STEVEN L. LEVITT LEVITT Of Counsel KAREN L. WEISS LLP HON. EDWIN KASSOFF Presiding Justice, Appellate Term — NYS Supreme Court, Retired Of Counsel (1924-2015) ROSE LEVITT MICHAEL D. SCHIMEKt Law Clerk —_____ Michael R. Seidon, JD IRENE TENEDIOS* TREVOR M.GOMBERG* * MATTHEW I. KOOPERSMITH * Also Admitted In New Jersey + Also Admitted In D.C. andFlorida t Also Admitted in Texas October 26, 2020 wart CF bleR ie Ab This case has been referred by separate order to Magistrate Judge Moses for gener © onorable . onne Tams pretrial purposes. The issues raised in this letter shall thus be addressed to Judge □ United States District Court SO ORDERED. Southern District of New York {7 / 40 Foley Square, Room 2203 AM New York, New York 10007 Ronnie Abrams, U.S.D.J. October 27, 2020 Re: East Coast Power & Gas et al. adv. Palmieri Southern District of New York Case No.: 1:20-cv-02663-RA Your Honor: This firm is counsel to East Coast Power & Gas, LLC (“ECPG’”), John Knief, and Anthony Milanese, the Defendants in the above referenced matter pending before Your Honor. Pursuant to Local Civil Rule 37.2 and Your Honor’s Individual Rule 3, having engaged unsuccessfully in the meet-and-confer process, Defendants respectfully seek a telephonic pre- motion conference at Your Honor’s nearest convenience regarding 2 discrete discovery disputes, the first of which is time-sensitive. By way of brief case background, Plaintiffs pleaded case is that this is a ‘simple’ claim of non-payment of allegedly due compensation, and payment for his unredeemed Membership Interest in ECPG. First Amended Complaint (Doc. 15, para. 1) (“This case involves a company firing a longtime executive without causing [sic] after failing to pay his agreed salary for years, and then trying to enforce noncompete and nonsolicitation agreements that were expressly premised on payment of the executive’s salary.”).' As with the compensation, the Complaint alleges the valuation of the Membership Interest is set by contract, depending on whether or not termination was for cause or without cause, namely, (1) the price Plaintiff paid for such interest; or (2) a percentage of ECPG’s top line gross revenue. First Amended Complaint, paras. 20-21.
' Pending before this Court is Defendants’ Motion to Dismiss the First Amended Complaint (the “Motion’) based on, inter alia, lack of complete diversity of parties (moving papers filed at Docs. 22-24; opposition filed at Docs. 26-28; reply filed at Doc. 29). The Motion also raised that Plaintiff's unpleaded ‘alter ego’ claim — based solely on a conclusory recitation of some elements of such a claim — falls far short of the dictates of Igbal and Twombly. Although issue is not joined, Defendants’ anticipated case — whether litigated in this Court or in New York State Supreme Court — is that Plaintiff, while an executive of ECPG, engaged in extensive acts of fraud and other malfeasance causing the demise of ECPG, a company which had annual revenues of some $350 million.
