Preview
FILED: ERIE COUNTY CLERK 11/30/2022 06:11 PM INDEX NO. 804173/2020
NYSCEF DOC. NO. 90 RECEIVED NYSCEF: 11/30/2022
Exhibit 10
FILED: ERIE COUNTY CLERK 11/30/2022 06:11 PM INDEX NO. 804173/2020
NYSCEF DOC. NO. 90 RECEIVED NYSCEF: 11/30/2022
Phillips Lytle LLP
Via Hand Delivery September 12, 2022
Moses Insurance
5475 Main Street
Williamsville, New York 14221
Re: IEvolve, Inc. v. Gerald E. Hickson
Index No. 804173/2020
Dear Sir or Madam:
Enclosed for service upon you please find Plaintiff IEvolve, Inc.’s Subpoena Duces
Tecum. Please feel free to give me a call at (716) 847-7024 with any questions or to
arrange production of the documents requested in the Subpoena.
Very truly yours,
Phillips Lytle LLP
By
Jeffrey D. Coren
JDC3
Enclosure
JEFFRE Y D. C ORE N
DIREC T 716 847 7024
J C O R E N @ P HI L L I P S L Y T L E . C O M
A T T O R N E Y S A T L AW
_________
O NE C A N A L S I D E 1 2 5 M A I N S T R E E T B U F F A L O , NE W YO R K 1 4 2 0 3 - 2 8 8 7 P H O N E ( 7 1 6 ) 8 4 7 - 8 4 0 0 F AX ( 7 1 6 ) 8 5 2 - 6 1 0 0 | P H I L L I P S L YT L E . C O M
N E W YO R K : AL B A N Y , B U F F AL O , C H A U T A U Q U A , G AR D E N C I T Y , N E W Y O R K , R O C HE S T E R | W A S H I N G T O N , D C | C A NA D A : W A T E R L O O R E G I O N
FILED: ERIE COUNTY CLERK 11/30/2022 06:11 PM INDEX NO. 804173/2020
NYSCEF DOC. NO. 90 RECEIVED NYSCEF: 11/30/2022
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF ERIE
_________________________________________________
IEVOLVE, INC.,
Plaintiff, SUBPOENA
DUCES TECUM
v.
Index No. 804173/2020
GERALD E. HICKSON,
Defendant.
_________________________________________________
TO: Moses Insurance
5475 Main Street
Williamsville, New York 14221
YOU ARE HEREBY COMMANDED to produce on or before October 7,
2022 at the offices of Phillips Lytle LLP, One Canalside, 125 Main Street, Buffalo, New
York 14203 complete and accurate copies of all documents responsive to the requests in the
attached Exhibit A which are now in your possession, custody, or control for purposes of
inspection and copying. Disclosure is sought from you because you have knowledge
relevant to the allegations in this action; in particular, you have a business relationship with
Defendant concerning IT services. Failure to produce these documents and items may be
deemed a contempt of court and render you liable for a fine of $150.00, as well as all losses
and damages sustained by the party aggrieved.
Dated: Buffalo, New York PHILLIPS LYTLE LLP
September 12, 2022
By:
lig Cir
Jeffrey D. Coren
.,)
Attorneys for Plaintiff IEvolve, Inc.
One Canalside, 125 Main Street
Buffalo, New York 14203-2887
Telephone No. (716) 847-8400
jcoren@phillipslytle.com
FILED: ERIE COUNTY CLERK 11/30/2022 06:11 PM INDEX NO. 804173/2020
NYSCEF DOC. NO. 90 RECEIVED NYSCEF: 11/30/2022
EXHIBIT A
INSTRUCTIONS
A. All responsive documents, wherever located, that are in your
possession, custody or control must be produced.
B. The original or one copy of each document must be produced. Any
copy of a document that varies in any way from the original or from any other copy of the
document, whether by reason of handwritten or other notation or any omission, constitutes
a separate document and must be produced, whether or not the original of such a document
is within your custody or control.
C. Documents must be produced as they are kept in the ordinary course
of business. All documents physically attached to each other when located for production
must be left so attached. Documents segregated or separated from other documents,
whether by use of binders, files, sub-files, or by dividers, tabs, or any other method, must be
left so segregated or separated. All labels or markings on any such binders, files, sub-files,
dividers, tabs, or folders must be produced.
