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FILED: ONONDAGA COUNTY CLERK 02/24/2022 06:07 PM INDEX NO. 003917/2021
NYSCEF DOC. NO. 30 RECEIVED NYSCEF: 02/24/2022
EXHIBIT “F”
FILED: ONONDAGA COUNTY CLERK 02/24/2022 06:07 PM INDEX NO. 003917/2021
NYSCEF DOC. NO. 30 RECEIVED NYSCEF: 02/24/2022
STATF, OF NEW YORK
SUPREME COURT COUNTY OF ONONDAGA
COSTELLO, COONEY & FEARON, PLLC, Index No. 003917/2021
Hon. Deborah H. Karalunas, J.S.C.
Plaintiff,
-vs- FIRST NOTICE
TO PRODUCE
MELINDA BURDICK BOWE,
Defendant.
PLEASE TAKE NOTICE that pursuant to CPLR §§ 3101(a) and 3120(a), the plaintiff
Costello, Cooney & Fearon, PLLC ("CC&F"), hereby demands that the Defendant, produce the
following documents and materials for inspection, or leave to make a photocopy of at the offices of
Costello, Cooney & Fearon, PLLC, 211 West Jefferson Street, Syracuse, New York 13202, at
13t
8 10:00 a.m. on the day of November, 2021.
Unless otherwise stated, this request pertains to a period commencing on March 17, 2017
and the Defendant is required to produce any and all documents pertaining to this entire period.
Any and alldocuments are to be divulged, whether such documents are in the possession of
the Defendant, her attorneys, agents or representatives.
These document requests are intended as continuing requests. Accordingly, any
document requested herein which are not now in the . possession of the Defendant or the
representatives as stated above, but which later come into her possession, are to be disclosed at
such a later time as they come into the Defendant's possession.
Photocopies of the documents described herein may be supplied to the undersigned on or
before November 1, 2021 in lieu of actual production of these documents, so long as the original
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documents are preserved by the Defendant or her counsel and produced at any examination before
trial and upon the trial of this action.
DEFINITIONS
The following definitions shall apply to the request for document production.
1. Wherever appropriate in these demands the singular form of a word shall be
interpreted as plural. Wherever any item would be encompassed by a demand herein if one or
more words were changed from a singular form to a plural form and/or one or more words were
changed from a plural form to a singular form, such item shall be treated as encompassed in such
demand.
2. Each request listed herein shall be construed to include any supplemental
information, knowledge or data in response to these requests which is later discovered by
Defendant.
"And" "or"
3. as well as shall be construed either disjunctively or conjunctively as
necessary to bring within the scope of these requests any information which might otherwise be
construed to be outside their scope.
4. Defendant is required to furnish all information in her possession and/or control
and all information available to her, not merely such information as she knows of through her own
personal knowledge but also all knowledge which is available to Defendant, her accountants
agents, attorneys, spouse, children, employees, servants, consultants, contractors, representatives,
investigators, tax preparers, technical consultants, and any other person or entity acting on her
behalf, by reason of inquiry including inquiry of their representatives.
5. Unless otherwise specified, these Requests shall apply to the period of March 17,
2017, to present.
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6. If Defendant is unable to respond to any of the following requests completely,
respond to the extent possible, specifically stating the reason for her inability to respond to the
remainder and stating whatever information or knowledge she has the unresponded
coileeming
portion.
"person"
7. The term means any natural person, firm, corporation, partnership,
association, organization, team or group of natural persons or public entity.
behalf"
8. The term "anyone acting on your includes Defendant and her accountants,
agents, attorneys, spouse, children, eniployees, servants, consultants, contractors, investigators,
tax preparers, technical consultants, representatives or any person or entity acting on her behalf.
"ceilliliunication"
9. The term means and includes all tangible forms of human
comm.unication, exchange or expression including those electronically or digitally created,
transmitted or stored, including but not limited to, letters, emails, correspondence, confirmations,
acknowledgments, voice mail, recordings, tapes, reports, memoranda, messages, books, drawings,
photographs, publications, diaries, contracts, receipts, vouches, magnetic or phonographic
recordings, statements, invoices, canceled checks or copies or reductions of any of the foregoing
now in the possession, care, custody or control (actual or constructive) of Defendant.
"Complaint"
10. The term means and includes CC&F's Complaint in this action.
"Answer"
11. The term means and shall include Defendant's Answer, including all
affirmative defenses and counterclaim(s) in this action.
"custodian"
12. The term refers to the person having possession, custody or control
of any writing or physical evidence.
documents"
13. The term "all means every document as above defined known to
plaintiff and her accountants, agents, attorneys, employees, servants, consultants, contractors,
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representatives, investigators, technicM consultants and other person or on her
any entity acting
behalf, and every such document which can be located or discovered by diligent
reaseiiably
efforts.
"document"
14. The term is defined to include all tangible things by which human
communication is transmitted or stored, including those in paper form and those electronically
created, transmitted or stored, including but not limited to, letters, reports, meilieraiida, books,
drawings, photographs, publications, diaries, contracts, receipts, vouchers, magnetic, electronic,
digital or phonographic recordings, statements, invoices, canceled checks or copies or reductions
of any of the foregoing now in the possession, care, custody or control (actual or constructive) of
plaintiff.
"writing"
15. The term means any and all handwritten material, typewritten material,
printed material, photocopies, photographs and every other means of recording upon any
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tangible thing, together with any form of communication or other representation which would
constitute a writing within the meaning of the Civil Practice Law and Rules.
"document" "writing"
16. The terms and are further defined to include all things
which are electronically or digitally created, transmitted or stored.
identification" "identify"
17. The terms "set forth an or mean to describe a writing
with such particularity as you would require in a motion to produce or document description
contained in a subpoena duces tecum.
to" to"
18. The terms "relates or "related mean documents or information that
support, constitute, form the basis of, memorialize or evidence the information otherwise
described or requested in the request.