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The two discovery issues are as follows: 1. Plaintiff’s Issuance of Subpoenas to ECPG’s Two Accounting Firms Seeking Irrelevant Documents and Containing Overly Broad Requests. Requested Relief: Defendants seek leave to move to quash and for a protective order as to two substantively identical documents subpoenas issued on Defendants’ accounting firms (the Subpoenas”) (copies filed herewith as Exhibit “A” (AVM DeMars) and Exhibit “B” (Bonadio Group). Because we are informed the Subpoenas were served just last week, and are returnable in under 2 weeks on November 6, 2020, and one of the non-parties is not under Defendants’ control, we respectfully seek a pre-motion conference at the Court’s earliest opportunity. The Subpoenas: While not intended to be exhaustive, the objectionable nature of some aspects of the Subpoenas is summarized for brevity below:
“Definitions” — “‘ECPG’ refers to ... The Subpoenas broadly define ECPG as including, Defendant East Coast Power & Gas, LLC | among other thing, “affiliates”, i.e., other companies including without limitation, any not named herein which Plaintiff was not an owner of, predecessor, successor, parent, affiliate, | or even employed by. There is no reason why Plaintiff subsidiary, partnership or any related should be entitled to discover, for example, entity...” (emphasis added). compensation (discussed below) that the other members of ECPG may have received from those other companies, nor has Plaintiff articulated any. Request 4 seeks “[a]]l documents The request seeks documents which are not relevant to concerning compensation paid or the claims or defenses; and is overbroad in seeking monies transferred by ECPG to nearly four (4) years of documents with unlimited Milanese and/or Knief from January 1, | scope “all documents concerning” language. 2017 to present”. Request 5 seeks “[a]]l documents The request seeks documents which are not relevant to concerning any capital contributions the claims or defenses; and is overbroad in seeking made by Milanese or Knief to ECPG nearly four (4) years of documents with unlimited from January 1, 2017 to the present”. scope “all documents concerning” language. Request 6 seeks “[a]]l documents The request seeks documents which are not relevant to concerning any capital withdrawals the claims or defenses; and is overbroad in seeking made by Milanese or Knief from ECPG | nearly four (4) years of documents with unlimited from January 1, 2017 to the present”. scope “all documents concerning” language. Request 8 seeks “[a]]l documents The request seeks documents which are not relevant to concerning any loans made by ECPG __| the claims or defenses; and is overbroad in seeking to Milanese and/or Knief from January | nearly four (4) years of documents with unlimited 1, 2017 to the present”. scope “all documents concerning” language.
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As set forth above, the Subpoenas are inherently overbroad, comprised of “all documents concerning” language and seeking four (4) years of irrelevant documents — extending to multiple forms of financial documents and the accountants’ internal work papers, for multiple business entities which never employed the Plaintiff. Plaintiff is not entitled to such “fishing expedition’, post-judgment type discovery. See, Great Amer. Ins. Co. v. TA Operating Corp., 06-cv-13230, 2008 WL 1848946, *8 (S.D.N.Y. 2008) (Francis, J.) (finding ‘alter ego’ type discovery based on “unsupported assertion[s]” constituted an improper “fishing expedition”, and in any event were “not tailored to that end and do not describe the documents to be searched with “with reasonable particularity.’). While we contend these requests are likewise improper in party discovery, “non- party discovery require[s] a stronger showing of relevance than for party discovery.” Zukoski v. Phila. Elec. Co., 93-CV-4780, 1994 WL 637345, *3 (E.D.Pa. 1994) (emphasis added). 2. Plaintiff’s Refusal to Respond to Interrogatories Permitted under Local Rule 33.3. Requested Relief: An Order compelling a response to 2 of Defendants’ interrogatories:
Interrogatory 1: “Identify the Local Civil Rule 33.3(a) permits interrogatories “seeking names and full contact information | names of witnesses with knowledge of information relevant of all customers of East Coast to the subject matter of the action”. The identities of Power & Gas, LLC, who Plaintiff | customers to whom Plaintiff has provided goods and services authorized to receive “friends and _ | of ECPG at a discounted price or free of charge is within the family”, discounted, and/or “zero _| scope of permitted discovery under the Local Rules and also rate” products and/or services relevant to Defendants’ anticipated claims and/or defenses — from East Coast Power & Gas, should this action continue in this Court — including, but not LLC at any time during the course | limited to, a counterclaim sounding in conversion. of Plaintiffs employment.” Interrogatory 3: “Identify the Local Civil Rule 33.3(b) also permits interrogatories “if they passcode for the iPhone turned in | are a more practical method of obtaining the information by Plaintiff to East Coast Power & | sought than a request for production or a deposition”. Gas, LLC.” Defendants’ anticipated case is based on fraud and other malfeasance perpetrated by Plaintiff while an executive of ECPG. The passcode will allow ECPG to discover documents (or the absence of documents) on a locked iPhone already in ECPG’s possession that will be relevant to Defendants’ anticipated case, and a more practical method than another form of discovery. For the foregoing reasons, Defendants respectfully request that the Court grant the pre- motion conference at its earliest opportunity. We thank the Court for its time and courtesies. Very truly yours, LEVITT LLP By: _ /s/ Trevor M. Gomberg cc: Counsel of Record (via ECF) Trevor M. Gomberg, Esq.