D. If any responsive document is maintained in computer-readable form,
it must be produced (i) in hard copy form, in a format generally used in the ordinary course
of your business or (ii) on disk, tape, or other computer storage medium, with instructions
necessary to convert the information into reasonably usable form (including the name and
version number of the program used to create or read the data).
E. A request for documents includes a request for any or all transmittal
sheets, cover letters, exhibits, enclosures, and attachments to the documents in addition to
the document itself, without abbreviation or expurgation.
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FILED: ERIE COUNTY CLERK 11/30/2022 06:11 PM INDEX NO. 804173/2020
NYSCEF DOC. NO. 90 RECEIVED NYSCEF: 11/30/2022
F. If you refuse to produce any document or part thereof on the basis of a
claim of privilege (including work product), you must identify the nature of the privilege.
You must also provide the following information in the objection: (i) the type of document;
(ii) the general subject matter of the document; (iii) the date of the document; and (iv) such
other information as is sufficient to identify the document for a subpoena duces tecum,
including, where appropriate, the author of the document, the addressees of the document,
and any other recipients shown in the document, and, where not apparent, the relationship
of the author, addressees and recipients to each other.
G. If any request cannot be complied with in full, it must be complied
with to the extent possible, with an explanation of why full compliance is not possible.
H. This request is a continuing one and requires further and supplemental
production by you whenever you acquire, locate, or create additional documents between
the time of the initial production and the time of trial.
I. With respect to any document described in this request that once
existed, but has been destroyed or discarded, or is otherwise not capable of being produced,
identify each such document and set forth the following information: the date of the
document; a description of the subject matter of the document; the name and addresses of
each person who prepared, received, viewed, or had possession, custody, or control of the
document; and a statement of circumstances under which the document was destroyed or
discarded or why such document is not capable of being produced. If no documents exist
that are responsive to a particular paragraph of these requests, so state in writing.
K. Unless otherwise specified, the timeframe for these requests includes
January 1, 2017 to the present.
-3-
FILED: ERIE COUNTY CLERK 11/30/2022 06:11 PM INDEX NO. 804173/2020
NYSCEF DOC. NO. 90 RECEIVED NYSCEF: 11/30/2022
DEFINITIONS
A. The term “document” is synonymous in meaning and equal in scope
to the usage of this term in CPLR 3120 and means record of any kind, in whatever medium
(e.g., paper, electronic, computer disk) it is maintained.
B. The use of the singular form includes the plural and vice versa.
C. The terms “any” and “all” shall be construed as any and all.
D. The connectives “and” and “or” shall be construed either disjunctively
or conjunctively as necessary to bring within the scope the request all responses that might
otherwise be construed to be outside its scope.
E. The term “communication” means any transfer of information or
ideas from one person or entity to another by means of, without limitation, mail, telephone,
text message, picture message, email, facsimile, face-to-face conversation, or any means
whether electronic, physical, or otherwise.
F. The term “Hickson” refers to Gerald E. Hickson.
G. The term “Natiella” refers to Gerald Natiella.
H. The term “PC Business” refers to P.C. Business Solutions, Inc. and/or
PCBS II, LLC and its parents, subsidiaries, affiliates, successors, officers, directors,
members, partners, agents, employees, or representatives.
I. The term “IT” refers to information technology.
J. The term “IT Services” refers to any IT work or services, including but
not limited to IT consulting, hardware, software, servers, cloud services, network services,
internet, VoIP, email, data backup, data recovery, firewall, email, SPAM protection,
network monitoring, web services, and antivirus.
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FILED: ERIE COUNTY CLERK 11/30/2022 06:11 PM INDEX NO. 804173/2020
NYSCEF DOC. NO. 90 RECEIVED NYSCEF: 11/30/2022
REQUESTS FOR PRODUCTION
1. All communications with Hickson, Natiella, and/or PC Business
concerning any IT Services or proposed IT Services.
2. All documents concerning any proposal, offer, or solicitation by
Hickson, Natiella, and/or PC Business for IT Services.
3. All documents concerning any IT Services actually provided by
Hickson, Natiella, and/or PC Business, including any agreements, contracts, receipts,
invoices, subscriptions, or payments.
