EFiled: Oct 14 2020 05:01PMEQT>
`Transaction ID 66021773={//4.°)*)
`
`Case No. 2020-0704-MTZ UZsOFDAS
`
`
`
`EXHIBIT 1
`EXHIBIT 1
`
`EFiled: Oct 14 2020 05:01PM EDT
`Transaction ID 66021773
`Case No. 2020-0704-MTZ
`
`

`

`NOTE: A BLANK PAGE 2 MUST ALSO BE TUR
`I
`■ IN THE COURT OF COMI^
`
`114754775
`
`j - 'A SUBPOENA CIVIL RULE 45
`
`114754775
`
`J
`
`THE STATE OF OHIO
`
`Cuyahoga County
`
`Spencer L. Murfey, III and
`
`ZOZO OCT JU A IO OP<
`Cynthia H. Murfey
`**^18
`
`Judge: CASSANDRA COLLIER-WILLIAMS
`
`Plaintiff/RfiRt^Q^r COURTS
`
`i
`
`___ ____ _____ ______
`
`vs.
`
`CUYAHOGA COUNTY '
`
`CV 20 938905
`
`
`
`WHC Ventures, LLC, et al.
`
`Defendant/Respondent
`
`" Judge
`
`To
`
`Coming Advisors, Inc.__________________________________
`
`c/o Barbara Lattner____________________________________
`
`629 Euclid Ave., Suite 720___________
`
`Cleveland, OH 44114
`
`YOU ARE COMMANDED to appear in the Court of Common Pleas to testify as witness on behalf of the
`Courthouse Square
`Justice Center-Court Tower
`Cuyahoga County Courthouse
`(PLAINTIFF/DEFENDANT) in the above entitled case and not depart the Court without leave. Fail not under penalty
`1200 Ontario Street
`310 W. Lakeside Avenue
`of the law. Your appearance is required on the
`
`of
`Cleveland, Ohio 44113
`Cleveland, Ohio 44113
`of the:
`No.
`
`One Lakeside Avenue
`.M. in Courtroom
`_o'clock
`Cleveland, Ohio 44113
`
`at
`
`YOU ARE COMMANDED to appear at the place, date and time specified below to testify at the taking of deposition
`
`in the above case.
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`600 Superior Avenue East, Fifth Third Building, Suite 1300, Cleveland, OH 44114______ 11/10/2020___ 9:30 a.m.
`
`PLACE OF DEPOSITION
`
`DATE
`
`TIME
`
`YOU ARE COMMANDED to produce and permit inspection, copying, testing or sampling of the following
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`documents or objects at the place, date and time specified below (list documents or objects):
`
`See Exhibit A.
`
`600 Superior Avenue East, Fifth Third Building, Suite 1300, Cleveland, OH 44114
`
`10/27/2020
`
`9:30 a.m.'
`
`PLACE
`
`DATE
`
`TIME
`
`|
`
`| YOU ARE COMMANDED to permit inspection of the following premises at the date and time specified below.
`
`PREMISES
`
`DATE
`
`TIME
`
`To insure taxation of their fees, witnesses must report each attendance to the Clerk of Court of Common Pleas on the first floor of the Justice
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`Center-Courts Tower.
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`Section 2335.06 of the Ohio Revised Code provides that witnesses are entitled to receive $12.00 for each full day's attendance and $6.00 for
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`each halfday's attendance, plus ten cents per mile traveled to and from his place of residence outside of the City of Cleveland proper. Such fees
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`are taxed as costs.
`
`Carl D. Neff
`
`FisherBroyles, LLP, 1521 Concord Pike, Suite 301, Wilmington, DE 19803
`
`ATTORNEY NAME
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`ADDRESS
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`SIGNATURE
`
`REPRESENTING
`
`DATE
`
`Plaintiffs Spencer L. Murfey, III and Cynthia H. Murfey
`
`10/8/2020
`
`By:
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`Cuyahoga County, Clerk of Courts
`
`Clerk
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`