Exhibit A
UNITED STATES DISTRICT COURT for the Southern District of New York VINCENT PALMIERI ) inti v. ) Civil Action No, 1:20-ev-02663-RA EAST COAST POWER & GAS, LLC, ) ANTHONY MILANESE, JOHIN KNIEF, et al. ) Defendant ) SUBPOENA TO PRODUCE DOCUMENTS, INFORMATION, OR OBJECTS OR TO PERMIT INSPECTION OF PREMISES IN A CIVIL ACTION AVM DeMars CPAs LLP, Attn: Louis DeMars 275 Hillside Ave. Suite 100, Williston Park, NY 11596 (Name of person to whom this subpoena is directed) of Production: YOU ARE COMMANDED to produce at the time, date, and place set forth below the following electronically stored information, or objects, and to permit inspection, copying, testing, or sampling of the See Exhibit A
Place: | aw Offices of Michael D. Steger, PC Date and Time: 30 Ramland Road, Suite 201 . Orangeburg, NY 10962 11/06/2020 11:00 am Inspection of Premises: YOU ARE COMMANDED to permit entry onto the designated premises, land, or property possessed or controlled by you at the time, date, and location set forth below, so that the requesting party Inspect, measure, survey, photograph, test, or sample the property or any designated object or operation on it. Place: Date and Time: □
The following provisions of Fed. R. Civ. P. 45 are attached — Rule 45(c), relating to the place of compliance; 45(d), relating fo your protection as a person subject to a subpoena; and Rule 45(e) and (g), relating to your duty to to this subpoena and the potential consequences of not doing so. 10/06/2020 CLERK OF COURT
Signature of Clerk or Deputy Clerk Lo Attorney's oe name, address, e-mail address, and telephone number of the attorney representing (name of party) laintiff VINCENT PALMIERI , who issues or requests this subpoena, are: D. Steger, Law Offices of Michael D. Steger, PC, 30 Ramland Road, Suite 201, Orangeburg, NY 10962 com (845) 359-4600 ( 845) 838.9707 (fax) Notice to the person who issues or requests this subpoena notice and a copy of the subpoena must be served on each party in this case before it is served on the person to whom Ie Fad R Caw P ASfavfAs
Action No, 1:20-cv-02663-RA PROOF OF SERVICE (This section should not be filed with the court unless required by Fed. R. Civ. P. 45.) I received this subpoena for fname of individual and title, if any) . 1 served the subpoena by delivering a copy to the named person as follows:
on (date) ; OT O returned the subpoena unexecuted because:
Unless the subpoena was issued on behalf of the United States, or one of its officers or agents, ] have also tendered to the witness the fees for one day’s attendance, and the mileage allowed by law, in the amount of $ . fees are $ for travel and $ for services, for a total of $ 0.00
I declare under penalty of perjury that this information is true.
Server's signature
Printed name and title
Server’s address information regarding attempted service, etc.:
Federal Rule of Civil Procedure 45 (c), (d), (e), and (g) (Effective 12/1/13) Place of Compliance. (ii) disclosing an unretained expert's opinion or information that does not describe specific occurrences in dispute and results from the expert’s (1) For a Trial, Hearing, or Deposition. A subpoena may command a study that was not requested by a party. to attend a trial, hearing, or deposition only as follows: (C) Specifving Conditions as an Alternative. In the circumstances (A) within 100 miles of where the person resides, is employed, or described in Rule 45(d)(3)(B), the court may, instead of quashing or transacts business in person; or modifying a subpoena, order appearance or production under specified (B) within the state where the person resides, is employed, or regularly conditions if the serving party: business in person, if the person (8) shows a substantial need for the testimony or material that cannot be (i) is a party or a party’s officer; or otherwise met without undue hardship; and (ii) is commanded to attend a trial and would not incur substantial (ii) ensures that the subpoenaed person will be reasonably compensated.
