and such Discovery Materials should be produced promptly
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`thereafter.
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`28. Where a Document Request calls for the production of minutes
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`(including draft minutes) from any meeting of Your Board or any Committee of
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`Your Board, the production or logging of such minutes pursuant to Instruction 20
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`shall be supplemented by the following information with respect to each Document:
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`a.
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`b.
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`c.
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`the date and time of its initial creation;
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`the date and time of any revision thereto; and
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`the persons involved in the creation of or any revision thereto.
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`18
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`RELEVANT TIME PERIOD
`Unless otherwise indicated, the relevant time period for each request is
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`January 1, 2016 through the present. If a document prepared before this period is
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`necessary for a correct or complete understanding of any document covered by a
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`request, You must produce the earlier document as well. If any document is updated
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`and the date of its preparation cannot be determined, the document shall be produced
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`if otherwise responsive to the production request.
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`REQUESTS FOR PRODUCTION
`All Discovery Materials produced in any litigation relating to the
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`1.
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`Merger including, but not limited to, the Appraisal Action, together with, among
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`other things: (a) unredacted versions of all filings with or submissions to the
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`respective court; (b) letters, opinions, orders or other materials received from the
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`respective court; (c) communications with any counsel, party or insurer involved in
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`the matter;
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`(d) discovery
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`responses and
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`interrogatories,
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`including all
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`Communications produced by any party or
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`third party,
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`including all
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`Communications produced by You or to You; (e) deposition transcripts, deposition
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`videos and deposition exhibits; and (f) all discovery agreements, protocols, plans,
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`search terms, custodians with the parties and any third parties including all
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`correspondence reference such.
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`2.
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`All Discovery Materials concerning Your policies regarding the
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`19
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`retention or destruction of documents, including any litigation hold memoranda
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`issued in connection with any litigation arising out of and/or related to the Merger
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`and/or the Private Equity Transaction.
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`3.
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`All Discovery Materials concerning the Merger, Merger agreement
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`and/or the Private Equity Transaction including their negotiation, drafting and
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`determination.
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`4.
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`All Discovery Materials concerning employment agreements,
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`executive compensation, retention agreements, change-of-control payments, stock
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`options or incentive awards for Nutraceutical’s directors, officers and executives,
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`related to the Merger or any alternative transaction.
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`5.
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`All Discovery Materials concerning any meetings of the Board,
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`including agendas, minutes, notes, summaries, resolutions, materials provided at or
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`in conjunction with such meetings, and all notes (whether handwritten or otherwise)
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`from such meetings.
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`6.
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`All Discovery Materials concerning the business plans, strategic plans,
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`budgets, projections or planning documents for the Company.
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`7.
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`All Discovery Materials concerning analyses, evaluations, discussions
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`or communications comparing the Company to any of its competitors including, but
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`not limited to, EBITDA multiples, any benchmarking, competitive or financial
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`analyses.
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`20
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`8.
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`All Discovery Materials with any Advisor concerning the Merger, any
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`alternative transaction, and/or the Private Equity Transaction.
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`9.
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`All Discovery Materials concerning the market price of stock of
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`Nutraceutical prior to the announcement of the Merger and during the period
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`following the announcement of the Merger.
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`10. All Discovery Materials concerning any fairness opinion rendered with
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`respect to the Merger or Private Equity Transaction, including any drafts thereof and
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`any analysis used, created, or considered in connection with such opinion.
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`11. All Discovery Materials concerning or contained in any data room
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`established to facilitate due diligence in connection the Merger or the Private Equity
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`Transaction, and all Discovery Materials concerning the foregoing.
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`12. All Discovery Materials concerning any analyses, appraisals,
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`calculations discussions or evaluations of the Company, the Company’s securities,
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`the Company’s assets, the markets in which Company competes, or the price
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`someone might pay to acquire some or all of Company or its securities, whether
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`prepared by You or a third party, including:
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`a. analysis of cash flows, earnings, EBITDA, revenue, operating
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`income, growth rates, cost of equity, cost of debt, working capital
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`expenditures, comparable companies, and/or comparable
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`company transactions,
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`21
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`b. any financial analysis, including any discounted cash flow
`
`analysis,
`
`comparable
`
`companies
`
`analysis,
`
`comparable
`
`transactions analysis, or other valuation analysis,
`
`c. analysis of the Company as a standalone entity, and
`
`d. analysis of pro forma equity ownership.
`
`13. All Discovery Materials concerning the Company’s post-Merger
`
`performance including, but not limited to, all Discovery Materials concerning the
`
`Company’s post-Merger cash flows, earnings, EBITDA, revenue, and/or operating
`
`income.