`

`THE STATE OF OHIO
`
`Cuyahoga County
`
`ss.
`
`Affidavit of Service of Subpoena by Sheriff or Officer, Attorney or Private Person
`
`On the
`
`day of
`
`I served this Subpoena on the within named:
`
`, 20
`
`.
`
`as follows:
`
`Service on
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`$
`
`By
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`SHERIFF'S FEES
`
`Copy
`
`Miles Travel
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`Subscribed and sworn to before me, a
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`Return
`
`
`
`$
`
`This
`
`day of
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`, 20
`
`Deputy Sheriff/Attorney
`
`Witness entitled to
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`miles
`
`RULE 45. RULES OF CIVIL PROCEDURE, PARTS C & D
`
`(C) Protection of persons subject to subpoenas. (1) A party or an attorney responsible
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`(D) Duties in responding to subpoena. (1) A person responding to a subpoena to
`
`for the issuance and service of a subpoena shall take reasonable steps to avoid
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`produce documents shall, at the person's option, produce them as they are kept in
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`imposing undue burden or expense on a person subject to that subpoena. (2)(a) A
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`the usual course of business or organized and labeled to correspond with the
`
`person commanded to produce under divisions (A)(1)(b), (iii), (iv), (v), or (vi) of this
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`categories in the subpoena. A person producing documents or electronically stored
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`rule need not appear in person at the place of production or inspection unless
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`information pursuant to a subpoena for them shall permit their inspection and
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`commanded to attend and give testimony at a deposition, hearing, or trial, (b) Subject
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`copying by all parties present at the time and place set in the subpoena for inspection
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`to division
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`and copying. (2) If a request does not specify the form or forms for producing
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`(D) (2) of this rule, a person commanded to produce under divisions (A)(1)(b), (iii),
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`electronically stored information, a person responding to a subpoena may produce
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`(iv), (v), or (vi) of this rule may, within fourteen days after service of the subpoena or
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`the information in a form or forms in which the information is ordinarily maintained if
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`before the time specified for compliance if such time is less than fourteen days after
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`that form is reasonably useable, or in any form that is reasonably useable. Unless
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`service, serve upon the party or attorney designated in the subpoena written
`
`ordered by the court or agreed to by the person subpoenaed, a person responding to
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`objections to production. If objection is made, the party serving the subpoena shall
`
`a subpoena need not produce the same electronically stored information in more
`
`not be entitled to production except pursuant to an order of the court by which the
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`than one form. (3) A person need not provide discovery of electronically stored
`
`subpoena was issued. If objection has been made, the party serving the subpoena,
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`information when the production imposes undue burden or expense. On motion to
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`upon notice to the person commanded to produce, may move at any time for an order
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`compel discovery or for a protective order, the person from whom electronically
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`to compel the production. An order to compel production shall protect any person
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`stored information is sought must show that the information is not reasonably
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`who is not a party or an officer of a party from significant expense resulting from the
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`accessible because of undue burden or expense. If a showing of undue burden or
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`production commanded. (3) On timely motion, the court from which the subpoena
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`expense is made, the court may nonetheless order production of electronically stored
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`was issued shall quash or modify the subpoena, or order appearance or production
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`information if the requesting party shows good cause. The court shall consider the
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`only under specified conditions, if the subpoena does any of the following: (a) Fails to
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`factors in Civ. R. 26(B)(4) when determining if good cause exists. In ordering
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`allow reasonable time to comply; (b) Requires disclosure of privileged or otherwise
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`production of electronically stored information, the court may specify the format,
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`protected matter and no exception or waiver applies; (c) Requires disclosure of a fact
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`extent, timing, allocation of expenses and other conditions for the discovery of the
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`known or opinion held by an expert not retained or specially employed by any party in
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`electronically stored information. (4) When information subject to a subpoena is
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`anticipation of litigation or preparation for trial as described by Civ.R. 26(B)(5), if the
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`withheld on a claim that it is privileged or subject to protection as trial preparation
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`fact or opinion does not describe specific events or occurrences in dispute and results
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`materials, the claim shall be made expressly and shall be supported by a description of
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`from study by that expert that was not made at the request of any party; (d) Subjects
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`the nature of the documents, communications, or things not produced that is
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`a person to undue burden.
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`sufficient to enable the demanding party to contest the claim. (5) If information is
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`(4) Before filing a motion pursuant to division (C)(3)(d) of this rule, a person resisting
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`produced in response to a subpoena that is subject to a claim of privilege or of
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`discovery under this rule shall attempt to resolve any claim of undue burden through
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`protection as trial-preparation material, the person making the claim may notify any
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`discussions with the issuing attorney. A motion filed pursuant to division (C)(3)(d) of
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`party that received the information of the claim and the basis for it. After being
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`this rule shall be supported by an affidavit of the subpoenaed person or a certificate of
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`notified, a receiving party must promptly return, sequester, or destroy the specified
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`that person's attorney of the efforts made to resolve any claim of undue burden. (5) If
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`information and any copies within the party's possession, custody or control. A party
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`a motion is made under division (C)(3)(c) or (C)(3)(d) of this rule, the court shall quash
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`may not use or disclose the information until the claim is resolved. A receiving party
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`or modify the subpoena unless the party in whose behalf the subpoena is issued
`
`may promptly present the information to the court under seal for a determination of
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`shows
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`the claim of privilege or of protection as trial-preparation material. If the receiving
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`a substantial need for the testimony or material that cannot be otherwise met without
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`party disclosed the information before being notified, it must take reasonable steps to
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`undue hardship and assures that the person to whom the subpoena is addressed will
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`retrieve it. The person who produced the information must preserve the information
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`be reasonably compensated.
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`until the claim is resolved.
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`Revised As Of 10/2018
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`