(e) Duties in Responding to a Sebpoena. (2) For Other Discovery. A subpoena may command: (A) production of documents, electronically stored information, or (1) Producing Documents or Electronically Stored Information. These things at a place within 100 miles of where the person resides, is procedures apply to producing documents or electronically stored or regularly transacts business in person; and information: (B) inspection of premises at the premises to be inspected. {A) Documents. A person responding to a subpoena to produce documents must produce them as they are kept in the ordinary course of business or Protecting a Person Subject to a Subpoena; Enforcement. must organize and label them (o correspond to the categories in the demand. (B) Form for Producing Electronically Stored Information Noi Specified. (1) Avoiding Undue Burden or Expense; Sanctions. A party ot attorney Ifa subpoena does not specify a form for producing electronically stored for issuing and serving a subpoena must take reasonable steps information, the person responding must produce it in a form or forms in avoid imposing undue burden or expense on a person subject to the which it is ordinarily maintained or in a reasonably usable form or forms. The court for the district where compliance is required must (C) Electronically Stored information Produced in Only One Form. The this duty and impose an appropriate sanction-——-which may include person responding need not produce the saine electronically stored earnings and reasonable attormey’s fees—on a party or attorney who information in more than one form. to comply. (D) inaccessible Electronically Stored Information. The person responding need not provide discovery of electronically stored information (2) Command to Produce Materiais or Permit Inspection. from sources that the person identifies as not reasonably accessible because (A) Appearance Noi Required. A person commanded to produce of undue burden or cost. On motion to compel discovery or for a protective ocuments, electronically stored information, or tangible things, or to order, the person responding must show that the information is net ermit the inspection of premises, need not appear in person at the place of | reasonably accessible because of undue burden or cost. If that showing is or inspection unless also commanded to appear for a deposition, | made, the court may nonetheless order discovery from such sources if the or trial. requesting party shows good cause, considering the imitations of Rule (B) A person commanded to produce documents or tangible 26(b)(2)(C). The court may specify conditions for the discovery. or to permit inspection may serve on the party or attorney designated the subpoena a written objection to inspecting, copying, testing, or (2) Claiming Privilege or Protection. any or all of the materials or to inspecting the premises—or to (A) information Withheld. A person withholding subpoenaed information roducing electronically stored information in the form or forms requested. under a claim that it is privileged or subject to protection as trial-preparation objection must be served before the earlier of the time specified for material must; or 14 days after the subpoena is served. Ifan objection is made, (1) expressly make the claim: and following rules apply: (ii} describe the nature of the withheld documents, communications, or (i) At any time, on notice to the commanded person, the serving party —_ tangible things in a manner that, without revealing information itself move the court for the district where compliance is required for an privileged or protected, will enable the parties to assess the claim, compelling production or inspection. (B) Information Produced. Hf information produced in response to a (ii) These acts may be required only as directed in the order, and the subpoena is subject to a claim of privilege or of protection as must protect a person who is neither a party nor a party’s officer from _trial-preparation material, the person making the claim may notify any parity expense resulting from compliance. that received the information of the claim and the basis for it. After being notified, a party must promptly return, sequester, or destroy the specified (3) Quashing or Modifying a Subpoena. information and any copies it has; must not use or disclose the information (A) When Required, On timely motion, the court for the district where until the claim is resolved; must take reasonable steps to retrieve the is required must quash or modify a subpoena that: information if the party disclosed it before being notified; and may promptly (1) fails to allow a reasonable time to comply; present the information under seal to the court for the district where (ii) requires a person to comply beyond the geographical limits compliance is required for a determination of the claim. The person who in Rule 45(c); produced the information must preserve the information until the claim is (iii) requires disclosure of privileged or other protected matter, if no resolved. ot waiver applies; or subjects a person to undue burden. {g}Contempt, . (B} When Permitted. To protect a person subject to or affected by a The court for the district where compliance is required—and also, after a the court for the district where compliance is required may, on motion is transferred, the issuing court—may hold in contempt a person guash or modify the subpoena if it requires: who, having been served, fails without adequate excuse to obey the (i) disclosing a trade secret or other confidential research, subpoena ot an order related to it. evclopment, or commercial information; or
For access fo subpoena materials, see Fed. R. Civ. P. 45(a) Committee Note (2013).