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Agreement"
19. The term "Operating means and shall refer to CC&F's Operating
Agreement, entered into between Defendant and other members of CC&F effective March 17,
2017, as set forth in the Complaint, and any amendments thereto.
"member" "partner"
20. The terms or mean and shall refer to the members of CC&F as
"A"
set forth in Exhibit of the Operating Agreement.
Agreement"
21. The term "Of Counsel means and shall refer to the Of Counsel
Agreement entered into between CC&F and Defendant, effective December 1, 2020, as set forth in
the Complaint and Defendant's First Counterclaim.
Account"
22. The term "Capital means and shall refer to Defendant's Capital
Account, maintained beginning March 17, 2017 for CC&F's day-to-day working capital as
necessary for operating expenses.
"Withdrawal"
23. The term means and shall refer to Defendant's withdrawal as a
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member of CC&F, on or about November 23, 2020 and as permitted .under the terms of the
Operating Agreement.
Resignation"
24. The term "Voluntary means and shall refer to Defendant's
unilateral termination of her Of Counsel Agreement on April 18, 2021 and discontinuation of her
independent contractor relationship with CC&F.
"Draw"
25. The term means and shall refer to the bi-monthly advances made to
Defendant toward any compensation earned pursuant to the terms of the Of Counsel Agreement.
"Distribution"
26. The term means and shall refer to any distribution or disbursement
of profits or other funds made to Defendant as a member of CC&F from March 17, 2017 to
April 18, 2021
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"Defendant," "Melinda" Bowe"
27. The terms and/or "Ms. mean and shall refer to
Defendant, her accountants, agents, attorneys, spouse, children, employees, servants,
consultants, contractors, investigators, tax preparers, technical consultants, representatives or
any person or entity acting on her behalf.
REQUEST FOR PRODUCTION OF DOCUMENTS
1. Any and all documents relied upon or referenced by Defendant in preparing her
Answer and/or Counterclaim(s).
2. Any and all statements, summaries, reconciliations, reports or other balance sheet
for any checking account, savings accounts, money market account, investment account, escrow
account, CD, or other deposit.ory where Defendant's funds may be maintained for any period of
time, which reflect Defendant's receipt of Draws, Distributions or any other compensation from
CC&F.
3. Any and all statements, summaries, reconciliations, reports or other balance sheet
for any checking account, savings accounts, money market account, investment account, escrow
account, CD, or other depository where Defendant's funds may be maintained for any period of
time, which reflect Defendant's withdrawal or expenditure of any Draws, Distributions or any
other compensation from CC&F from November 1, 2020 to present.
4. Any and all K-1s, W-2s, Form 1099, Form 1040-ES, Form 1040 and Federal and
State tax return for years 2017-2020 which reflect any compensation to Defendant by CC&F, and
corresponding tax liabilities.
5. Any and all communications, including digitally created or stored data such as
e-mails or text messages, with CC&F employees, independent contractors or members, from
January 1, 2020 to present relating to Defendant's move to North Carolina.
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6. Any and all communications, including digitally created or stored data such as
e-mails or text messages, with CC&F employees, independent contractors or members, from
January 1, 2020 to present relating to Defendant's Withdrawal.
7. Any and all commimications, including digitally created or stored data such as
e-mails or text messages, between Defendant and any CC&F client regarding Defendant's move to
North Carolina.
8. Any and all communications, including digitally created or stored data such as
e-mails or text messages, between Defendant and any CC&F client regarding Defendant's
Withdrawal.
9. Any and all non-privileged communications, including digitally created or stored
data such as e-mails or text messages, between Defendant and any CC&F client from
November 23, 2020 to present.
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10. And any all communications, including digitally created or stored data such as
e-mails or text messages, between Defendant and any non-party (excepting Defendant's counsel)
from March 17, 2017 to present, regarding this litigation or its subject-matter, including but not
limited to any communications relating to:
A. Distributions to Defendant;
B. Draws paid to Defendant;
C. Defendant's capital account;
D. Defendant's capital account balance;
E. Any other compensation paid to Defendant;
F. Any other compensation which Defendant claims is owed to her; and
G. The existence of this litigation, or its status.
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11. Any and all communications Defendant received from CC&F, its members,
employees, accountants, Defendant's accountant(s) or tax preparer or any other non-party
(excepting Defendant's counsel) regarding Defendant's Capital Account, any other member's
capital account or CC&F capital accounts generally.
12. Any and alldocuments which refer or relate to Defendant's allegation in paragraph
"6"
enumerated of Defendant's Answer that one or more of CC&F's causes of action are barred by
the doctrine of unclean hands.
13. Any and all documents which refer or relate to Defendant's contentions in
"7"
paragraph enumerated of Defendant's Answer that CC&F lacks standing to assert one of more
of itscauses of action.
14. Any and all documents which refer or relate to Defendant's further assertions
"7"
within paragraph enumerated of Defendant's Answer that CC&F lacks capacity to assert one
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or more of its causes of action.
15. Any and all documents which refer or relate to Defendant's allegation in paragraph
"8"
enumerated of Defendant's Answer that CC&F is estopped from claiming entitlement to any
recovery.
16. Any and all documents which refer or relate to Defendant's contentions in
"9"
paragraph enumerated of Defendant's Answer that one or more of CC&F's causes of action
are barred, in whole or in part, by CC&F's waiver.
17. Any and all documents which refer or relate to Defendant's assertions within
"10"
paragraph enumerated of Defendant's Answer that CC&F's claims for damages are due to
CC&F's own failures.
