Preview
FILED: ONONDAGA COUNTY CLERK 06/28/2021 04:55 PM INDEX NO. 003917/2021
NYSCEF DOC. NO. 9 RECEIVED NYSCEF: 06/28/2021
EXHIBIT “C”
FILED: ONONDAGA COUNTY CLERK 06/28/2021 04:55 PM INDEX NO. 003917/2021
NYSCEF DOC. NO. 9 RECEIVED NYSCEF: 06/28/2021
STATE OF NEW YORK
SUPREME COURT COUNTY OF ONONDAGA
COSTELLO, COONEY & FEARON, PLLC,
Plaintiff,
NOTICE TO PRODUCE
vs.
Index No.: 003917/2021
MELINDA BURDICK BOWE,
Defendant.
PLEASE TAKE NOTICE that, pursuant to CPLR § 3120, Defeñdañt Melinda Burdick
Bowe"
Bowe (referred to as "Ms. herein), by her attorneys, Woods Oviatt Gilman LLP, hereby
"CC&F"
requires and demands that Plaintiff Costello, Cooney & Fearon, PLLC (referred to as
herein) produces and permits discovery of the following documents, at the offices of Woods Oviatt
Gilman LLP, 1900 Bausch & Lomb Place, Rochester, New York 14604, within twenty (20) days:
DEFINITIONS AND INSTRUCTIONS
"document"
A. The term shall refer to any printed, written, recorded, typed or
reproduced material, including handwritten material, or electronic, graphic or computerized matter
from whatever source, however produced or reproduced, whether in the original or otherwise,
whether sent or received or neither, including the original and non-identical copy (whether
any
different from the original because of notes made on or attached to such copy or the presence of
signatures indicating execution or otherwise) including, without limitation, all correspondence,
invoices, statements, bills, accountings, memoranda, internal or otherwise, notes, reports, catalogs,
or other writings, recordiñgs, or data storage media, and plans, diagrams, schedules, charts,
schematics, or any other similar material.
{8509835:}
Woods Oviatt Gibnan LLP
1900 Bausch & Lomb Place
Rochester. New York 14604
FILED: ONONDAGA COUNTY CLERK 06/28/2021 04:55 PM INDEX NO. 003917/2021
NYSCEF DOC. NO. 9 RECEIVED NYSCEF: 06/28/2021
"communication" "communications"
B. As used herein, and shall mean any
transmission of information by one or more persons or between two or more persons by any means
including, without limitation, telephone conversations, letters, telegrams, teletypes, telexes,
facsimiles, electronic mail, computer transmissions, written memoranda, and face-to-face
conversations.
"CC&F"
C. As used in this request, "plaintiff", "you", "your", or shall mean
Costello, Cooney & Fearon, PLLC, and shall include any present or former members, partners,
owners, employees, representatives, assigns, advisors, attorneys or agents.
"person"
D. As used in this request, means any individual, firm, corporation,
partnership, unincorporated association, trust, as well as any other legal, business, regulatory or
governmental entity.
"relating" "relate"
E. Documents or that to any given subject shall mean,
without limitation, any document that, in whole or in part, constitutes, comprises, contains,
discusses, embodies, reflects, refers to, identifies, states, pertains directly or indirectly to, or is in
any way relevant to the particular subject matter identified.
F. Whenever used in this request, the singular includes the plural and the plural
"and" "or"
includes the singular; the words and are to be read as both conj'metive and disjunctive;
"including" limitation."
the word means "including without
G. These requests shall be deemed to relate to any and allrelevant documents
and things within your possession, custody or control, including, without limitation, documents
and things located in the personal files of any and all past and present directors, officers, agents,
representatives, employees, investigators, attorneys and legal representatives, and accoüñtants or
others retained by you.