4. All documents and communications concerning the employment or
potential employment of Hickson and/or Natiella, whether as an employee, consultant, or
independent contractor. This includes, but is not limited to, any solicitation or offer
of employment, agreements, contracts, invoices, or evidence of payment.
-5-
Preview
FILED: ERIE COUNTY CLERK 11/30/2022 06:11 PM INDEX NO. 804173/2020 NYSCEF DOC. NO. 90 RECEIVED NYSCEF: 11/30/2022 Exhibit 10 FILED: ERIE COUNTY CLERK 11/30/2022 06:11 PM INDEX NO. 804173/2020 NYSCEF DOC. NO. 90 RECEIVED NYSCEF: 11/30/2022 Phillips Lytle LLP Via Hand Delivery September 12, 2022 Moses Insurance 5475 Main Street Williamsville, New York 14221 Re: IEvolve, Inc. v. Gerald E. Hickson Index No. 804173/2020 Dear Sir or Madam: Enclosed for service upon you please find Plaintiff IEvolve, Inc.’s Subpoena Duces Tecum. Please feel free to give me a call at (716) 847-7024 with any questions or to arrange production of the documents requested in the Subpoena. Very truly yours, Phillips Lytle LLP By Jeffrey D. Coren JDC3 Enclosure JEFFRE Y D. C ORE N DIREC T 716 847 7024 J C O R E N @ P HI L L I P S L Y T L E . C O M A T T O R N E Y S A T L AW _________ O NE C A N A L S I D E 1 2 5 M A I N S T R E E T B U F F A L O , NE W YO R K 1 4 2 0 3 - 2 8 8 7 P H O N E ( 7 1 6 ) 8 4 7 - 8 4 0 0 F AX ( 7 1 6 ) 8 5 2 - 6 1 0 0 | P H I L L I P S L YT L E . C O M N E W YO R K : AL B A N Y , B U F F AL O , C H A U T A U Q U A , G AR D E N C I T Y , N E W Y O R K , R O C HE S T E R | W A S H I N G T O N , D C | C A NA D A : W A T E R L O O R E G I O N FILED: ERIE COUNTY CLERK 11/30/2022 06:11 PM INDEX NO. 804173/2020 NYSCEF DOC. NO. 90 RECEIVED NYSCEF: 11/30/2022 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF ERIE _________________________________________________ IEVOLVE, INC., Plaintiff, SUBPOENA DUCES TECUM v. Index No. 804173/2020 GERALD E. HICKSON, Defendant. _________________________________________________ TO: Moses Insurance 5475 Main Street Williamsville, New York 14221 YOU ARE HEREBY COMMANDED to produce on or before October 7, 2022 at the offices of Phillips Lytle LLP, One Canalside, 125 Main Street, Buffalo, New York 14203 complete and accurate copies of all documents responsive to the requests in the attached Exhibit A which are now in your possession, custody, or control for purposes of inspection and copying. Disclosure is sought from you because you have knowledge relevant to the allegations in this action; in particular, you have a business relationship with Defendant concerning IT services. Failure to produce these documents and items may be deemed a contempt of court and render you liable for a fine of $150.00, as well as all losses and damages sustained by the party aggrieved. Dated: Buffalo, New York PHILLIPS LYTLE LLP September 12, 2022 By: lig Cir Jeffrey D. Coren .,) Attorneys for Plaintiff IEvolve, Inc. One Canalside, 125 Main Street Buffalo, New York 14203-2887 Telephone No. (716) 847-8400 jcoren@phillipslytle.com FILED: ERIE COUNTY CLERK 11/30/2022 06:11 PM INDEX NO. 804173/2020 NYSCEF DOC. NO. 90 RECEIVED NYSCEF: 11/30/2022 EXHIBIT A INSTRUCTIONS A. All responsive documents, wherever located, that are in your possession, custody or control must be produced. B. The original or one copy of each document must be produced. Any copy of a document that varies in any way from the original or from any other copy of the document, whether by reason of handwritten or other notation or any omission, constitutes a separate document and must be produced, whether or not the original of such a document is within your custody or control. C. Documents must be produced as they are kept in the ordinary course of business. All documents physically attached to each other when located for production must be left so attached. Documents segregated or separated from other documents, whether by use of binders, files, sub-files, or by dividers, tabs, or any other method, must be left so segregated or separated. All labels or markings on any such binders, files, sub-files, dividers, tabs, or folders must be produced. D. If any responsive document is maintained in computer-readable form, it must be produced (i) in hard copy form, in a format generally used in the ordinary course of your business or (ii) on disk, tape, or other computer storage medium, with instructions necessary to convert the information into reasonably usable form (including the name and version number of the program used to create or read the data). E. A request for documents includes a request for any or all transmittal sheets, cover letters, exhibits, enclosures, and