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18. Any and all documents which refer or relate to Defendant's further allegations in
"10"
paragraph enumerated of Defendant's Answer that CC&F's claims for damages are due to
CC&F's own omissions.
19. Any and all documents which refer or relate to Defendant's additional contentions
"10"
in paragraph enumerated of Defendant's Answer that CC&F's claims for damages are due to
CC&F's own conduct.
20. Any and all documents which refer or relate to Defendant's further assertions
"10"
within paragraph enumerated of Defendant's Answer that CC&F's claims for damages are
due to CC&F's own negligence.
21. Any and all documents which refer or relate to Defendant's allegation in paragraph
"11"
enumerated of Defendant's Answer that CC&F failed to mitigate its claimed damages.
22. Any and all documents which refer or relate to Defendant's contentions in
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"12"
paragraph enumerated of Defendant's Answer that one or more of CC&F's causes of action
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o are in whole or in CC&F's documents.
barred, part, by governing
23. Any and all documents which refer or relate to Defendant's contentions in
"13"
paragraph enumerated of Defendant's Answer that one or more causes of action are barred, in
whole or in part, by consent.
24. Any and alldocuments which refer or relate to Defendant's further assertion within
"13"
paragraph enumerated of Defendant's Answer that one or more causes of action are barred, in
whole or in part, by ratification.
25. Any and all documents which refer or relate to Defendant's additional allegation in
"13"
paragraph enumerated of Defendant's Answer that one or more causes of action are barred, in
whole or in part, by acquiescence.
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26. Any and all documents which refer or relate to Defendant's allegations in
"15"
paragraph enumerated of Defendant's Answer that CC&F's injury is due to the acts or
omissions of persons other than Defendant.
27. Any and all documents which refer or relate to Defendant's assertion within
"16"
paragraph enumerated of the Answer that CC&F has failed to include allnecessary parties.
28. Any and all documents which refer or relate to Defendant's contention in paragraph
"18"
enumerated of the Answer that one or more of CC&F's causes of action are barred by
anticipatory breach of contract on behalf of CC&F.
29. Any and all documents which refer or relate to Defendant's allegation in paragraph
"23"
enumerated of Defendant's Answer that there was an absence of any fiduciary duty, in law,
equity, or contract owed by Defendant to CC&F.
30. Any and alldocuments which refer or relate to Defendant's allegation in paragraph
"30"
enumerated of Defendant's Answer that Defendant was promised continued compensation
o for clients which she originated for the benefit of CC&F.
31. Any and all documents which refer or related to the further contentions in
"30"
paragraph enumerated of Defendant's Answer that Defendant was induced to enter into the
Of Counsel Agreement.
32. Any and all documents which refer or relate to the additional assertions within
"30"
paragraph enumerated of Defendant's Answer that Defendant's corspensation for clients she
originated for the benefit of CC&F was included in the Of Counsel Agreement.
33. Any and all documents which refer or relate to the allegation in paragraph
"32"
enumerated of Defendant's Answer that CC&F advise Defendant it no longer intended to
provide her with compensation pursuant to the Of Counsel Agreement.
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34. Any and all documents which refer or relate to the further contention in paragraph
"32"
enumerated of Defendant's Answer that CC&F was required to make a bi-monthly draw
payment to Defendant.
35. Any and all documents which refer or relate to the assertion within paragraph
"33"
enumerated of Defendant's Answer that CC&F refused to provide Defendant with
conipensation rightfully earned under the terms of the Of Counsel Agreement.
36. Any and all documents which refer or relate to Defendant's alleged damages
suffered as a result of CC&F's purported breach of contract.
37. Any and alldocuments which refer or relate to Defendant's allegation in paragraph
"38"
enumerated of Defendant's Answer that CC&F's action were taken intentionally to frustrate
the purpose of a contract.
38. Any and all documents which refer or relate to Defendant's further contentions in
"38"
paragraph enumerated of Defendant's Answer that CC&F's omissions were taken
intentionally to frustrate the purpose of a contract.
39. Any and all documents which refer or relate to Defendant's additional assertion
"38"
within paragraph enumerated of Defendant's Answer that CC&F's action were taken to
deprive Defendant of the benefits of the Of Counsel Agreement.
40. Any and all documents which refer or relate to Defendant's further allegation in
"38"
paragraph enumerated of Defendant's Answer that CC&F's omissions were taken to deprive
Defendant of the benefits of the Of Counsel Agreement.
41. Any and all documents which refer or relate to Defendant's additional contention in
"38"
paragraph enumerated of Defendant's Answer that CC&F's actions were taken to deprive
Defendant of the express terms of the Operating Agreement.
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42. Any and alldocuments which refer or relate to Defendant's further assertion within
"38"
paragraph enumerated of Defendant's Answer that CC&F's omissions were taken to deprive
Defendant of the express terms of the Operating Agreement.
43. Any and all documents which refer or relate to Defendant's alleged damages
suffered as a result of CC&F's supposed breach of the duty of good faith and fair dealing.
44. Any and alldocuments which refer or relate to Defendant's allegation in paragraph
"43"
enumerated of Defendant's Answer that CC&F advised Defendant itwould not pay her any
compensation earned by Defendant pursuant to the Of Counsel Agreement.
45. Any and alldocuments which refer or relate to Defendant's contention in paragraph
"44"
enumerated of Defendant's Answer that CC&F's action were taken intentionally to convert
clients originated by Defendant.
46. Any and all documents which refer or relate to Defendant's further assertion
"44"
within paragraph enumerated of Defendant's Answer that CC&F's action were taken
intentionally to deprive Defendant of all legal titleto origination fees.
47. Any and all documents which refer or relate to Defendant's additional allegation in
"44"
paragraph enumerated of Defendant's Answer that CC&F's actions were taken intentionally
to deprive Defendant of allinterest in origination fees.