ATTACHMENT A REQUEST FOR PRODUCTION OF DOCUMENTS INSTRUCTIONS The subpoena commands you to produce all documents and/or electronically stored information within your possession, custody or control, including documents within the possession, custody or control of any agent, attorney or other representative of you, and permit their inspection and/or copying. In the event any document requested is withheld on the basis of a claim of privilege, please identify the author of the document, the date of the document, the name of each person who received the document, the name, address, email address and phone number of to whom the content of the documents have been communicated, a brief description of the document and the statute, rule or decision that is claim to give rise to the privilege. If for reasons other than a claim of privilege, you refused to produce any document requested herein, please state the ground upon which the refusal is based with sufficient specificity to permit a determination of the property upset refusal. DEFINITIONS A. "You" refers to the party receiving this subpoena and any persons or entities acting on □ its behalf. B. "ECPG" refers to Defendant East Coast Power & Gas, LLC, and its respective officers, directors, members, managers, principals, agents, employees or representatives and ali persons acting on behalf of each for any purpose, including without limitation, any predecessor, successor, parents, affiliate, subsidiary, partnership or related entity, and any officers, employees, servants, agents or representatives of, and any and all persons acting on behaif of any such predecessor, successor, parent, affiliate, subsidiary, partnership or related entity. C. “Palmieri” means Plaintiff Vincent Palmieri. □
D. The terms "documents" or "all documents” are used herein, these terms are meant to include all documents available to You and further to include, without limitation, any written, recorded, graphic, or printed matter, in whatever form, whether printed and/or produced by hand or any other process, specifically including (1) all originals, copies or drafts, and (2) originals, copies or drafts on which appear any notes or writings placed thereon after the document was first printed, typed, recorded, or made into graphic matter, however produced or reproduced, in your actual or constructive possession, including, without limitation, any letters, telegrams, memoranda, writings, circulars, monographs, bulletins, manuals, speeches, audio and video tapes, drawings, blueprints, recordings, computer disks or tapes, computer electronic or optical memory devices in readable form, computer printouts, computer electronic messages, notes, correspondence, communications of any nature, summaries of records of conversations or conferences, information which can be
retrieved by any process, test and/or analysis, reports and data sheets, specifications, sketches, minutes or reports and/or summaries or interviews, reports and/or summaries of investigations, opinions or reports of consultants, agreements and contracts, brochures, pamphlets, advertisements, letters to the trade, and including any tangible things within the scope of Federal Rule of Civil Procedure Rule 34(a)(1). E. The term “communication” means the transmittal of information (in the form of facts, ideas, inquiries or otherwise), F, In accordance with the Local Rules of this Court, the terms “and” and “or” shall be construed either disjunctively or conjunctively as necessary to bring within the scope of the request all _ responses that might otherwise be construed to be outside of its scope.
LIST OF DOCUMENTS REQUESTING
1. All financial statements prepared for ECPG for the tax years 2017, 2018, 2019 and 2020, including but not limited to any drafts and amended financial statements. 2. ECPG’s federal and New York and New Jersey state tax returns for the tax years 2017, 2018, 2019 and 2020, including but not limited to any schedules thereto and any amended returns, 3. Documents sufficient to show ECPG’s gross revenues for 2019. 4. All documents concerning compensation paid or monies transferred by ECPG to Milanese and / or Knief from January 1, 2017 to the present, including but not limited to any K- 1’s. 5. All documents concerning any capital contributions made by Milanese or Knief to ECPG from January 1, 2017 to the present. 6. All documents concerning any capital withdrawals made by Milanese or Knief from ECPG from January 1, 2017 to the present. 7. Ali documents concerning any loans made by Milanese or Knief to ECPG from January 1, 2017 to the present.
8. All documents concerning any loans made by ECPG to Milanese and / or Knief from January 1, 2017 to the present. 9. All documents concerning monies owed by ECPG to East Coast Petroleum, Inc. from January 1, 2017 to the present. 10. All documents concerning monies owed by ECPG to East Coast Mechanical Contracting Corp. from January 1, 2017 to the present. i. All documents concerning compensation ECPG paid to Palmieri from January 1, 2016 to the present, including but not limited to any K-1’s or W-2’s. 12. All concerning any communications conceming Palmieri from ECPG to you from January 1, 2020 to the present.