`

`IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE
`
`SPENCER L. MURFEY, III as Co­
`
`Trustee for the Trust for the Benefit of
`
`) C.A. No. 2020-0704-MTZ
`
`) ) ) ) ) ) ) ) ) )
`
`Spencer L. Murfey, III, under the
`
`Power of Appointment Trust of
`
`Spencer L. Murfey, Jr., u/a/d August 1,
`
`2002 and CYNTHIA H. MURFEY as
`
`Co-Trustee for the Trust for the Benefit
`
`of Cynthia H. Murfey, under the Power
`
`of Appointment Trust of Spencer L.
`
`Murfey, Jr., u/a/d August 1, 2002,
`
`Plaintiffs,
`
`v.
`
`WHC VENTURES, LLC, a Delaware
`
`limited liability company, WHC
`
`VENTURE 2009-1, L.P., a Delaware
`
`limited partnership, WHC VENTURES
`
`2013, L.P., a Delaware limited
`
`partnership, and WHC VENTURES
`
`2016, L.P., a Delaware limited
`
`partnership,
`
`Defendants.
`
`SUBPOENA DUCES TECUM AND AD TESTIFICANDUM
`
`DIRECTED TO CORNING ADVISORS, INC.
`
`TO: Coming Advisors, Inc.
`
`c/o Barbara Lattner
`
`629 Euclid Ave., Suite 720
`
`Cleveland, OH 44114
`
`