`
`14. All Discovery Materials concerning any efforts by You or any Advisors
`
`to solicit an alternative transaction.
`
`15. All Discovery Materials concerning Your engagement as
`
`the
`
`Company’s financial advisor in connection with the Merger, the Private Equity
`
`Transaction or any Alternative Transactions.
`
`16. All Discovery Materials concerning budgets, forecasts, and/or financial
`
`projections concerning the Company.
`
`17. All Discovery Materials concerning any calculation, analysis, or
`
`estimate of the Company’s valuation, cost of capital, cost of debt, cost of equity,
`
`future growth rate, and/or comparable companies analyses.
`
`18. Discovery Materials sufficient to determine any compensation that You
`
`
`
`22
`
`
`
`expect to or have received in connection to the Merger and/or the Private Equity
`
`Transaction.
`
`19. Discovery Materials sufficient to identify any past or current
`
`engagement of You by the Company or HGGC within five years prior to the date of
`
`the Merger agreement, including documents sufficient to determine the terms of any
`
`such agreement any anticipated or actual compensation received in connection
`
`therewith.
`
`20. To the extent not otherwise provided in response to these Requests, all
`
`Discovery Materials concerning any precedent transaction, discounted stock price,
`
`historical stock trading, publicly traded companies, or discounted cash flow analyses
`
`conducted in connection with any estimate of the value of the Company.
`
`21. Discovery Materials sufficient to identify all of Your former or current
`
`employees who worked on the Merger and/or Private Equity Transaction, including
`
`Your former or current employees who analyzed, evaluated, recommended or
`
`reviewed the Merger, Alternative Transaction, and/or Private Equity Transaction.
`
`22. All Discovery Materials related to Nutraceutical’s, Your, Piper
`
`Jaffray’s, any Advisor’s, Maze’s or SnapDragon’s valuation of Nutraceutical
`
`including, but not limited to, in connection the Private Equity Transaction.
`
`
`
`23
`
`
`
`SCHEDULE B
`
`TOPICS FOR EXAMINATION
`
`The definitions set forth above in Schedule A are hereby incorporated as if
`
`fully set forth herein.
`
`1.
`
`2.
`
`The topics that are the subject of the Requests in Schedule A.
`
`The Documents and Communications produced in response to this
`
`Subpoena.
`
`
`
`
`
`24
`
`
`
`(c)
`
`Rule 45. SUBPOENA
`Protection of persons subject to subpoenas.
`(1) A party or an attorney responsible for the issuance and service of a
`subpoena shall take reasonable steps to avoid imposing undue burden or
`expense on a person subject to that subpoena. The court on behalf of which
`the subpoena was issued shall enforce this duty and may impose upon the
`party or attorney in breach of this duty an appropriate sanction, which may
`include, but is not limited to, lost earnings and a reasonable attorney's fee.
`(2)
`
`(A) A person commanded to produce and permit inspection and
`copying of designated documents, electronically stored information, or
`tangible things or inspection of premises need not appear in person at
`the place of production or inspection unless commanded to appear for
`deposition, hearing or trial.
`(B) Subject to paragraph (d)(2) of this rule, a person commanded to
`produce and permit inspection and copying may, within 14 days after
`service of the subpoena or before the time specified for compliance if
`such time is less than 14 days after service, serve upon the party or
`attorney designated in the subpoena written objection to inspection or
`copying of any or all of the designated materials or of the premises. If
`objection is made, the party serving the subpoena shall not be entitled
`to inspect and copy the materials or inspect the premises except
`pursuant to an order of the court by which the subpoena was issued. If
`objection has been made, the party serving the subpoena may, upon
`notice to the person commanded to produce, move at any time for an
`order to compel production. Such an order to compel production shall
`protect any person who is not a party or an officer of a party from
`significant expense resulting from the inspection and copying
`commanded.
`
`(A) On timely motion, the court on behalf of which the subpoena was
`issued shall quash or modify the subpoena if it
`(i)
`fails to allow reasonable time for compliance;
`
`25
`
`(3)
`
`
`
`
`
`(B)
`
`(ii)
`requires disclosure of privileged or other protected matter
`and no exception or waiver applies; or
`(iii)
`subjects a person to undue burden.
`If a subpoena
`(i)
`requires disclosure of a trade secret or other confidential
`research, development, or commercial information, or
`(ii)
`requires disclosure of an unretained expert's opinion or
`information not describing specific events or occurrences in
`dispute and resulting from the expert's study made not at the
`request of any party, the court on behalf of which the subpoena
`was issued may, to protect a person subject to or affected by the
`subpoena, quash or modify the subpoena or, if the party in whose
`behalf the subpoena is issued shows a substantial need for the
`testimony o
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