48. Any and all documents which refer or relate to Defendant's further contention in
"44"
paragraph enumerated of Defendant's Answer that CC&F's actions were taken intentionally
to deprive Defendant of all legal title to other compensation agreed upon.
49. Any and all documents which refer or relate to Defendant's additional assertion in
"44"
paragraph enumerated of Defendant's Answer that CC&F's actions were taken intentionally
to deprive Defendant of all interest in other compensation agreed upon.
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50. Any and all documents which refer or relate to the value of legal services rendered
to any wrongfully converted clients.
51. Any and all documents which refer or relate to Defendant's allegation in paragraph
"47"
enumerated of Defendant's Answer that Defendant provided legal services to CC&F.
52. Any and all documents which refer or relate to Defendant's further contention in
"47"
paragraph enumerated of Defendant's Answer that Defendant provided other valuable
consideration to CC&F.
53. Any and all documents which refer or relate to Defendant's assertion within
"49"
paragraph enumerated of Defendant's Answer that CC&F has refused to pay Defendant for
the value of her legal services.
54. Any and all documents which refer or relate to Defendant's further allegation in
"49"
paragraph enumerated of Defendant's Answer that CC&F has refused to pay Defendant for
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the value of other consideration.
8 all additional contention in
55. Any and documents which refer or relate to Defendant's
"49"
paragraph enumerated of Defendant's Answer that Defendant has not received the value of
the payment she is entitled to.
56. Any and alldocuments which refer or relate to Defendant's further assertion within
"49"
paragraph enumerated of Defendant's Answer that Defendant has not received the value of
the merit that she is entitled to.
57. Any and all documents which refer or relate to Defendant's damages claimed
"50"
within paragraph enumerated of Defendant's Answer.
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58. Any and all documents which refer or relate to Defendant's allegation in paragraph
"54"
enumerated of Defendant's Answer that CC&F's action in attempting to collect a claimed
debt from Defendant constitutes a breach of contract of the Operating Agreement.
59. Any and all documents which refer or relate to Defendant's further contention in
"54"
paragraph enumerated of Defendant's Answer that CC&F's inaction in attempting to collect
a claimed debt from Defendant constitutes a breach of contract of the Operating Agreement.
60. Any and all documents which refer or relate to the additional assertions within
"54"
paragraph enumerated of Defendant's Answer that CC&F engaged in additional acts which
constitute a breach of contract of the Operating Agreement.
61. Any and alldocuments which refer or relate to the further allegations in paragraph
"54"
enumerated of Defendant's Answer that CC&F engaged in additional omissions which
constitute a breach of contract of the Operating Agreement.
62. Any and all documents which refer or relate to Defendant's claimed damages as a
result of CC&F's purported breach of contract of the Operating Agreement.
63. Any and all documents which refer or relate to Defendant's contentions in
"60"
paragraph enumerated of Defendant's Answer that CC&F has been unjustly enriched by
obtaining Defendant's substantial labor.
64. Any and all documents which refer or relate to Defendant's further assertions
"60"
within paragraph enumerated of Defendant's Answer that CC&F has been unjustly enriched
by obtaining Defendant's work product.
65. Any and all documents which refer or relate to Defendant's further allegations in
"60"
paragraph enumerated of Defendant's Answer that CC&F has been unjustly enriched by
obtaining Defendant's skills.
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66. Any and alldocuments which refer or relate to Defendant's additional contention in
"60"
paragraph enumerated of Defendant's Answer that CC&F has been unjustly enriched by
obtaining Defendant's time.
67. Any and all documents which refer or relate to Defendant's further assertions
"60"
within paragraph enumerated of Defendant's Answer that CC&F has been enriched
unjustly
by obtaining Defendant's business contacts.
68. Any and all documents which refer or relate to Defendant's claimed compensatory
damages due to CC&F's purported unjust enrichment.
PLEASE TAKE FURTHER NOTICE, that in the event of failure or refusal to comply
with any of these demands, said defendant will apply to the Court for an order compelling
compliance pursuant to CPLR 3124.
PLEASE TAKE FURTHER NOTICE, that said demands shall be deemed to continue
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during the pendency of this action, including the trial thereof.
