Preview
FILED: NEW YORK COUNTY CLERK 09/01/2022 04:07 PM INDEX NO. 650752/2022
NYSCEF DOC. NO. 36 RECEIVED NYSCEF: 09/01/2022
Exhibit A
FILED: NEW YORK COUNTY CLERK 09/01/2022 04:07 PM INDEX NO. 650752/2022
NYSCEF DOC. NO. 36 RECEIVED NYSCEF: 09/01/2022
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
-----------------------------------------------------------X
APOS US MANAGEMENT, INC.,
Index No. 650752/2022
Plaintiff,
APOS’S FIRST SET OF
v. REQUESTS FOR
PRODUCTION OF
ALL HANDS ON PHYSICAL THERAPY, P.C., DOCUMENTS TO DEFENDANT
Defendant.
-----------------------------------------------------------X
PLEASE TAKE NOTICE THAT plaintiff Apos US Management, Inc. (“Apos”), by
and through its attorneys, Denlea & Carton LLP, hereby demands that defendant All Hands On
Physical Therapy, P.C. (“Defendant”), produce the documents requested herein at the offices of
Denlea & Carton LLP, 2 Westchester Park Drive, Suite 410, White Plains, New York 10604, in
accordance with Article 31 of the CPLR by July 25, 2022.
DEFINITIONS AND INSTRUCTIONS
The following definitions, rules of construction, and instructions shall apply to each of
the Requests set forth below:
1. These document requests constitute a continuing request for information
responsive thereto pursuant to CPLR § 3101(h). You are requested to amend or supplement a
prior production of documents if you obtain information or documents that cause or should cause
you to know that the production, though complete when made, is no longer complete and that
circumstances are such that a failure to amend or supplement the production will conceal facts.
2. If any document, or any portion of any document, is withheld under claim of
attorney-client privilege or upon any other ground, the respondent withholding the document
shall furnish a list, signed by the person supervising the response to this request, identifying each
document withheld and stating with respect to each:
FILED: NEW YORK COUNTY CLERK 09/01/2022 04:07 PM INDEX NO. 650752/2022
NYSCEF DOC. NO. 36 RECEIVED NYSCEF: 09/01/2022
a. the date and number of pages of the document and the identities of its author,
addressee, and each person to whom copies were sent or were to be sent;
b. the subject matter of the document;
c. the identity of each person to whom the document, its contents, or any portion
thereof is known or has been disclosed;
d. if the document is withheld on the grounds of attorney-client privilege;
i. each basis for such claim of privilege, and
ii. the identity of each person who was privy to any asserted privileged
communication reflected in the document; and
e. if the document is withheld on any ground other than attorney-client privilege,
each basis which respondent contends justifies its withholding the document.
3. Documents produced shall be segregated and marked according to the request(s)
in response to which they are produced.
4. All documents shall be produced in the form in which they are maintained and
shall be organized so that Tracer can ascertain the files in which they were located, their relative
order in such files, and how such files were maintained. Documents maintained in electronic
form are to be produced in native format.
5. A request for a document shall be deemed to include a request for any and all file
folders within which the document was contained, transmittal sheets, cover letters, exhibits,
enclosures, or attachments to the documents in addition to the document itself.
6. Documents are to be produced in full and unexpurgated form without
abbreviation or redaction.
7. Each and every non-identical duplicate of a document within the scope of any
Request, whether different from the original because of stamps, indications of recipient,
handwritten notes, marks, comments, or attached to different documents, or for any other reason,
is a separate document to be produced in response hereto
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FILED: NEW YORK COUNTY CLERK 09/01/2022 04:07 PM INDEX NO. 650752/2022
NYSCEF DOC. NO. 36 RECEIVED NYSCEF: 09/01/2022
8. If you claim any ambiguity in interpreting any Request or any definition or
instruction applicable to a Request, you may not use such a claim as a basis for refusing to
respond to the document request, but shall respond to the document request applying the
broadest possible interpretation.
9. In the event that you are able to provide only part(s) of the document(s) called for
in any particular Request, provide all document(s) that you are able to provide and state the
reason, if any, for the inability to provide the remainder.