`

`YOU ARE HEREBY COMMANDED, pursuant to Delaware Court of
`
`Chancery Rule 45, to produce to the undersigned counsel, no later than October 27,
`
`2020, and permit inspection and copying of documents designated in Exhibit A.
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`YOU ARE HEREBY FURTHER COMMANDED to appear and attend, at
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`the offices of FisherBroyles, LLP, 600 Superior Avenue East, Fifth Third Building,
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`Suite 1300, Cleveland, OH 44114, on November 10, 2020, at 9:30 a.m., or at such
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`other time and place as shall be mutually agreed upon, to give oral testimony in
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`connection with the above-captioned action, on the deposition topics identified in
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`Exhibit A. The deposition will be taken before a notary public or other person
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`authorized to administer oaths in the State of Ohio, will be recorded by stenographic
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`means and/or videotape, and will continue from day to day until complete. The
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`undersigned counsel requests at least ten (10) business days prior to the deposition,
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`Coming Advisors, Inc. identify the person(s) designated to testify on behalf of
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`Coming Advisors, Inc. and the matters about which each person will testify.
`
`Dated: October 8, 2020
`
`FisherBroyles, LLP
`
`/s/ Carl D. Neff__________
`
`Carl D. Neff (No. 4895)
`
`Brandywine Plaza West
`
`1521 Concord Pike, Suite 301
`
`Wilmington, Delaware 19803
`
`Telephone: (302) 482-4244
`
`Counsel for Plaintiffs
`
`2
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`

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`Delaware Court of Chancery Court Rule 45(c) & (d)
`
`(c) 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
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`an appropriate sanction, which may include, but is not limited to, lost earnings and
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`a reasonable attorney’s fee.
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`(2) (A) A person commanded to produce and permit inspection and copying of
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`designated documents, electronically stored information, or tangible things or
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`inspection of premises need not appear in person at the place of production or
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`inspection unless commanded to appear for deposition, hearing or trial.
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`(B) Subject to paragraph (d)(2) of this rule, a person commanded to produce and
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`permit inspection and copying may, within 14 days after service of the subpoena or
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`before the time specified for compliance if such time is less than 14 days after
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`service, serve upon the party or attorney designated in the subpoena written
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`objection to inspection or copying of any or all of the designated materials or of the
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`premises. If objection is made, the party serving the subpoena shall not be entitled
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`to inspect and copy the materials or inspect the premises except pursuant to an order
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`of the court by which the subpoena was issued. If objection has been made, the party
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`serving the subpoena may, upon notice to the person commanded to produce, move
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`at any time for an order to compel production. Such an order to compel production
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`shall protect any person who is not a party or an officer of a party from significant
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`expense resulting from the inspection and copying commanded.
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`(3 )(A) On timely motion, the court on behalf of which the subpoena was issued shall
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`quash or modify the subpoena if it
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`(i) fails to allow reasonable time for compliance;
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`(ii) requires disclosure of privileged or other protected matter and no exception or
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`waiver applies; or
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`(iii) subjects a person to undue burden.
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`3
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`

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`(B) If a subpoena
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`(i) requires disclosure of a trade secret or other confidential research, development,
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`or commercial information, or
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`(ii) requires disclosure of an unretained expert’s opinion or information not
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`describing specific events or occurrences in dispute and resulting from the expert’s
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`study made not at the request of any party, the court on behalf of which the subpoena
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`was issued may, to protect a person subject to or affected by the subpoena, quash or
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`modify the subpoena or, if the party in whose behalf the subpoena is issued shows a
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`substantial need for the testimony or material that cannot be otherwise met without
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`undue hardship and assures that the person to whom the subpoena is addressed will
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`be reasonably compensated, the Court may order appearance or production only
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`upon specified conditions.
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`(d) Duty in responding to subpoena.
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`(1) If a subpoena does not specify a form for producing documents or electronically
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`stored information, the person responding shall produce it in a form or forms in
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`which it is ordinarily maintained, or in which it is reasonably usable. Absent a
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`showing of good cause, the person responding need not produce the same documents
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`or electronically stored information in more than one form. The person responding
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`need not provide discovery of documents or electronically stored information from
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`sources that the person identifies as not reasonably accessible because of undue
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`burden or cost. On a motion to compel discovery or for a protective order, the person
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`responding to a subpoena must show that the information is not reasonably
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`accessible because of undue burden or cost. If that showing is made, the Court
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`nevertheless may order discovery from such sources if the requesting party shows
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`good cause. The Court may specify the conditions for the discovery.
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`(2) When information subject to a subpoena is withheld on a claim that it is
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`privileged or subject to protection as trial preparation materials, the claim shall be
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`made expressly and shall be supported by a description of the nature of the
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`documents, electronically stored information, or tangible things not produced that is
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`sufficient to enable the demanding party to contest the claim.
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`4
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`