DATED: September 30, 2021 COSTELLO, COONEY & FEARON, PLLC
PAUf G. FERRARA
Attorneys for the Plaintiff,
Costello, Cooney & Fearon, PLLC
Office and Post Office Address
211 West Jefferson Street
Syracuse, NY 13202
Telephone: (315) 422-1152
TO: WOODS OVIATT GILMAN, LLP
Preview
FILED: ONONDAGA COUNTY CLERK 02/24/2022 06:07 PM INDEX NO. 003917/2021 NYSCEF DOC. NO. 30 RECEIVED NYSCEF: 02/24/2022 EXHIBIT “F” FILED: ONONDAGA COUNTY CLERK 02/24/2022 06:07 PM INDEX NO. 003917/2021 NYSCEF DOC. NO. 30 RECEIVED NYSCEF: 02/24/2022 STATF, OF NEW YORK SUPREME COURT COUNTY OF ONONDAGA COSTELLO, COONEY & FEARON, PLLC, Index No. 003917/2021 Hon. Deborah H. Karalunas, J.S.C. Plaintiff, -vs- FIRST NOTICE TO PRODUCE MELINDA BURDICK BOWE, Defendant. PLEASE TAKE NOTICE that pursuant to CPLR §§ 3101(a) and 3120(a), the plaintiff Costello, Cooney & Fearon, PLLC ("CC&F"), hereby demands that the Defendant, produce the following documents and materials for inspection, or leave to make a photocopy of at the offices of Costello, Cooney & Fearon, PLLC, 211 West Jefferson Street, Syracuse, New York 13202, at 13t 8 10:00 a.m. on the day of November, 2021. Unless otherwise stated, this request pertains to a period commencing on March 17, 2017 and the Defendant is required to produce any and all documents pertaining to this entire period. Any and alldocuments are to be divulged, whether such documents are in the possession of the Defendant, her attorneys, agents or representatives. These document requests are intended as continuing requests. Accordingly, any document requested herein which are not now in the . possession of the Defendant or the representatives as stated above, but which later come into her possession, are to be disclosed at such a later time as they come into the Defendant's possession. Photocopies of the documents described herein may be supplied to the undersigned on or before November 1, 2021 in lieu of actual production of these documents, so long as the original FILED: ONONDAGA COUNTY CLERK 02/24/2022 06:07 PM INDEX NO. 003917/2021 NYSCEF DOC. NO. 30 RECEIVED NYSCEF: 02/24/2022 documents are preserved by the Defendant or her counsel and produced at any examination before trial and upon the trial of this action. DEFINITIONS The following definitions shall apply to the request for document production. 1. Wherever appropriate in these demands the singular form of a word shall be interpreted as plural. Wherever any item would be encompassed by a demand herein if one or more words were changed from a singular form to a plural form and/or one or more words were changed from a plural form to a singular form, such item shall be treated as encompassed in such demand. 2. Each request listed herein shall be construed to include any supplemental information, knowledge or data in response to these requests which is later discovered by Defendant. "And" "or" 3. as well as shall be construed either disjunctively or conjunctively as necessary to bring within the scope of these requests any information which might otherwise be construed to be outside their scope. 4. Defendant is required to furnish all information in her possession and/or control and all information available to her, not merely such information as she knows of through her own personal knowledge but also all knowledge which is available to Defendant, her accountants agents, attorneys, spouse, children, employees, servants, consultants, contractors, representatives, investigators, tax preparers, technical consultants, and any other person or entity acting on her behalf, by reason of inquiry including inquiry of their representatives. 5. Unless otherwise specified, these Requests shall apply to the period of March 17, 2017, to present. -2- FILED: ONONDAGA COUNTY CLERK 02/24/2022 06:07 PM INDEX NO. 003917/2021 NYSCEF DOC. NO. 30 RECEIVED NYSCEF: 02/24/2022 6. If Defendant is unable to respond to any of the following requests completely, respond to the extent possible, specifically stating the reason for her inability to respond to the remainder and stating whatever information or knowledge she has the unresponded coileeming portion. "person" 7. The term means any natural person, firm, corporation, partnership, association, organization, team or group of natural persons or public entity. behalf" 8. The term "anyone acting on your includes Defendant and her accountants, agents, attorneys, spouse, children, eniployees, servants, consultants, contractors, investigators, tax preparers, technical consultants, representatives or any person or entity acting on her behalf. "ceilliliunication" 9. The term means and includes all tangible forms of human comm.unication, exchange or expression including those electronically or digitally created, transmitted or stored, including but not limited to, letters, emails, correspondence, confirmations, acknowledgments, voice mail, recordings, tapes, reports, memoranda, messages, books, drawings, photographs, publications, diaries, contracts, receipts, vouches, magnetic or phonographic recordings, statements, invoices, canceled checks or copies or reductions of any of the foregoing now in the possession, care, custody or control (actual or constructive) of Defendant. "Complaint" 10. The term means and includes CC&F's Complaint in this action. "Answer" 11. The term means and shall include Defendant's Answer, including all affirmative defenses and counterclaim(s) in this action. "custodian" 12. The term refers to the person having possession, custody or control of any writing or physical evidence. documents" 13. The term "all means every document as above defined known to plaintiff and her accountants, agents, attorneys, employees, servants, consultants, contractors, -3- FILED: ONONDAGA COUNTY CLERK 02/24/2022 06:07 PM INDEX NO. 003917/2021 NYSCEF DOC. NO. 30 RECEIVED NYSCEF: 02/24/2022 representatives, investigators, technicM consultants and other person or on her any entity acting behalf, and every such document which can be located or discovered by diligent reaseiiably efforts. "document" 14. The term is defined to include all tangible things by which human communication is transmitted or stored, including those in paper form and those electronically created, transmitted or stored, including but not limited to, letters, reports, meilieraiida, books, drawings, photographs, publications, diaries, contracts, receipts, vouchers, magnetic, electronic, digital or phonographic recordings, statements, invoices, canceled checks or copies or reductions of any of the foregoing now in the possession, care, custody or control (actual or constructive) of