10. Every lost, deleted, discarded, or destroyed document called for by these Requests
is to be identified by stating the following:
a. the author of the document;
b. each person to whom the document was sent and each person who in fact
received a copy of the document;
c. the date the document was prepared and received;
d. the subject matter of the document;
e. the custodian of the document, or person otherwise responsible for the
document’s safekeeping, storage, or filing at the time of disposal;
f. the date of the disposal;
g. the person who disposed of the document;
h. the person who authorized the disposal of the document; and
i. the circumstances surrounding the disposal of the document and, if the
document was destroyed, the reason for its destruction.
11. In the event that any document called for by these Requests is no longer in your
possession, custody, or control, that document is to be identified by stating the following:
a. the contents of the document;
b. each person to whom the document was sent and each person who in fact
received a copy of the document;
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NYSCEF DOC. NO. 36 RECEIVED NYSCEF: 09/01/2022
c. the date the document was prepared and received;
d. the subject matter of the document;
e. the disposition that was made of the document; and
f. the person by whom the document is now possessed, held in custody, or
controlled.
12. The “Agreement” shall refer to the Non-Exclusive Product Purchase Agreement
between Apos and All Hands, dated November 25, 2019.
13. “All Hands” means defendant All Hands On Physical Therapy, P.C., its officers,
directors, employees, partners, corporate parents, subsidiaries, affiliates, divisions, departments,
member firms, assigns, predecessors, successors, board members, agents, representatives and
anyone else acting on its behalf.
14. “Complaint” means the Verified Complaint filed by Apos on February 16, 2022,
in the Supreme Court of the State of New York, County of New York, Index No. 650752/2022
(NYSCEF Doc. No. 1).
15. “Device” shall refer to the “Apos Device,” the custom-fitted, footworn
biomechanical device that includes convex sole attachments under a patient’s forefoot and heel.
16. As used therein, the term “document” shall have the broadest meaning
permissible by law and includes, without limitation, each and every form of communication, all
written, printed, typed, recorded, audio/digitally recorded, voice recorded documents, and any
materials maintained electronically including, but not limited to electronic mail, word
documents, Portable Document Format (PDF) files, Joint Photographic Experts Group (JPEG)
files, Tagged Image File Format (TIF) files, or Graphic Interchange Format (GIF) files, or
graphic matter of any kind, type, nature, or description, in whatever form (e.g., final and draft
versions) that is or has been in Your actual or constructive possession, custody, or control,
4
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NYSCEF DOC. NO. 36 RECEIVED NYSCEF: 09/01/2022
including, but not limited to, all printed and electronic copies of electronic mail, text messages,
screenshots, notes, correspondence, memoranda, tapes, stenographic or handwritten notes,
written forms of any kind, charts, blueprints, drawings, sketches, graphs, plans, articles,
specifications, diaries, letters, telegrams, photographs, minutes, contracts, agreements, reports,
surveys, computer printouts, data compilations of any kind, teletypes, facsimiles, invoices,
reports, summaries, books, ledgers, notebooks, schedules, transparencies, recordings,
audio/digital recordings, video tapes, audio tapes, digital/audio recordings, voicemail recordings,
brochures, pamphlets, or any written or recorded materials of any kind, however stored (whether
in tangible or electronic form), recorded, produced, or reproduced, including backup tapes. The
term “document” includes originals as well as any copies or reproductions of all such written,
printed, typed, recorded, or graphic matter upon which any notations, comments, or markings of
any kind have been made that do not appear on the original documents or that are otherwise not
identical to the original documents. Any document with marks such as initials, comments, or
notations of any kind is not identical to one without such marks and is to be produced as a
separate document.
17. The terms “person” or “persons” shall have the broadest meaning permissible by
law, and shall include any natural persons, proprietorships, governmental agencies, corporations,
partnerships, trusts, joint ventures, groups, associations, organizations, and all other entities.
18. The term “communication” means the transmittal of information (in the form of
facts, ideas, inquiries, or otherwise).
19. The term “identify,” with respect to persons, means to provide, to the extent
known, the person’s full name, present or last known address, and when referring to a natural
person, additionally, the present or last known place of employment.
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FILED: NEW YORK COUNTY CLERK 09/01/2022 04:07 PM INDEX NO. 650752/2022
NYSCEF DOC. NO. 36 RECEIVED NYSCEF: 09/01/2022
20. The term “identify,” with respect to documents or electronically stored
information, means to provide, to the extent known, information about the type of document or
electronically stored information, its general subject matter, the date of the document or
electronically stored information, its author(s), addressee(s), and recipient(s).