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`IDENTIFICATION OF COUNSEL IN THE PROCEEDING
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`TO WHICH THE SUBPOENA RELATES
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`Counsel for Defendants WHC Ventures, LLC, WHC Venture 2009-1, L.P., WHC
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`Ventures 2013, L.P., and WHC Ventures 2016, L.P.
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`Raymond J. DiCamillo
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`John M. O’Toole
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`Richards, Layton & Finger, P.A.
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`920 North King Street
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`Wilmington, Delaware 19801
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`Tel: (302) 651-7700
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`Email: dicamillo@rlf.com
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`Email: otoole@rlf.com
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`John J. Tumilty
`
`Morse, Barnes-Brown & Pendleton, PC
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`CityPoint
`
`480 Totten Pond Road, 4th Floor
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`Waltham, MA 02451
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`Tel: (781)697-2214
`
`Email: jtumilty@morse.law
`
`5
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`

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`Exhibit A
`Exhibit A
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`
`
`
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`

`

`In responding to this Subpoena, the following definitions apply:
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`EXHIBIT “A”
`
`DEFINITIONS
`
`1.
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`References to any person or entity shall include the person or entity and
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`his, her, or its present and former corporate parents, predecessors in interest,
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`successors in interest, shareholders, divisions, departments, subsidiaries, branches,
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`affiliates, and its present and former officers, directors, executives, employees,
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`partners, agents, principals, attorneys, trustees, representatives, and other persons
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`acting or purporting to act on his, her, or its behalf.
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`2.
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`The terms “You” or “Your” or “Coming Advisors” shall mean Coming
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`Advisors, Inc., together with its predecessors, successors, parents, subsidiaries,
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`affiliates, directors, officers, partners, employees, agents and any other person that
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`or who is acting or has ever acted for or on its behalf (including attorneys), or any
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`person on whose behalf it acted.
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`3.
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`The term “Plaintiffs” means Spencer L. Murfey, III and Cynthia H.
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`Murfey, as Co-Trustees of their respective POA Trusts.
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`4.
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`The term “General Partner” refers to Defendant WHC Ventures, LLC,
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`including without limitation all of its agents, employees, members, former
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`employees, former members, parents, affiliates, subsidiaries, attorneys, or other
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`persons or entities acting on its behalf.
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`

`

`5.
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`The term “WHC Partnerships” refers to Defendants WHC Venture
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`2009-1, L.P., WHC Ventures 2013, L.P., and WHC Ventures 2016, L.P., including
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`without limitation all of their agents, employees, members, former employees,
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`former members, parents, affiliates, subsidiaries, attorneys, or other persons or
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`entities acting on their behalf.
`
`6.
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`The term “Limited Partner” refers to any limited partner of any
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`Partnership, including without limitation all of their agents, employees, members,
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`former employees, former members, parents, affiliates, subsidiaries, attorneys, or
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`other persons or entities acting on their behalf.
`
`7.
`
`The term “Greylock” refers to Greylock Partners, and all of its agents,
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`employees, members, former employees, former members, parents, affiliates,
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`subsidiaries, attorneys, or other persons or entities acting on its behalf.
`
`8.
`
`The term “Spencer POA Trust” refers to the Trust for the Benefit of
`
`Spencer L. Murfey, III, under the Power of Appointment Trust of Spencer L.
`
`Murfey, Jr. u/a/d August 1, 2002.
`
`9.
`
`The term “Cynthia POA Trust” refers to the Trust for the Benefit of
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`Cynthia H. Murfey, under the Power of Appointment Trust of Spencer L. Murfey,
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`Jr. u/a/d August 1, 2002.
`
`10.
`
`The “Books and Records Action” refers to the action before the
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`Delaware Court of Chancery, styled as Murfey, et al. v. WHC Ventures, LLC, et al..
`
`2
`
`