plaintiff. "writing" 15. The term means any and all handwritten material, typewritten material, printed material, photocopies, photographs and every other means of recording upon any 8 tangible thing, together with any form of communication or other representation which would constitute a writing within the meaning of the Civil Practice Law and Rules. "document" "writing" 16. The terms and are further defined to include all things which are electronically or digitally created, transmitted or stored. identification" "identify" 17. The terms "set forth an or mean to describe a writing with such particularity as you would require in a motion to produce or document description contained in a subpoena duces tecum. to" to" 18. The terms "relates or "related mean documents or information that support, constitute, form the basis of, memorialize or evidence the information otherwise described or requested in the request. -4- FILED: ONONDAGA COUNTY CLERK 02/24/2022 06:07 PM INDEX NO. 003917/2021 NYSCEF DOC. NO. 30 RECEIVED NYSCEF: 02/24/2022 Agreement" 19. The term "Operating means and shall refer to CC&F's Operating Agreement, entered into between Defendant and other members of CC&F effective March 17, 2017, as set forth in the Complaint, and any amendments thereto. "member" "partner" 20. The terms or mean and shall refer to the members of CC&F as "A" set forth in Exhibit of the Operating Agreement. Agreement" 21. The term "Of Counsel means and shall refer to the Of Counsel Agreement entered into between CC&F and Defendant, effective December 1, 2020, as set forth in the Complaint and Defendant's First Counterclaim. Account" 22. The term "Capital means and shall refer to Defendant's Capital Account, maintained beginning March 17, 2017 for CC&F's day-to-day working capital as necessary for operating expenses. "Withdrawal" 23. The term means and shall refer to Defendant's withdrawal as a 8 member of CC&F, on or about November 23, 2020 and as permitted .under the terms of the Operating Agreement. Resignation" 24. The term "Voluntary means and shall refer to Defendant's unilateral termination of her Of Counsel Agreement on April 18, 2021 and discontinuation of her independent contractor relationship with CC&F. "Draw" 25. The term means and shall refer to the bi-monthly advances made to Defendant toward any compensation earned pursuant to the terms of the Of Counsel Agreement. "Distribution" 26. The term means and shall refer to any distribution or disbursement of profits or other funds made to Defendant as a member of CC&F from March 17, 2017 to April 18, 2021 -5- FILED: ONONDAGA COUNTY CLERK 02/24/2022 06:07 PM INDEX NO. 003917/2021 NYSCEF DOC. NO. 30 RECEIVED NYSCEF: 02/24/2022 "Defendant," "Melinda" Bowe" 27. The terms and/or "Ms. mean and shall refer to Defendant, her accountants, agents, attorneys, spouse, children, employees, servants, consultants, contractors, investigators, tax preparers, technical consultants, representatives or any person or entity acting on her behalf. REQUEST FOR PRODUCTION OF DOCUMENTS 1. Any and all documents relied upon or referenced by Defendant in preparing her Answer and/or Counterclaim(s). 2. Any and all statements, summaries, reconciliations, reports or other balance sheet for any checking account, savings accounts, money market account, investment account, escrow account, CD, or other deposit.ory where Defendant's funds may be maintained for any period of time, which reflect Defendant's receipt of Draws, Distributions or any other compensation from CC&F. 3. Any and all statements, summaries, reconciliations, reports or other balance sheet for any checking account, savings accounts, money market account, investment account, escrow account, CD, or other depository where Defendant's funds may be maintained for any period of time, which reflect Defendant's withdrawal or expenditure of any Draws, Distributions or any other compensation from CC&F from November 1, 2020 to present. 4. Any and all K-1s, W-2s, Form 1099, Form 1040-ES, Form 1040 and Federal and State tax return for years 2017-2020 which reflect any compensation to Defendant by CC&F, and corresponding tax liabilities. 5. Any and all communications, including digitally created or stored data such as e-mails or text messages, with CC&F employees, independent contractors or members, from January 1, 2020 to present relating to Defendant's move to North Carolina. FILED: ONONDAGA COUNTY CLERK 02/24/2022 06:07 PM INDEX NO. 003917/2021 NYSCEF DOC. NO. 30 RECEIVED NYSCEF: 02/24/2022 6. Any and all communications, including digitally created or stored data such as e-mails or text messages, with CC&F employees, independent contractors or members, from January 1, 2020 to present relating to Defendant's Withdrawal. 7. Any and all commimications, including digitally created or stored data such as e-mails or text messages, between Defendant and any CC&F client regarding Defendant's move to North Carolina. 8. Any and all communications, including digitally created or stored data such as e-mails or text messages, between Defendant and any CC&F client regarding Defendant's Withdrawal. 9. Any and all non-privileged communications, including digitally created or stored data such as e-mails or text messages, between Defendant and any CC&F client from November 23, 2020 to present. 8 10. And any all communications, including digitally created or stored data such as e-mails or text messages, between Defendant and any non-party (excepting Defendant's counsel) from March 17, 2017 to present, regarding this litigation or its subject-matter, including but not limited to any communications relating to: A. Distributions to Defendant; B. Draws paid to Defendant; C. Defendant's capital account; D. Defendant's capital account balance; E. Any other compensation paid to Defendant; F. Any other compensation which Defendant claims is owed to her; and G. The existence of this litigation, or its status. -7- FILED: ONONDAGA COUNTY CLERK 02/24/2022 06:07 PM INDEX NO. 003917/2021 NYSCEF DOC. NO. 30 RECEIVED NYSCEF: 02/24/2022 11. Any and all communications Defendant received from CC&F, its members, employees, accountants, Defendant's accountant(s) or tax preparer or any other non-party (excepting Defendant's counsel) regarding Defendant's Capital Account, any other member's capital account or CC&F capital accounts generally. 12. Any and alldocuments which refer or relate to Defendant's allegation in paragraph "6" enumerated of Defendant's Answer that one or more of CC&F's causes of action are barred by the doctrine of unclean hands. 