21. The term “including” shall be interpreted to mean “including, but not limited to.”
22. The term “concerning” shall have the broadest meaning permissible by law, and
shall be construed to mean relating to, referring to, describing, evidencing, or constituting.
23. The terms “representative” or “representatives” with regard to a person or entity
shall mean and shall include, both collectively and individually, each and every present and
former director, officer, partner, employee, agent, independent consultant, investment advisor,
expert, or any other person (including attorneys) acting or purporting to act on behalf of the
person or entity.
24. The terms “all” and “each” shall be construed as “all and each.”
25. The terms “any” or “all” shall mean “any and all.”
26. The terms “and” or “or” shall be construed either disjunctively or conjunctively as
necessary to bring within the scope of the Requests all responses that might otherwise be
construed to be outside of their scope.
27. The past tense shall include the present tense and vice versa.
28. The singular form shall include the plural and vice versa.
29. The masculine shall include the feminine and neuter.
30. In responding to the requests, furnish all responsive documents that are available
to You, including documents in the possession of Your subsidiaries, agents, advisors, attorneys,
representatives, or anyone else acting on Your behalf or otherwise subject to your control.
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FILED: NEW YORK COUNTY CLERK 09/01/2022 04:07 PM INDEX NO. 650752/2022
NYSCEF DOC. NO. 36 RECEIVED NYSCEF: 09/01/2022
31. Unless otherwise indicated, the relevant period covered by these Requests is from
(and includes) January 1, 2019 to the present.
REQUESTS FOR PRODUCTION
1. All communications between Apos and All Hands.
2. All contracts and agreements between Apos and All Hands, including, but not
limited to, the Agreement.
3. All drafts of the Agreement.
4. All communications between Apos and All Hands concerning the Agreement,
including, but not limited to, documents concerning negotiations of the Agreement.
5. All documents concerning any Devices sold by All Hands.
6. All written reports provided by All Hands to Apos concerning Devices sold by
All Hands.
7. All invoices issued by Apos to All Hands.
8. All communications between Apos and All Hands concerning the invoices issued
by Apos to All Hands.
9. All documents concerning payments by All Hands to Apos related to All Hands’
sales of Devices.
10. All documents submitted by All Hands to any insurance provider concerning All
Hands’ sale of any Devices.
11. All communications between All Hands and any insurance provider concerning
All Hands’ sale of any Devices.
12. All communications between All Hands and any insurance provider concerning
payments due on account of sales of Devices to such patients.
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NYSCEF DOC. NO. 36 RECEIVED NYSCEF: 09/01/2022
13. All documents concerning any appeals submitted by All Hands to any insurance
provider on account of All Hands’ sale of Devices.
14. All documents concerning payments received by All Hands from any insurance
provider for All Hands’ sale of Devices.
15. All documents concerning payments received by All Hands from patients for All
Hands’ sale of Devices, including, but not limited to, documents concerning any co-payments.
16. All documents concerning All Hands’ efforts to ensure Devices it sold were being
properly used by patients.
17. All documents concerning All Hands’ efforts to see “a patient for an Apos Device
visit during at least five (5) appointments outside of the initial calibration/evaluation consultation
during the first twelve (12) months subsequent to the issuance of the Apos Device to the patient,”
as provided by Exhibit B of the Agreement.
18. All documents concerning post-calibration appointments by All Hands’ patients.
19. All documents that All Hands intends to introduce at the trial of this litigation.
20. All documents referenced in Your answers to any interrogatories served in this
action.