`

`C.A. No. 2018-0652-MTZ, including the appeal thereof.
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`11.
`
`The “Contempt Action” refers to the action pending before the
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`Delaware Court of Chancery, styled as Murfey, et al. v. WHC Ventures, LLC, et al.,
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`C.A. No. 2020-0704-MTZ.
`
`12.
`
`The term “Complaint” refers to the Verified Complaint for Contempt,
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`Declaratory Judgment, Breach of Fiduciary Duties and Injunctive Relief, which was
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`filed in the Contempt Action. A true and correct copy of the Complaint, and all
`
`exhibits thereto, is attached hereto as Exhibit 1.
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`13.
`
`The “Counterclaim” refers to the Verified Counterclaims filed by
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`Defendants in the Contempt Action. A true and correct copy of Defendants’ Answer
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`to Verified Complaint and Verified Counterclaims, and all exhibits thereto, is
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`attached hereto as Exhibit 2.
`
`14.
`
`The term “KeyBank” refers to KeyBank National Association, and all
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`of its agents, employees, members, former employees, former members, parents,
`
`affiliates, subsidiaries, attorneys, or other persons or entities acting on its behalf.
`
`15.
`
`The term “WHC 2013 Capital Call” refers to the email dated June 24,
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`2020, which is attached to the Complaint as Exhibit “D”.
`
`16.
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`The term “Notice of Default” refers to the Notice of Default, which is
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`attached to the Complaint as Exhibit “J”.
`
`17.
`
`The term “Trusts” refers to the Spencer POA Trust and the Cynthia
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`3
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`

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`POA Trust, together.
`
`18.
`
`The term “M-C Entities” refers to M-C Partners I Limited Partnership,
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`M-C Limited Liability Company I, and M-C Investments Limited Liability
`
`Company II, including without limitation all of their agents, employees, members,
`
`former employees, former members, parents, affiliates, subsidiaries, attorneys, or
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`other persons or entities acting on their behalf.
`
`19.
`
`The term “Family Investment Vehicle” means any partnership, limited
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`liability company, corporation, or other entity that is majority owned or controlled
`
`by members of the Coming and/or Murfey family or their respective trusts,
`
`including, but not limited to, the WHC Partnerships and the M-C Entities, along with
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`any entities in which the Trusts do not hold an interest.
`
`20.
`
`The term “2004 Agreement” refers to the document titled “Agreement
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`Re Transfer of Shares”, which was entered into between Louise Murfey, Edith W.
`
`Coming, II, and William W. Murfey. A true and correct copy of the 2004 Agreement
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`is attached hereto as Exhibit 3.
`
`21.
`
`The term “Person” or “Persons” shall mean natural persons,
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`proprietorships, corporations, partnerships, trusts, joint ventures, groups,
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`associations, organizations, and all other entities.
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`22.
`
`The term “Entity” shall mean any person or business.
`
`23.
`
`The term “Concerning” shall mean constituting, describing, reflecting,
`
`4
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`

`

`consisting of, referring to, mentioning, relating to or being in any other way
`
`connected with or involving in the matters set forth herein.
`
`24.
`
`The term “Communication(s)” shall mean the transmittal of
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`information (in the form of facts, ideas, inquiries or otherwise) from one person to
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`another person, whether orally, in writing, electronically, or by any other means or
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`medium, and includes any document(s) made only for the purpose of recording a
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`communication, a fact, an idea, a statement, an inquiry, an opinion, a belief, or
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`otherwise.
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`25.
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`The term “Correspondence” shall mean all written communication(s)
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`in any form and by any means.
`
`26.
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`The term “Document(s)” includes, without limitation, all originals,
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`copies (if the originals are not available), non-identical copies (whether different
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`from the original because of underlining, editing marks, notes made on or attached
`
`to such copy, or otherwise) and drafts of the following items, whether printed or
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`recorded (through a sound, optical, video or other electronic, magnetic or digital
`
`recording system) or reproduced by hand: letters, correspondence, telegrams,
`
`telexes, facsimile transmissions, memoranda, records, summaries of personal
`
`conversations or interviews, minutes or records or notes of meetings or conferences,
`
`note pads, notebooks, postcards, “Post-It” notes, stenographic notes, notes,
`
`notebooks, opinions or reports of financial advisors or consultants, opinions or
`
`5
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`