attachments to the documents in addition to the document itself, without abbreviation or expurgation. -2- FILED: ERIE COUNTY CLERK 11/30/2022 06:11 PM INDEX NO. 804173/2020 NYSCEF DOC. NO. 90 RECEIVED NYSCEF: 11/30/2022 F. If you refuse to produce any document or part thereof on the basis of a claim of privilege (including work product), you must identify the nature of the privilege. You must also provide the following information in the objection: (i) the type of document; (ii) the general subject matter of the document; (iii) the date of the document; and (iv) such other information as is sufficient to identify the document for a subpoena duces tecum, including, where appropriate, the author of the document, the addressees of the document, and any other recipients shown in the document, and, where not apparent, the relationship of the author, addressees and recipients to each other. G. If any request cannot be complied with in full, it must be complied with to the extent possible, with an explanation of why full compliance is not possible. H. This request is a continuing one and requires further and supplemental production by you whenever you acquire, locate, or create additional documents between the time of the initial production and the time of trial. I. With respect to any document described in this request that once existed, but has been destroyed or discarded, or is otherwise not capable of being produced, identify each such document and set forth the following information: the date of the document; a description of the subject matter of the document; the name and addresses of each person who prepared, received, viewed, or had possession, custody, or control of the document; and a statement of circumstances under which the document was destroyed or discarded or why such document is not capable of being produced. If no documents exist that are responsive to a particular paragraph of these requests, so state in writing. K. Unless otherwise specified, the timeframe for these requests includes January 1, 2017 to the present. -3- FILED: ERIE COUNTY CLERK 11/30/2022 06:11 PM INDEX NO. 804173/2020 NYSCEF DOC. NO. 90 RECEIVED NYSCEF: 11/30/2022 DEFINITIONS A. The term “document” is synonymous in meaning and equal in scope to the usage of this term in CPLR 3120 and means record of any kind, in whatever medium (e.g., paper, electronic, computer disk) it is maintained. B. The use of the singular form includes the plural and vice versa. C. The terms “any” and “all” shall be construed as any and all. D. The connectives “and” and “or” shall be construed either disjunctively or conjunctively as necessary to bring within the scope the request all responses that might otherwise be construed to be outside its scope. E. The term “communication” means any transfer of information or ideas from one person or entity to another by means of, without limitation, mail, telephone, text message, picture message, email, facsimile, face-to-face conversation, or any means whether electronic, physical, or otherwise. F. The term “Hickson” refers to Gerald E. Hickson. G. The term “Natiella” refers to Gerald Natiella. H. The term “PC Business” refers to P.C. Business Solutions, Inc. and/or PCBS II, LLC and its parents, subsidiaries, affiliates, successors, officers, directors, members, partners, agents, employees, or representatives. I. The term “IT” refers to information technology. J. The term “IT Services” refers to any IT work or services, including but not limited to IT consulting, hardware, software, servers, cloud services, network services, internet, VoIP, email, data backup, data recovery, firewall, email, SPAM protection, network monitoring, web services, and antivirus. -4- FILED: ERIE COUNTY CLERK 11/30/2022 06:11 PM INDEX NO. 804173/2020 NYSCEF DOC. NO. 90 RECEIVED NYSCEF: 11/30/2022 REQUESTS FOR PRODUCTION 1. All communications with Hickson, Natiella, and/or PC Business concerning any IT Services or proposed IT Services. 2. All documents concerning any proposal, offer, or solicitation by Hickson, Natiella, and/or PC Business for IT Services. 3. All documents concerning any IT Services actually provided by Hickson, Natiella, and/or PC Business, including any agreements, contracts, receipts, invoices, subscriptions, or payments. 4. All documents and communications concerning the employment or potential employment of Hickson and/or Natiella, whether as an employee, consultant, or independent contractor. This includes, but is not limited to, any solicitation or offer of employment, agreements, contracts, invoices, or evidence of payment. -5-