Exhibit B
Oe ene ote nn IDOE OOOO
UNITED STATES DISTRICT COURT for the Southern District of New York VINCENT PALMIERI ) ee ne 5 v. ) Civil Action No. 1:20-cv-02663-RA EAST COAST POWER & GAS, LLC, ) ANTHONY MILANESE, JOHN KNIEF, etal. 9) Defendant ) SUBPOENA TO PRODUCE DOCUMENTS, INFORMATION, OR OBJECTS OR TO PERMIT INSPECTION OF PREMISES IN A CIVIL ACTION The Bonadio Group, Attn: Jeff Trubia, 432 N Frankiin St Ste 60, Syracuse, NY 13204 Se SS eee ‘Name of person to whom this subpoena is directed) Production: YOU ARE COMMANDED to produce at the time, date, and place set forth below the following electronically stored information, or objects, and to permit inspection, copying, testing, or sampling of the See Exhibit A
Place: _aw Offices of Michael D. Steger, PC Date and Time: 30 Ramland Road, Suite 201 . Orangeburg, NY 10962 41/06/2020 11:00 am
Inspection of Premises: YOU ARE COMMANDED to permit entry onto the designated premises, land, ot property possessed or controlled by you at the time, date, and location set forth below, so that the requesting party inspect, measure, survey, photograph, test, or sample the property or any designated object or operation on it. Place: Date and Time:
The following provisions of Fed. R. Civ. P. 45 are attached — Rule 45(c), relating to the place of compliance; 45(d), relating to your protection as a person subject to a subpoena; and Rule 45(e) and (g), relating to your duty to to this subpoena and the potential consequences of not doing so. 10/06/2020 CLERK OF COURT OR < aa Signature of Clerk or Deputy Clerk Attorney ’s-signature
name, address, e-mail address, and telephone number of the attorney representing (name of party) VINCENT PALMIERI , who issues or requests this subpoena, are: Michael D. Steger, Law Offices of Michael D. Steger, PC, 30 Ramland Read, Suite 201, Orangeburg, NY 10962 Notice to the person who issues or requests this subpoena A notice and a copy of the subpoena must be served on each party in this case before it is served on the person to whom
ee eee I EEE - ivil Action No, 1:20-cv-02663-RA PROOF OF SERVICE (This section should not be filed with the court unless required by Fed. R. Civ. P. 45.) I received this subpoena for (name of individual and title, if any) (date} .
C1 T served the subpoena by delivering a copy to the named person as follows:
on (date) 5; or 1 returned the subpoena unexecuted because:
Unless the subpoena was issued on behalf of the United States, or one of its officers or agents, I have also tendered to the witness the fees for one day’s attendance, and the mileage allowed by law, in the amount of $ . fees are $ for travel and $ for services, for a total of $ 0.00
1 declare under penalty of perjury that this information is true,
_ Server's signature
res Server's address dditional information regarding attempted service, etc.:
□□ en □□ Federal Rule of Civil Procedure 45 (c), (d), (), and (g) (Effective 12/1/13) Place of Compliance. (if) disclosing an unretained expert's opinion or information that does not describe specific occurrences in dispute and results from the □□□□□□□□ 1) For a Trial, Hearing, or Deposition. A subpoena may command a study that was not requested by a party. fo attend a trial, hearing, or deposition only as follows: (C} Specifving Conditions as an Alternative. \n the circumstances (A) within 100 miles of where the person resides, is employed, or described in Rule 45(d}(3\(B), the court may, instead of quashing or business in person; or modifying a subpoena, order appearance or production under specified (B) within the state where the person resides, is employed, or regularly conditions if the serving party: business in person, if the person (i) shows a substantial need for the testimony or material that cannot be (i) is a party or a party’s officer; or otherwise met without undue hardship; and is commanded to attend a trial and would not incur substantial (ii) ensures that the subpoenaed person will be reasonably compensated.