`

`reports of experts, projections, financial or statistical statements or compilations,
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`contracts, agreements, appraisals, analyses, purchase orders, confirmations,
`
`publications, articles, books, pamphlets, circulars, microfilm, microfiche, reports,
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`studies, logs, surveys, diaries, calendars, appointment books, maps, charts, graphs,
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`bulletins, photostats, speeches, data sheets, pictures, photographs, illustrations,
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`blueprints, films, drawings, plans, tape recordings, videotapes, disks, diskettes, data
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`tapes or readable computer-produced interpretations or transcriptions thereof,
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`electronically or optically transmitted messages (“E-mail”), voice mail messages,
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`interoffice communications, advertising, packaging and promotional materials and
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`any other writings, papers and tangible things of whatever description; and including
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`but not limited to any information contained in any computer, even if not yet printed
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`out, within the possession, custody or control of Coming Advisors. These terms are
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`to be interpreted broadly to include documents stored in any medium and specifically
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`include electronically stored information (“ESI”)1 such as e-mail and documents
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`maintained in electronic form on Coming Advisor’s website(s) (if any), servers,
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`1 ESI includes, but is not limited to, all text files (including word processing
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`documents), spreadsheets, e-mail files and information concerning e-mail (including
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`all metadata fields, logs of e-mail history and usage, header information and deleted
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`files including all potentially relevant data contained in free or slack space), Internet
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`history files and preferences, graphical image format (“GIF”), tagged image file
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`format (“TIFF”), portable document format (“PDF”), files, databases, contacts,
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`tasks, calendar and scheduling information, computer system activity logs, all file
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`fragments, and backup files containing Electronic Data.
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`standalone computers, tablets, smartphones, memory cards, and hard drives.
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`27.
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`The terms “refer,” “relate,” or “reflect,” shall be construed to bring
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`within the scope of the request all documents that comprise, evidence, constitute,
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`describe, explicitly or implicitly refer to, were reviewed in conjunction with, or were
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`generated as a result of the subject matter of the request, including but not limited to
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`all documents that reflect, record, memorialize, discuss, evaluate, consider, review
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`or report the subject matter of the request.
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`28.
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`The use of the singular shall be deemed to include the plural, and the
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`use of one gender shall include the other, as appropriate in context.
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`29.
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`The connectives “and” and “or” shall be construed disjunctively or
`
`conjunctively as necessary to bring within the scope of the request all documents
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`that might otherwise be construed to be outside of its scope.
`
`30.
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`“Include” or “including” means including but not limited to and should
`
`not be read to limit the scope of any particular request, but merely as illustrative of
`
`some information that would be responsive.
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`31.
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`“All” shall be construed to include, “any” and “each,” “any” shall be
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`construed to include “all” and “each,” and “each” shall be construed to include “all”
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`and “any,” in each case as is necessary to bring within the scope of these Requests
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`documents and things that might otherwise be construed as outside their scope.
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`INSTRUCTIONS
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`1.
`
`Identify and produce all documents responsive to these Requests,
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`whether or not located in the State of Ohio, that are in your possession custody or
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`control. Each document, including electronic documents, shall be produced in the
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`form in which it is maintained in the normal course of your activities.
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`2.
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`This Subpoena shall be deemed continuing so as to require prompt
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`supplemental responses if, between the date hereof and the conclusion of the
`
`proceedings herein, any additional documents responsive to this request come into
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`Your possession, custody or control, or the possession, custody or control of Your
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`employees, agents or representatives, including but not limited to any of Your
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`attorneys, accountants or advisors.
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`3.