{8509835:} 2
Woods Oviatt Gilman LLP
1900 Bausch & Lomb Place
Rochester. New York 14604
FILED: ONONDAGA COUNTY CLERK 06/28/2021 04:55 PM INDEX NO. 003917/2021
NYSCEF DOC. NO. 9 RECEIVED NYSCEF: 06/28/2021
H. Documents from any single file shall be produced in the same order as they
were found in such file,and the files from which they are being produced shall be identified. If
copies of documcats are produced in lieu of the originals, such copies should be legible and bound
or stapled in the same manner as the original.
I. If the production of any documents and things responsive to these requests
is objected to on the ground of privilege or work product, or for any other reason, with respect to
each such document state:
(a) the identity of itsauthor(s) or creator(s);
(b) the identity of itsrecipient(s);
(c) its subject matter;
(d) the identity of the person(s) to whom the document or any portion
thereof has already been revealed;
(e) the source of the document;
(f) the date of the document; and
(g) the basis upon which itis being withheld.
In producing the documents and things requested, indicate the specific request(s) pursuant to which
each document or group of documents and things is being produced.
J. If any doc=nent that would have been responsive has been destroyed or is
otherwise no longer in your possession, custody or control, describe the content of the document,
and state the location of all copies of it and state the date of, and identify the person resposible
for its destruction, loss, transfer, or other action by which the document left your possession,
custody or control.
(8509835:} 3
Woods Oviatt Gilman LLP
1900Bausch & Lomb Place
Ilochester. New York 14604
FILED: ONONDAGA COUNTY CLERK 06/28/2021 04:55 PM INDEX NO. 003917/2021
NYSCEF DOC. NO. 9 RECEIVED NYSCEF: 06/28/2021
K. These document requests are intended as continuing requests. Accordingly,
any documents requested herein, which are not now in your possession, but which later come into
your possessien, are to be disclosed at such later time as they come into your possession.
DOCUMENTS TO BE PRODUCED
1. Complete copy of Plaintiffs Operating Agreement, with any amendments.
2. All documents propagated pursuant to the Operating Agreement which
govern policies, practices, and/or procedures for calculating compensation to the members (or
"Partners") of CC&F that have been in effect from 2017 to the present.
3. All documents referring or relating to the authority of the Executive
"Accouñt"
Cessince to make determinations regarding the maintenance of specific computations
as referenced in Paragraph 8 of Plaintiff's Complaint.
4. All documents and things, including electronic comm==!cations and records
of telephone conversations, referring or relating to the withdrawal of Ms. Bowe as a Partner of
CC&F.
5. All documents and things, including electronic correlcations and records
of telephone conversations, referring or relating to entering into an Of Counsel Agreement with
CC&F to work as an independent contractor as set forth in Paragraph 14 of Plaintiffs Complaint.
6. A copy of the fully executed Of Counsel Agreement referred to in Plaintiffs
Complaint.
7. All documents and things which document Ms. Bowe's billing records from
November 23, 2020 to the present.
8. All documents and things which deement records of all fees actually paid
and received as the result of Ms. Bowe's services from November 23, 2020 to the present.
(8509835:)
Woods Oviatt GilnW1 LLP
1900 Bausch & l amb
Place
Rochester. New 1ork
L4604
FILED: ONONDAGA COUNTY CLERK 06/28/2021 04:55 PM INDEX NO. 003917/2021
NYSCEF DOC. NO. 9 RECEIVED NYSCEF: 06/28/2021
9. All documents and things which document records of all fees generated by
other CC&F time keepers actually paid and received by CC&F for clients originated by Ms. Bowe
from November 23, 2020 to the present.
10. All documents and things which refer or relate to monies paid out to Ms.
Bowe subsequent to November 23, 2020.
11. All documents and things which document compensation paid to CC&F
partners during the 2020 calendar year.
12. All documents and things which decament the year-end statistics of all
CC&F Partners for the 2020 calendar year, including the number of billable hours worked and fees
originated and/or received.