13. Any and all documents which refer or relate to Defendant's contentions in "7" paragraph enumerated of Defendant's Answer that CC&F lacks standing to assert one of more of itscauses of action. 14. Any and all documents which refer or relate to Defendant's further assertions "7" within paragraph enumerated of Defendant's Answer that CC&F lacks capacity to assert one 8 or more of its causes of action. 15. Any and all documents which refer or relate to Defendant's allegation in paragraph "8" enumerated of Defendant's Answer that CC&F is estopped from claiming entitlement to any recovery. 16. Any and all documents which refer or relate to Defendant's contentions in "9" paragraph enumerated of Defendant's Answer that one or more of CC&F's causes of action are barred, in whole or in part, by CC&F's waiver. 17. Any and all documents which refer or relate to Defendant's assertions within "10" paragraph enumerated of Defendant's Answer that CC&F's claims for damages are due to CC&F's own failures. -8- FILED: ONONDAGA COUNTY CLERK 02/24/2022 06:07 PM INDEX NO. 003917/2021 NYSCEF DOC. NO. 30 RECEIVED NYSCEF: 02/24/2022 18. Any and all documents which refer or relate to Defendant's further allegations in "10" paragraph enumerated of Defendant's Answer that CC&F's claims for damages are due to CC&F's own omissions. 19. Any and all documents which refer or relate to Defendant's additional contentions "10" in paragraph enumerated of Defendant's Answer that CC&F's claims for damages are due to CC&F's own conduct. 20. Any and all documents which refer or relate to Defendant's further assertions "10" within paragraph enumerated of Defendant's Answer that CC&F's claims for damages are due to CC&F's own negligence. 21. Any and all documents which refer or relate to Defendant's allegation in paragraph "11" enumerated of Defendant's Answer that CC&F failed to mitigate its claimed damages. 22. Any and all documents which refer or relate to Defendant's contentions in 8 "12" paragraph enumerated of Defendant's Answer that one or more of CC&F's causes of action 8 o are in whole or in CC&F's documents. barred, part, by governing 23. Any and all documents which refer or relate to Defendant's contentions in "13" paragraph enumerated of Defendant's Answer that one or more causes of action are barred, in whole or in part, by consent. 24. Any and alldocuments which refer or relate to Defendant's further assertion within "13" paragraph enumerated of Defendant's Answer that one or more causes of action are barred, in whole or in part, by ratification. 25. Any and all documents which refer or relate to Defendant's additional allegation in "13" paragraph enumerated of Defendant's Answer that one or more causes of action are barred, in whole or in part, by acquiescence. -9- FILED: ONONDAGA COUNTY CLERK 02/24/2022 06:07 PM INDEX NO. 003917/2021 NYSCEF DOC. NO. 30 RECEIVED NYSCEF: 02/24/2022 26. Any and all documents which refer or relate to Defendant's allegations in "15" paragraph enumerated of Defendant's Answer that CC&F's injury is due to the acts or omissions of persons other than Defendant. 27. Any and all documents which refer or relate to Defendant's assertion within "16" paragraph enumerated of the Answer that CC&F has failed to include allnecessary parties. 28. Any and all documents which refer or relate to Defendant's contention in paragraph "18" enumerated of the Answer that one or more of CC&F's causes of action are barred by anticipatory breach of contract on behalf of CC&F. 29. Any and all documents which refer or relate to Defendant's allegation in paragraph "23" enumerated of Defendant's Answer that there was an absence of any fiduciary duty, in law, equity, or contract owed by Defendant to CC&F. 30. Any and alldocuments which refer or relate to Defendant's allegation in paragraph "30" enumerated of Defendant's Answer that Defendant was promised continued compensation o for clients which she originated for the benefit of CC&F. 31. Any and all documents which refer or related to the further contentions in "30" paragraph enumerated of Defendant's Answer that Defendant was induced to enter into the Of Counsel Agreement. 32. Any and all documents which refer or relate to the additional assertions within "30" paragraph enumerated of Defendant's Answer that Defendant's corspensation for clients she originated for the benefit of CC&F was included in the Of Counsel Agreement. 33. Any and all documents which refer or relate to the allegation in paragraph "32" enumerated of Defendant's Answer that CC&F advise Defendant it no longer intended to provide her with compensation pursuant to the Of Counsel Agreement. -10- FILED: ONONDAGA COUNTY CLERK 02/24/2022 06:07 PM INDEX NO. 003917/2021 NYSCEF DOC. NO. 30 RECEIVED NYSCEF: 02/24/2022 34. Any and all documents which refer or relate to the further contention in paragraph "32" enumerated of Defendant's Answer that CC&F was required to make a bi-monthly draw payment to Defendant. 35. Any and all documents which refer or relate to the assertion within paragraph "33" enumerated of Defendant's Answer that CC&F refused to provide Defendant with conipensation rightfully earned under the terms of the Of Counsel Agreement. 36. Any and all documents which refer or relate to Defendant's alleged damages suffered as a result of CC&F's purported breach of contract. 37. Any and alldocuments which refer or relate to Defendant's allegation in paragraph "38" enumerated of Defendant's Answer that CC&F's action were taken intentionally to frustrate the purpose of a contract. 38. Any and all documents which refer or relate to Defendant's further contentions in "38" paragraph enumerated of Defendant's Answer that CC&F's omissions were taken intentionally to frustrate the purpose of a contract. 39. Any and all documents which refer or relate to Defendant's additional assertion "38" within paragraph enumerated of Defendant's Answer that CC&F's action were taken to deprive Defendant of the benefits of the Of Counsel Agreement. 40. Any and all documents which refer or relate to Defendant's further allegation in "38" paragraph enumerated of Defendant's Answer that CC&F's omissions were taken to deprive Defendant of the benefits of the Of Counsel Agreement. 41. Any and all documents which refer or relate to Defendant's additional contention in "38" paragraph enumerated of Defendant's Answer that CC&F's actions were taken to deprive Defendant of the express terms of the Operating Agreement. -11- FILED: ONONDAGA COUNTY CLERK 02/24/2022 06:07 PM INDEX NO. 003917/2021 NYSCEF DOC. NO. 30 RECEIVED NYSCEF: 02/24/2022 42. Any and alldocuments which refer or relate to Defendant's further assertion within "38" paragraph enumerated of Defendant's Answer that CC&F's omissions were taken to deprive Defendant of the express terms of the Operating Agreement. 