(e) Duties in Responding to a Subpoena. For Other Discovery, A subpoena may command: (A) production of documents, electronically stored information, or (1) Producing Documents or Electronically Stored information. These ngible things at a place within 100 miles of where the person resides, is procedures apply to producing documents or electronically stored or regularly transacts business in person; and information: . (B) inspection of premises at the premises to be inspected. (A) Documents. A person responding to a subpoena to produce documents must produce them as they are kept in the ordinary course of business or Protecting a Person Subject te a Subpoena; Enforcement. must organize and label them to correspond to the categories in the demand. (B) Form for Producing Electronically Stored Information Not Specified. Avoiding Undue Burden or Expense; Sanctions. A party or attorney Ifa subpoena does not specify a form for producing electronically stored for issuing and serving a subpoena must take reasonable steps information, the person responding must produce it in a form of forms in avoid imposing undue burden or expense on a person subject to the which it is ordinarily maintained or in a reasonably usable form or forms. The court for the district where compliance is required must (C) Electronically Stored Information Produced in Only One Form. The this duty and impose an appropriate sanetion-—which may include person responding need not produce the same electronically stored earnings and reasonable attorney’s fees—on a parly or attorney who information in more than one form. to comply. (D) Inaccessible Electronically Stored information. The person responding need not provide discovery of electronically stored information (2) Command to Produce Materials or Permit Inspection. from sources that the person identifies as not reasonably accessible because (A) Appearance Not Required, A person commanded to produce of undue burden or cost. On motion to compel discovery or for a protective electronically stored information, or tangible things, or to order, the person responding must show that the information is not the inspection of premises, need not appear in person at the place of reasonably accessible because of undue burden or cost. If that showing is or inspection unless also commanded to appear for deposition, made, the court may nonetheless order discovery from such sources if the or trial. requesting party shows good cause, considering the limitations of Rule (B) Objections, A person commanded to produce documents or tangible 26(b\(2)(C). The court may specify conditions for the discovery. or to permit inspection may serve on the party or attommey designated the subpoena a written objection to inspecting, copying, testing, or (2) Claiming Privilege or Protection. ampling any or all of the materials or to inspecting the premises—or to (A) Information Withheld, A person withholding subpoenaed information electronically stored information in the form or forms requested, under a claim that it is privileged or subject to protection as trial-preparation objection must be served before the earlier of the time specified for material must: or 14 days after the subpoena is served. [fan objection is made, (i) expressly make the claim; and following rules apply: (ii) describe the nature of the withheld documents, communications, or At any time, on notice to the commanded person, the serving party tangible things in a manner that, without revealing information itself move the court for the district where compliance is required for an privileged or protected, will enable the parties to assess the claim. production or inspection. (8) Information Produced. If information produced in response to a (ii) These acts may be required only as directed in the order, and the subpoena is subject to a claim of privilege or of protection as must protect a person who is neither a party nor a party’s officer from _trial-preparation material, the person making the claim may notify any party expense resulting from compliance. that received the information of the claim and the basis for it. After being notified, a party must promptly return, sequester, or destroy the specified (3) Quashing or Modifying a Subpoena. information and any copies it has; must not use or disclose the information (A) When Required. On timely motion, the court for the district where until the claim is resolved; must take reasonable steps to retrieve the is required must quash or modify a subpoena that: information if the party disclosed it before being notified; and may promptly (i) fails to allow a reasonable time to comply; present the information under seal to the court for the district where (ii) requires a person to comply beyond the geographical limits compliance is required for a determination of the claim. The person who in Rule 45(c); produced the information must preserve the information until the claim is requires disclosure of privileged or other protected matter, if no resolved, or waiver applies; or (iv) subjects a person to undue burden. (gz) Contempt. (B) When Permitted. To protect a person subject to or affected by a The court for the district where compliance is required—and also, after a the court for the district where compliance is required may, on motion is transferred, the issuing court—may hold in contempt a person quash or modify the subpoena if it requires: who, having been served, fails without adequate excuse to obey the (i) disclosing a trade secret or other confidential research, subpoena or an order related to it. or commercial information; or
For access to subpoena materials, see Fed. R. Civ. P. 45(a) Committee Note (2013).