13. Copies of all federal, state, and local tax returns for CC&F, i=!=Æng all
fixed asset and appreciation schedules and supplemental schedules for each fiscal year for the
reporting periods beginning January 1, 2017 to the present.
14. All documents regarding the application by CC&F for a "PPP loan".
15. All documents referring or relating to an application by CC&F for PPP loan
forgiveness.
"reclassifying"
16. All documents referring or relating to CC&F partnership
compensation and income from calendar year 2020 to calendar year 2021.
17. All documents and things exchanged with Bowers & Company referring or
relating to CC&F's finances, accounting, records, tax preparation or other services provided by
Bowers & Company for 2020 and 2021.
(8509835:} 5
Woods Oviatt Gilman LLP
1900Bausch & Lomb Place
Ilochester. New York I4004
FILED: ONONDAGA COUNTY CLERK 06/28/2021 04:55 PM INDEX NO. 003917/2021
NYSCEF DOC. NO. 9 RECEIVED NYSCEF: 06/28/2021
18. All documents upon which CC&F will rely for the proposition that Ms.
Bowe is required to pay to CC&F the amount of a negative capital account after separation from
the partnership.
19. All documents not produced which Plaintiff intends to produce or
already
rely upon at a trial of this case.
PLEASE TAKE FURTHER NOTICE that each of the foregoing demands is of
a continuing nature and to the extent the response to any demed may change, such response
should be supplemented immediately upon discovery of the change.
UPON YOUR FAILURE TO COMPLY, the undersigned reserves the right to
move to preclude evidence, testing and/or instructions relating to the subject issue or seek other
relief as is proper.
DATED: June 18, 2021
Rochester, New York
WOODS OVIATT GILMAN LLP
By: s:/ Greta K. Kolcon
Greta K. Kolcon, Esq.
Attorneys for Defendant
1900 Bausch & Lomb Place
Rochester, New York 14604
585.987.2800
TO: Robert J. Smith, Esq.
Attorneys for Plaintiff
211 West Jefferson Street
Syracuse, NY 13202
315.422.1152
(8509835:} 6
Woods Oviatt Gilman LLP
1900 Bausch & Lomb Place
Rochester, New York 14604
Preview
FILED: ONONDAGA COUNTY CLERK 06/28/2021 04:55 PM INDEX NO. 003917/2021 NYSCEF DOC. NO. 9 RECEIVED NYSCEF: 06/28/2021 EXHIBIT “C” FILED: ONONDAGA COUNTY CLERK 06/28/2021 04:55 PM INDEX NO. 003917/2021 NYSCEF DOC. NO. 9 RECEIVED NYSCEF: 06/28/2021 STATE OF NEW YORK SUPREME COURT COUNTY OF ONONDAGA COSTELLO, COONEY & FEARON, PLLC, Plaintiff, NOTICE TO PRODUCE vs. Index No.: 003917/2021 MELINDA BURDICK BOWE, Defendant. PLEASE TAKE NOTICE that, pursuant to CPLR § 3120, Defeñdañt Melinda Burdick Bowe" Bowe (referred to as "Ms. herein), by her attorneys, Woods Oviatt Gilman LLP, hereby "CC&F" requires and demands that Plaintiff Costello, Cooney & Fearon, PLLC (referred to as herein) produces and permits discovery of the following documents, at the offices of Woods Oviatt Gilman LLP, 1900 Bausch & Lomb Place, Rochester, New York 14604, within twenty (20) days: DEFINITIONS AND INSTRUCTIONS "document" A. The term shall refer to any printed, written, recorded, typed or reproduced material, including handwritten material, or electronic, graphic or computerized matter from whatever source, however produced or reproduced, whether in the original or otherwise, whether sent or received or neither, including the original and non-identical copy (whether any different from the original because of notes made on or attached to such copy or the presence of signatures indicating execution or otherwise) including, without limitation, all correspondence, invoices, statements, bills, accountings, memoranda, internal or otherwise, notes, reports, catalogs, or other writings, recordiñgs, or data storage media, and plans, diagrams, schedules, charts, schematics, or any other similar material. {8509835:} Woods Oviatt Gibnan LLP 1900 Bausch & Lomb Place Rochester. New York 14604 FILED: ONONDAGA COUNTY CLERK 06/28/2021 04:55 PM INDEX NO. 003917/2021 NYSCEF DOC. NO. 9 RECEIVED NYSCEF: 06/28/2021 "communication" "communications" B. As used herein, and shall mean any