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FILED: NEW YORK COUNTY CLERK 09/01/2022 04:07 PM INDEX NO. 650752/2022
NYSCEF DOC. NO. 36 RECEIVED NYSCEF: 09/01/2022
Dated: June 23, 2022
White Plains, New York
DENLEA & CARTON LLP
By: ______________________________
James R. Denlea
Craig M. Cepler
2 Westchester Park Drive, Suite 410
White Plains, New York 10604
Tel.: (914) 331-0100
Fax: (914) 331-0105
jdenlea@denleacarton.com
ccepler@denleacarton.com
Attorneys for Plaintiff
9
Preview
FILED: NEW YORK COUNTY CLERK 09/01/2022 04:07 PM INDEX NO. 650752/2022 NYSCEF DOC. NO. 36 RECEIVED NYSCEF: 09/01/2022 Exhibit A FILED: NEW YORK COUNTY CLERK 09/01/2022 04:07 PM INDEX NO. 650752/2022 NYSCEF DOC. NO. 36 RECEIVED NYSCEF: 09/01/2022 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK -----------------------------------------------------------X APOS US MANAGEMENT, INC., Index No. 650752/2022 Plaintiff, APOS’S FIRST SET OF v. REQUESTS FOR PRODUCTION OF ALL HANDS ON PHYSICAL THERAPY, P.C., DOCUMENTS TO DEFENDANT Defendant. -----------------------------------------------------------X PLEASE TAKE NOTICE THAT plaintiff Apos US Management, Inc. (“Apos”), by and through its attorneys, Denlea & Carton LLP, hereby demands that defendant All Hands On Physical Therapy, P.C. (“Defendant”), produce the documents requested herein at the offices of Denlea & Carton LLP, 2 Westchester Park Drive, Suite 410, White Plains, New York 10604, in accordance with Article 31 of the CPLR by July 25, 2022. DEFINITIONS AND INSTRUCTIONS The following definitions, rules of construction, and instructions shall apply to each of the Requests set forth below: 1. These document requests constitute a continuing request for information responsive thereto pursuant to CPLR § 3101(h). You are requested to amend or supplement a prior production of documents if you obtain information or documents that cause or should cause you to know that the production, though complete when made, is no longer complete and that circumstances are such that a failure to amend or supplement the production will conceal facts. 2. If any document, or any portion of any document, is withheld under claim of attorney-client privilege or upon any other ground, the respondent withholding the document shall furnish a list, signed by the person supervising the response to this request, identifying each document withheld and stating with respect to each: FILED: NEW YORK COUNTY CLERK 09/01/2022 04:07 PM INDEX NO. 650752/2022 NYSCEF DOC. NO. 36 RECEIVED NYSCEF: 09/01/2022 a. the date and number of pages of the document and the identities of its author, addressee, and each person to whom copies were sent or were to be sent; b. the subject matter of the document; c. the identity of each person to whom the document, its contents, or any portion thereof is known or has been disclosed; d. if the document is withheld on the grounds of attorney-client privilege; i. each basis for such claim of privilege, and ii. the identity of each person who was privy to any asserted privileged communication reflected in the document; and e. if the document is withheld on any ground other than attorney-client privilege, each basis which respondent contends justifies its withholding the document. 3. Documents produced shall be segregated and marked according to the request(s) in response to which they are produced. 4. All documents shall be produced in the form in which they are maintained and shall be organized so that Tracer can ascertain the files in which they were located, their relative order in such files, and how such files were maintained. Documents maintained in electronic form are to be produced in native format. 5. A request for a document shall be deemed to include a request for any and all file folders within which the document was contained, transmittal sheets, cover letters, exhibits, enclosures, or attachments to the documents in addition to the document itself. 6. Documents are to be produced in full and unexpurgated form without abbreviation or redaction. 7. Each and every non-identical duplicate of a document within the scope of any Request, whether different from the original because of stamps, indications of recipient, handwritten notes, marks, comments, or attached to different documents, or for any other reason, is a separate document to be produced in response hereto 2 FILED: NEW YORK COUNTY CLERK 09/01/2022 04:07 PM INDEX NO. 650752/2022 NYSCEF DOC. NO. 36 RECEIVED NYSCEF: 09/01/2022 8. If you claim any ambiguity in interpreting any Request or any definition or instruction applicable to a Request, you may not use such a claim as a basis for refusing to respond to the document request, but shall respond to the document request applying the broadest possible interpretation. 9. In the event that you are able to provide only part(s) of the document(s) called for in any particular Request, provide all document(s) that you are able to provide and state the reason, if any, for the inability to provide the remainder. 