ATTACHMENT A REQUEST FOR PRODUCTION OF DOCUMENTS INSTRUCTIONS The subpoena commands you to produce all documents and/or electronically stored information within your possession, custody or control, including documents within the possession, custody or control of any agent, attorney or other representative of you, and permit their inspection and/or copying. In the event any document requested is withheld on the basis of a claim of privilege, please identify the author of the document, the date of the document, the name of each person who received the document, the name, address, email address and phone number of to whom the content of the documents have been communicated, a brief description of the document and the statute, rule or decision that is claim to give rise to the privilege. If for reasons other than a claim of privilege, you refused to produce any document requested herein, please state the ground upon which the refusal is based with sufficient specificity to permit a determination of the property upset refusal. DEFINITIONS A. "You” refers to the party receiving this subpoena and any persons or entities acting on its behalf. B. "ECPG" refers to Defendant East Coast Power & Gas, LLC, and its respective officers, directors, members, managers, principals, agents, employees or representatives and all persons acting on behalf of each for any purpose, including without limitation, any predecessor, successor, parents, affiliate, subsidiary, partnership or related entity, and any officers, employees, servants, agents or representatives of, and any and all persons acting on behalf of any such predecessor, successor, parent, affiliate, subsidiary, partnership or related entity.
C. “Palmieri” means Plaintiff Vincent Palmicri.
D. The terms “documents” or “all documents" are used herein, these terms are meant to include all documents available to You and further to include, without limitation, any written, recorded, graphic, or printed matter, in whatever form, whether printed and/or produced by hand or any other process, specifically including (1) all originals, copies or drafts, and (2) originals, copies or drafts on which appear any notes or writings placed thereon after the document was first printed, typed, recorded, or made into graphic matter, however produced or reproduced, in your actual or constructive possession, including, without limitation, any letters, telegrams, memoranda, writings, circulars, monographs, bulletins, manuals, speeches, audio and video tapes, drawings, blueprints, recordings, computer disks or tapes, computer electronic or optical memory devices in readable form, computer printouts, computer electronic messages, notes, correspondence, communications of any nature, summaries of records of conversations or conferences, information which can be
.
retrieved by any process, test and/or analysis, reports and data sheets, specifications, sketches, minutes or reports and/or summaries or interviews, reports and/or summaries of investigations, opinions or reports of consultants, agreements and contracts, brochures, pamphlets, advertisements, letters to the trade, and including any tangible things within the scope of Federal Rule of Civil Procedure Rule 34(a\(1). E. The term “communication” means the transmittal of information (in the form of facts, ideas, inquiries or otherwise). F. In accordance with the Local Rules of this Court, the terms “and” and “or” shall be construed either disjunctively or conjunctively as necessary to bring within the scope of the request all responses that might otherwise be construed to be outside of its scope.
1. All financial statements prepared for ECPG for the tax years 2017, 2018, 2019
and 2020, including but not limited to any drafts and amended financial statements.
2. ECPG’s federal and New York and New Jersey state tax returns for the tax years
2017, 2018, 2019 and 2020, including but not limited to any schedules thereto and any amended returns. 3. Documents sufficient to show ECPG’s gross revenues for 2019.
4. All documents concerning compensation paid or monies transferred by ECPG to
Milanese and / or Knief from January 1, 2017 to the present, including but not limited to any K-
5. All documents concerning any capital contributions made by Milanese or Knief to
ECPG from January 1, 2017 to the present. 6. All documents concerning any capital withdrawals made by Milanese or Knief from ECPG from January 1, 2017 to the present. 7. All documents concerning any loans made by Milanese or Knief to ECPG from
January 1, 2017 to the present.
8. All documents concerning any loans made by ECPG to Milanese and / or Knief
from January 1, 2017 to the present. 9. All documents concerning monies owed by ECPG to East Coast Petroleum, Inc.
from January 1, 2017 to the present. 10. All documents concerning monies owed by ECPG to East Coast Mechanical Contracting Corp. from January 1, 2017 to the present. Li. All documents concerning compensation ECPG paid to Palmieri from January 1,
2016 to the present, including but not limited to any K-1’s or W-2’s.
12. All concerning any communications concerning Palmieri from ECPG to you from
January 1, 2020 to the present.