transmission of information by one or more persons or between two or more persons by any means including, without limitation, telephone conversations, letters, telegrams, teletypes, telexes, facsimiles, electronic mail, computer transmissions, written memoranda, and face-to-face conversations. "CC&F" C. As used in this request, "plaintiff", "you", "your", or shall mean Costello, Cooney & Fearon, PLLC, and shall include any present or former members, partners, owners, employees, representatives, assigns, advisors, attorneys or agents. "person" D. As used in this request, means any individual, firm, corporation, partnership, unincorporated association, trust, as well as any other legal, business, regulatory or governmental entity. "relating" "relate" E. Documents or that to any given subject shall mean, without limitation, any document that, in whole or in part, constitutes, comprises, contains, discusses, embodies, reflects, refers to, identifies, states, pertains directly or indirectly to, or is in any way relevant to the particular subject matter identified. F. Whenever used in this request, the singular includes the plural and the plural "and" "or" includes the singular; the words and are to be read as both conj'metive and disjunctive; "including" limitation." the word means "including without G. These requests shall be deemed to relate to any and allrelevant documents and things within your possession, custody or control, including, without limitation, documents and things located in the personal files of any and all past and present directors, officers, agents, representatives, employees, investigators, attorneys and legal representatives, and accoüñtants or others retained by you. {8509835:} 2 Woods Oviatt Gilman LLP 1900 Bausch & Lomb Place Rochester. New York 14604 FILED: ONONDAGA COUNTY CLERK 06/28/2021 04:55 PM INDEX NO. 003917/2021 NYSCEF DOC. NO. 9 RECEIVED NYSCEF: 06/28/2021 H. Documents from any single file shall be produced in the same order as they were found in such file,and the files from which they are being produced shall be identified. If copies of documcats are produced in lieu of the originals, such copies should be legible and bound or stapled in the same manner as the original. I. If the production of any documents and things responsive to these requests is objected to on the ground of privilege or work product, or for any other reason, with respect to each such document state: (a) the identity of itsauthor(s) or creator(s); (b) the identity of itsrecipient(s); (c) its subject matter; (d) the identity of the person(s) to whom the document or any portion thereof has already been revealed; (e) the source of the document; (f) the date of the document; and (g) the basis upon which itis being withheld. In producing the documents and things requested, indicate the specific request(s) pursuant to which each document or group of documents and things is being produced. J. If any doc=nent that would have been responsive has been destroyed or is otherwise no longer in your possession, custody or control, describe the content of the document, and state the location of all copies of it and state the date of, and identify the person resposible for its destruction, loss, transfer, or other action by which the document left your possession, custody or control. (8509835:} 3 Woods Oviatt Gilman LLP 1900Bausch & Lomb Place Ilochester. New York 14604 FILED: ONONDAGA COUNTY CLERK 06/28/2021 04:55 PM INDEX NO. 003917/2021 NYSCEF DOC. NO. 9 RECEIVED NYSCEF: 06/28/2021 K. These document requests are intended as continuing requests. Accordingly, any documents requested herein, which are not now in your possession, but which later come into your possessien, are to be disclosed at such later time as they come into your possession. DOCUMENTS TO BE PRODUCED 1. Complete copy of Plaintiffs Operating Agreement, with any amendments. 2. All documents propagated pursuant to the Operating Agreement which govern policies, practices, and/or procedures for calculating compensation to the members (or "Partners") of CC&F that have been in effect from 2017 to the present. 