43. Any and all documents which refer or relate to Defendant's alleged damages suffered as a result of CC&F's supposed breach of the duty of good faith and fair dealing. 44. Any and alldocuments which refer or relate to Defendant's allegation in paragraph "43" enumerated of Defendant's Answer that CC&F advised Defendant itwould not pay her any compensation earned by Defendant pursuant to the Of Counsel Agreement. 45. Any and alldocuments which refer or relate to Defendant's contention in paragraph "44" enumerated of Defendant's Answer that CC&F's action were taken intentionally to convert clients originated by Defendant. 46. Any and all documents which refer or relate to Defendant's further assertion "44" within paragraph enumerated of Defendant's Answer that CC&F's action were taken intentionally to deprive Defendant of all legal titleto origination fees. 47. Any and all documents which refer or relate to Defendant's additional allegation in "44" paragraph enumerated of Defendant's Answer that CC&F's actions were taken intentionally to deprive Defendant of allinterest in origination fees. 48. Any and all documents which refer or relate to Defendant's further contention in "44" paragraph enumerated of Defendant's Answer that CC&F's actions were taken intentionally to deprive Defendant of all legal title to other compensation agreed upon. 49. Any and all documents which refer or relate to Defendant's additional assertion in "44" paragraph enumerated of Defendant's Answer that CC&F's actions were taken intentionally to deprive Defendant of all interest in other compensation agreed upon. -12- FILED: ONONDAGA COUNTY CLERK 02/24/2022 06:07 PM INDEX NO. 003917/2021 NYSCEF DOC. NO. 30 RECEIVED NYSCEF: 02/24/2022 50. Any and all documents which refer or relate to the value of legal services rendered to any wrongfully converted clients. 51. Any and all documents which refer or relate to Defendant's allegation in paragraph "47" enumerated of Defendant's Answer that Defendant provided legal services to CC&F. 52. Any and all documents which refer or relate to Defendant's further contention in "47" paragraph enumerated of Defendant's Answer that Defendant provided other valuable consideration to CC&F. 53. Any and all documents which refer or relate to Defendant's assertion within "49" paragraph enumerated of Defendant's Answer that CC&F has refused to pay Defendant for the value of her legal services. 54. Any and all documents which refer or relate to Defendant's further allegation in "49" paragraph enumerated of Defendant's Answer that CC&F has refused to pay Defendant for 8 the value of other consideration. 8 all additional contention in 55. Any and documents which refer or relate to Defendant's "49" paragraph enumerated of Defendant's Answer that Defendant has not received the value of the payment she is entitled to. 56. Any and alldocuments which refer or relate to Defendant's further assertion within "49" paragraph enumerated of Defendant's Answer that Defendant has not received the value of the merit that she is entitled to. 57. Any and all documents which refer or relate to Defendant's damages claimed "50" within paragraph enumerated of Defendant's Answer. -13- FILED: ONONDAGA COUNTY CLERK 02/24/2022 06:07 PM INDEX NO. 003917/2021 NYSCEF DOC. NO. 30 RECEIVED NYSCEF: 02/24/2022 58. Any and all documents which refer or relate to Defendant's allegation in paragraph "54" enumerated of Defendant's Answer that CC&F's action in attempting to collect a claimed debt from Defendant constitutes a breach of contract of the Operating Agreement. 59. Any and all documents which refer or relate to Defendant's further contention in "54" paragraph enumerated of Defendant's Answer that CC&F's inaction in attempting to collect a claimed debt from Defendant constitutes a breach of contract of the Operating Agreement. 60. Any and all documents which refer or relate to the additional assertions within "54" paragraph enumerated of Defendant's Answer that CC&F engaged in additional acts which constitute a breach of contract of the Operating Agreement. 61. Any and alldocuments which refer or relate to the further allegations in paragraph "54" enumerated of Defendant's Answer that CC&F engaged in additional omissions which constitute a breach of contract of the Operating Agreement. 62. Any and all documents which refer or relate to Defendant's claimed damages as a result of CC&F's purported breach of contract of the Operating Agreement. 63. Any and all documents which refer or relate to Defendant's contentions in "60" paragraph enumerated of Defendant's Answer that CC&F has been unjustly enriched by obtaining Defendant's substantial labor. 64. Any and all documents which refer or relate to Defendant's further assertions "60" within paragraph enumerated of Defendant's Answer that CC&F has been unjustly enriched by obtaining Defendant's work product. 65. Any and all documents which refer or relate to Defendant's further allegations in "60" paragraph enumerated of Defendant's Answer that CC&F has been unjustly enriched by obtaining Defendant's skills. -14- FILED: ONONDAGA COUNTY CLERK 02/24/2022 06:07 PM INDEX NO. 003917/2021 NYSCEF DOC. NO. 30 RECEIVED NYSCEF: 02/24/2022 66. Any and alldocuments which refer or relate to Defendant's additional contention in "60" paragraph enumerated of Defendant's Answer that CC&F has been unjustly enriched by obtaining Defendant's time. 67. Any and all documents which refer or relate to Defendant's further assertions "60" within paragraph enumerated of Defendant's Answer that CC&F has been enriched unjustly by obtaining Defendant's business contacts. 68. Any and all documents which refer or relate to Defendant's claimed compensatory damages due to CC&F's purported unjust enrichment. PLEASE TAKE FURTHER NOTICE, that in the event of failure or refusal to comply with any of these demands, said defendant will apply to the Court for an order compelling compliance pursuant to CPLR 3124. PLEASE TAKE FURTHER NOTICE, that said demands shall be deemed to continue 8 during the pendency of this action, including the trial thereof. DATED: September 30, 2021 COSTELLO, COONEY & FEARON, PLLC PAUf G. FERRARA Attorneys for the Plaintiff, Costello, Cooney & Fearon, PLLC Office and Post Office Address 211 West Jefferson Street Syracuse, NY 13202 Telephone: (315) 422-1152 TO: WOODS OVIATT GILMAN, LLP