10. Every lost, deleted, discarded, or destroyed document called for by these Requests is to be identified by stating the following: a. the author of the document; b. each person to whom the document was sent and each person who in fact received a copy of the document; c. the date the document was prepared and received; d. the subject matter of the document; e. the custodian of the document, or person otherwise responsible for the document’s safekeeping, storage, or filing at the time of disposal; f. the date of the disposal; g. the person who disposed of the document; h. the person who authorized the disposal of the document; and i. the circumstances surrounding the disposal of the document and, if the document was destroyed, the reason for its destruction. 11. In the event that any document called for by these Requests is no longer in your possession, custody, or control, that document is to be identified by stating the following: a. the contents of the document; b. each person to whom the document was sent and each person who in fact received a copy of the document; 3 FILED: NEW YORK COUNTY CLERK 09/01/2022 04:07 PM INDEX NO. 650752/2022 NYSCEF DOC. NO. 36 RECEIVED NYSCEF: 09/01/2022 c. the date the document was prepared and received; d. the subject matter of the document; e. the disposition that was made of the document; and f. the person by whom the document is now possessed, held in custody, or controlled. 12. The “Agreement” shall refer to the Non-Exclusive Product Purchase Agreement between Apos and All Hands, dated November 25, 2019. 13. “All Hands” means defendant All Hands On Physical Therapy, P.C., its officers, directors, employees, partners, corporate parents, subsidiaries, affiliates, divisions, departments, member firms, assigns, predecessors, successors, board members, agents, representatives and anyone else acting on its behalf. 14. “Complaint” means the Verified Complaint filed by Apos on February 16, 2022, in the Supreme Court of the State of New York, County of New York, Index No. 650752/2022 (NYSCEF Doc. No. 1). 15. “Device” shall refer to the “Apos Device,” the custom-fitted, footworn biomechanical device that includes convex sole attachments under a patient’s forefoot and heel. 16. As used therein, the term “document” shall have the broadest meaning permissible by law and includes, without limitation, each and every form of communication, all written, printed, typed, recorded, audio/digitally recorded, voice recorded documents, and any materials maintained electronically including, but not limited to electronic mail, word documents, Portable Document Format (PDF) files, Joint Photographic Experts Group (JPEG) files, Tagged Image File Format (TIF) files, or Graphic Interchange Format (GIF) files, or graphic matter of any kind, type, nature, or description, in whatever form (e.g., final and draft versions) that is or has been in Your actual or constructive possession, custody, or control, 4 FILED: NEW YORK COUNTY CLERK 09/01/2022 04:07 PM INDEX NO. 650752/2022 NYSCEF DOC. NO. 36 RECEIVED NYSCEF: 09/01/2022 including, but not limited to, all printed and electronic copies of electronic mail, text messages, screenshots, notes, correspondence, memoranda, tapes, stenographic or handwritten notes, written forms of any kind, charts, blueprints, drawings, sketches, graphs, plans, articles, specifications, diaries, letters, telegrams, photographs, minutes, contracts, agreements, reports, surveys, computer printouts, data compilations of any kind, teletypes, facsimiles, invoices, reports, summaries, books, ledgers, notebooks, schedules, transparencies, recordings, audio/digital recordings, video tapes, audio tapes, digital/audio recordings, voicemail recordings, brochures, pamphlets, or any written or recorded materials of any kind, however stored (whether in tangible or electronic form), recorded, produced, or reproduced, including backup tapes. The term “document” includes originals as well as any copies or reproductions of all such written, printed, typed, recorded, or graphic matter upon which any notations, comments, or markings of any kind have been made that do not appear on the original documents or that are otherwise not identical to the original documents. Any document with marks such as initials, comments, or notations of any kind is not identical to one without such marks and is to be produced as a separate document. 17. The terms “person” or “persons” shall have the broadest meaning permissible by law, and shall include any natural persons, proprietorships, governmental agencies, corporations, partnerships, trusts, joint ventures, groups, associations, organizations, and all other entities. 18. The term “communication” means the transmittal of information (in the form of facts, ideas, inquiries, or otherwise). 19. The term “identify,” with respect to persons, means to provide, to the extent known, the person’s full name, present or last known address, and when referring to a natural person, additionally, the present or last known place of employment. 