3. All documents referring or relating to the authority of the Executive "Accouñt" Cessince to make determinations regarding the maintenance of specific computations as referenced in Paragraph 8 of Plaintiff's Complaint. 4. All documents and things, including electronic comm==!cations and records of telephone conversations, referring or relating to the withdrawal of Ms. Bowe as a Partner of CC&F. 5. All documents and things, including electronic correlcations and records of telephone conversations, referring or relating to entering into an Of Counsel Agreement with CC&F to work as an independent contractor as set forth in Paragraph 14 of Plaintiffs Complaint. 6. A copy of the fully executed Of Counsel Agreement referred to in Plaintiffs Complaint. 7. All documents and things which document Ms. Bowe's billing records from November 23, 2020 to the present. 8. All documents and things which deement records of all fees actually paid and received as the result of Ms. Bowe's services from November 23, 2020 to the present. (8509835:) Woods Oviatt GilnW1 LLP 1900 Bausch & l amb Place Rochester. New 1ork L4604 FILED: ONONDAGA COUNTY CLERK 06/28/2021 04:55 PM INDEX NO. 003917/2021 NYSCEF DOC. NO. 9 RECEIVED NYSCEF: 06/28/2021 9. All documents and things which document records of all fees generated by other CC&F time keepers actually paid and received by CC&F for clients originated by Ms. Bowe from November 23, 2020 to the present. 10. All documents and things which refer or relate to monies paid out to Ms. Bowe subsequent to November 23, 2020. 11. All documents and things which document compensation paid to CC&F partners during the 2020 calendar year. 12. All documents and things which decament the year-end statistics of all CC&F Partners for the 2020 calendar year, including the number of billable hours worked and fees originated and/or received. 13. Copies of all federal, state, and local tax returns for CC&F, i=!=Æng all fixed asset and appreciation schedules and supplemental schedules for each fiscal year for the reporting periods beginning January 1, 2017 to the present. 14. All documents regarding the application by CC&F for a "PPP loan". 15. All documents referring or relating to an application by CC&F for PPP loan forgiveness. "reclassifying" 16. All documents referring or relating to CC&F partnership compensation and income from calendar year 2020 to calendar year 2021. 17. All documents and things exchanged with Bowers & Company referring or relating to CC&F's finances, accounting, records, tax preparation or other services provided by Bowers & Company for 2020 and 2021. (8509835:} 5 Woods Oviatt Gilman LLP 1900Bausch & Lomb Place Ilochester. New York I4004 FILED: ONONDAGA COUNTY CLERK 06/28/2021 04:55 PM INDEX NO. 003917/2021 NYSCEF DOC. NO. 9 RECEIVED NYSCEF: 06/28/2021 18. All documents upon which CC&F will rely for the proposition that Ms. Bowe is required to pay to CC&F the amount of a negative capital account after separation from the partnership. 19. All documents not produced which Plaintiff intends to produce or already rely upon at a trial of this case. PLEASE TAKE FURTHER NOTICE that each of the foregoing demands is of a continuing nature and to the extent the response to any demed may change, such response should be supplemented immediately upon discovery of the change. UPON YOUR FAILURE TO COMPLY, the undersigned reserves the right to move to preclude evidence, testing and/or instructions relating to the subject issue or seek other relief as is proper. DATED: June 18, 2021 Rochester, New York WOODS OVIATT GILMAN LLP By: s:/ Greta K. Kolcon Greta K. Kolcon, Esq. Attorneys for Defendant 1900 Bausch & Lomb Place Rochester, New York 14604 585.987.2800 TO: Robert J. Smith, Esq. Attorneys for Plaintiff 211 West Jefferson Street Syracuse, NY 13202 315.422.1152 (8509835:} 6 Woods Oviatt Gilman LLP 1900 Bausch & Lomb Place Rochester, New York 14604