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`A request for Documents shall be deemed to include a request for all
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`transmittal sheets, cover letters, exhibits, enclosures, and attachments to the
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`Documents in addition to the Document itself, without abbreviation or expurgation.
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`4.
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`The Documents requested herein are to be produced as they are kept in
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`the usual course of business or organized and labeled (without permanently marking
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`the item produced) so as to correspond to the numbered paragraphs and/or categories
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`of particular requests. If there are no Documents responsive to a particular numbered
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`paragraph and/or category, so state in writing. All Documents that are physically
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`attached to each other when located for production shall be left so attached.
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`Documents that are segregated or separated from other Documents, whether by use
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`of binders, files, sub-files, or by dividers, tabs or any other method, shall be left so
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`segregated or separated. All labels or markings on any such binders, files, sub-files,
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`dividers, tabs, or folders shall be produced.
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`5.
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`Each draft, final document, original, reproduction, and each signed and
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`unsigned document and every additional copy of such document where such copy
`
`contains any commentary, note, notation or other change whatsoever that does not
`
`appear on the original or on the copy of the one document produced shall be deemed
`
`and considered to constitute a separate document.
`
`6.
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`If You object to any of the requests herein, whether in whole or in part,
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`on the grounds that the information sought therein is privileged or confidential, You
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`shall produce as much of the document concerned as to which no privilege is
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`claimed. With respect to each document or portion of a document response to this
`
`request withheld under a claim of privilege, the following information shall be
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`provided in a privilege log that shall be produced concurrently with the production
`
`of any documents:
`
`a.
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`the nature of the privilege (including work product) which is being
`
`claimed and, if applicable, the state rule or law governing such
`
`claim;
`
`b.
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`the author or creator of the Document;
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`c.
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`the identity of all persons who have or have had access, or purport
`
`to have or have had access, to the withheld Document or its contents;
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`d.
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`the type of Document;
`
`e.
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`the general subject matter of the Document;
`
`f.
`
`the date the Document was created and/or transmitted;
`
`g.
`
`the number of pages in the Document; and
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`h.
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`such other information as is sufficient to enable an assessment of the
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`applicability of the privilege or protection claimed, including,
`
`without limitation, the Document's author(s), addressee(s), and
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`where not apparent, the relationship between the author(s) and
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`addressee(s).
`
`7.
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`All Documents produced in response to this request shall be provided
`
`in their entirety, notwithstanding the fact that portions thereof may contain
`
`information not requested. All interim as well as final versions of the Document shall
`
`be produced, and all versions or copies that are not identical to the original or other
`
`produced copy of the Document, whether due to handwritten notations, revisions or
`
`otherwise, shall be produced.
`
`8.
`
`If any requested Document has been destroyed, discarded, or is no
`
`longer in existence, that Document is to be identified by stating:
`
`a. the information called for in Instruction 6 above;
`
`10
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`b. its date of destruction or discard;
`
`c. the manner and reason for its destruction or discard; and
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`d. the identity of the Document's last custodian and each person
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`responsible for the Document's destruction or unavailability.
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`9.
`
`If any requested Document was, but no longer is in Your possession,
`
`state what disposition was made of it, the date of such disposition and whether a
`
`copy thereof reposes in the possession, custody or control of some other Person or
`
`corporation and indicate why the Document or a copy of it cannot be produced.
`
`10.
`
`Where anything has been deleted from a Document produced:
`
`a. specify the nature of the material deleted;
`
`b. specify the reason for the deletion; and
`
`c. identify the person responsible for the deletion.
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`11.
`
`If no Documents exist that are responsive to a particular Document
`
`request, so state in writing.
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`12.
`
`If any request herein cannot be complied with in full, it shall be
`
`complied with to the extent possible with an explanation as to why full compliance
`
`is not possible.
`
`13.
`
`If, in responding to these requests, You claim any ambiguity in
`
`interpreting a request, or any applicable definition or instruction, You may not utilize
`
`that claimed ambiguity as a basis for refusing to respond. Rather, You shall set forth
`
`11
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`as