5 FILED: NEW YORK COUNTY CLERK 09/01/2022 04:07 PM INDEX NO. 650752/2022 NYSCEF DOC. NO. 36 RECEIVED NYSCEF: 09/01/2022 20. The term “identify,” with respect to documents or electronically stored information, means to provide, to the extent known, information about the type of document or electronically stored information, its general subject matter, the date of the document or electronically stored information, its author(s), addressee(s), and recipient(s). 21. The term “including” shall be interpreted to mean “including, but not limited to.” 22. The term “concerning” shall have the broadest meaning permissible by law, and shall be construed to mean relating to, referring to, describing, evidencing, or constituting. 23. The terms “representative” or “representatives” with regard to a person or entity shall mean and shall include, both collectively and individually, each and every present and former director, officer, partner, employee, agent, independent consultant, investment advisor, expert, or any other person (including attorneys) acting or purporting to act on behalf of the person or entity. 24. The terms “all” and “each” shall be construed as “all and each.” 25. The terms “any” or “all” shall mean “any and all.” 26. The terms “and” or “or” shall be construed either disjunctively or conjunctively as necessary to bring within the scope of the Requests all responses that might otherwise be construed to be outside of their scope. 27. The past tense shall include the present tense and vice versa. 28. The singular form shall include the plural and vice versa. 29. The masculine shall include the feminine and neuter. 30. In responding to the requests, furnish all responsive documents that are available to You, including documents in the possession of Your subsidiaries, agents, advisors, attorneys, representatives, or anyone else acting on Your behalf or otherwise subject to your control. 6 FILED: NEW YORK COUNTY CLERK 09/01/2022 04:07 PM INDEX NO. 650752/2022 NYSCEF DOC. NO. 36 RECEIVED NYSCEF: 09/01/2022 31. Unless otherwise indicated, the relevant period covered by these Requests is from (and includes) January 1, 2019 to the present. REQUESTS FOR PRODUCTION 1. All communications between Apos and All Hands. 2. All contracts and agreements between Apos and All Hands, including, but not limited to, the Agreement. 3. All drafts of the Agreement. 4. All communications between Apos and All Hands concerning the Agreement, including, but not limited to, documents concerning negotiations of the Agreement. 5. All documents concerning any Devices sold by All Hands. 6. All written reports provided by All Hands to Apos concerning Devices sold by All Hands. 7. All invoices issued by Apos to All Hands. 8. All communications between Apos and All Hands concerning the invoices issued by Apos to All Hands. 9. All documents concerning payments by All Hands to Apos related to All Hands’ sales of Devices. 10. All documents submitted by All Hands to any insurance provider concerning All Hands’ sale of any Devices. 11. All communications between All Hands and any insurance provider concerning All Hands’ sale of any Devices. 12. All communications between All Hands and any insurance provider concerning payments due on account of sales of Devices to such patients. 7 FILED: NEW YORK COUNTY CLERK 09/01/2022 04:07 PM INDEX NO. 650752/2022 NYSCEF DOC. NO. 36 RECEIVED NYSCEF: 09/01/2022 13. All documents concerning any appeals submitted by All Hands to any insurance provider on account of All Hands’ sale of Devices. 14. All documents concerning payments received by All Hands from any insurance provider for All Hands’ sale of Devices. 15. All documents concerning payments received by All Hands from patients for All Hands’ sale of Devices, including, but not limited to, documents concerning any co-payments. 16. All documents concerning All Hands’ efforts to ensure Devices it sold were being properly used by patients. 17. All documents concerning All Hands’ efforts to see “a patient for an Apos Device visit during at least five (5) appointments outside of the initial calibration/evaluation consultation during the first twelve (12) months subsequent to the issuance of the Apos Device to the patient,” as provided by Exhibit B of the Agreement. 18. All documents concerning post-calibration appointments by All Hands’ patients. 19. All documents that All Hands intends to introduce at the trial of this litigation. 20. All documents referenced in Your answers to any interrogatories served in this action. 8 FILED: NEW YORK COUNTY CLERK 09/01/2022 04:07 PM INDEX NO. 650752/2022 NYSCEF DOC. NO. 36 RECEIVED NYSCEF: 09/01/2022 Dated: June 23, 2022 White Plains, New York DENLEA & CARTON LLP By: ______________________________ James R. Denlea Craig M. Cepler 2 Westchester Park Drive, Suite 410 White Plains, New York 10604 Tel.: (914) 331-0100 Fax: (914) 331-0105 jdenlea@denleacarton.com ccepler@denleacarton.com Attorneys for Plaintiff 9