Preview
FILED
6/26/2023 10:07 AM
FELICIA PITRE
DISTRICT CLERK
DALLAS CO., TEXAS
Steve Brashear DEPUTY
June 26, 2023
VIA E-FILE
Judge Tillery
134th District Court
George L. Allen, Sr. Courts Building
600 Commerce Street
6th Floor West
Dallas, Texas 75202
Re: Biote Medical, LLC v. Dr. Gary S. Donovitz, et al; Cause No. DC-22-08737, in
the 134th Judicial District Court, Dallas County, Texas
Dear Judge Tillery,
Pursuant to the Court’s guidance at the hearing in the above-captioned matter dated June
23, 2023 (the “Hearing”), we write on behalf of Defendant Dr. Gary S. Donovitz (“Donovitz”) to
furnish examples of Counterclaim Defendants’ 1 refusals to respond to germane discovery
informing the defenses they untimely seek to inject: attorney immunity, standing, capacity, and
release. With respect to the release defense in particular, we also write to provide additional
information about the collateral lawsuit in Delaware, instigated by Counterclaim Defendants and
their affiliates, where claims related to the BCA 2 are slated to be heard.
A. Attorney Immunity
Counterclaim Defendants have persistently blocked discovery about Conlon’s attorney-
client relationship with (i) Donovitz and (ii) the various Biote Companies she will presumably
claim to have represented as part of her attorney-immunity defense. Incredibly, counsel instructed
Conlon not to answer which companies or individuals she represents, whether she performed legal
work relating to the merger agreement, or who her client was. Counterclaim Defendants have also
obstructed discovery about Conlon’s individual representation of Donovitz.
For example:
1. Although it is undisputed that Conlon was Donovitz’s personal lawyer, 3 Conlon totally refused
to produce documents regarding her legal representation of Donovitz individually. 4
1
“Counterclaim Defendants” shall refer to Biote Medical LLC, Mary Elizabeth Conlon, and Teresa Weber.
2
The “BCA” shall refer to that certain Business Combination Agreement executed among Donovitz, Biote Holdings
LLC, the Haymaker SPAC, and other entities as of December 13, 2021.
3
Affidavit of Mary Elizabeth Conlon, filed October 4, 2022, at ¶ 5.
4
See Exhibit 2 hereto (Mary Elizabeth Conlon’s Objections and Responses to Defendant and Counterclaim Plaintiff
Gary Donovitz’s First Request for Production dated June 16, 2023) (the “Conlon RFP Objections”) at page 6 (Request
No. 9). Biote Medical similarly refused to produce documents during the timeframe of the FAA negotiations that
“relate[d] to Counterclaim Defendant Mary Elizabeth Conlon’s legal relationship or representation of Dr. Donovitz[.]”
See Exhibit 3 hereto (Biote Medical LLC’s Objections to Defendant and Counterclaim Plaintiff Gary Donovitz’s
Judge Tillery
June 26, 2023
Page 2
2. Conlon’s attorney-immunity defense would presumably rest on the argument that she did not
perform work for Donovitz individually in connection with the FAA. But in response to an
interrogatory asking about work she performed for Donovitz on the FAA, Conlon refused to
answer. 5
3. Counterclaim Defendants similarly refused to respond to other discovery about the relationship,
and advice exchanged, among Conlon and Donovitz:
a. Conlon also refused to produce her communications (including her advice or warnings)
to Donovitz regarding liabilities he might individually owe under the BCA. 6 This
refusal is key, because Donovitz alleges that Conlon provided him personal,
individualized legal advice on this topic.
b. Asserting privilege, Conlon refused to give her understanding regarding whether she
owed duties to Donovitz in connection with the SPAC merger 7 or the FAA, 8 or indeed
whether she owed duties to any corporate constituents in her capacity as general
counsel. 9
4. Pursuant to counsel’s instruction, when deposed, Conlon refused to answer:
a. Which Biote companies she is General Counsel of. 10
b. Whether she performed legal work relating to the negotiation of the BCA, 11 and, if so,
who her client was. 12
c. Whether she was General Counsel to Biote Holdings LLC, the holding company that
signed the BCA, during the period when the contracts in this case were negotiated. 13
Second Request for Production of Documents dated Sep. 1, 2022) (the “Biote 2nd RFP Objections”) at page 5 (Request
No. 5).
5
See Exhibit 1 hereto (Mary Elizabeth Conlon’s Objections and Responses to Defendant and Counterclaim Plaintiff
Gary Donovitz’s First Set of Interrogatories dated June 16, 2023) (“Conlon Interrogatory Objections”) at page 8
(Interrogatory No. 17).
6
See Exhibit 2 (Conlon RFP Objections) at page 4 (Request No. 4).
7
Exhibit 1 (Conlon Interrogatory Objections) at page 6 (Interrogatory No. 9).
8
Id. at pages 6-7 (Interrogatory No. 10).
9
Id. at page 7 (Interrogatory No. 13).
10
See Exhibit 4 hereto (Deposition of Mary Conlon Dated Sep. 20, 2022) (“Conlon Dep. Tr.”) at 40:3-41:20.
11
Id. at 94:17-95:24
12
Id. at 95:25-96:20.
13
Id. at 24:14-25:7.
Judge Tillery
June 26, 2023
Page 3
d. Whether she provides legal advice about contract negotiations, 14 or litigation, 15 to the
owners or managers of various Biote Companies.
i. Such questions are relevant to an attorney-immunity defense because Donovitz
was a key constituent (an owner and manager of multiple entities) within the
Biote corporate structure, so the provision of legal services to managers or
shareholders as a group would preclude an attorney-immunity defense as
against Donovitz.
ii. Indeed, Conlon refused to answer whether she provides any legal advice
whatsoever to the managers (i.e., the directors) of Biote Medical—despite
being the company’s General Counsel. 16
iii. She also refused to answer whether she consulted shareholders about the
contract revisions she now argues were performed on behalf of an unspecified
corporate entity, in a negotiation adverse to the entities’ shareholder. 17
e. Counsel instructed Conlon not to answer whether there was a malpractice insurance
policy governing her work as Biote General Counsel during the period the FAA was
negotiated. 18 The details of such a policy would be probative of which companies
Conlon represented, the nature of the legal services she was employed to perform, and
whether her representation was envisioned to extend to key constituents like
Donovitz—but Counterclaim Defendants have blocked discovery on this issue.
f. Conlon also refused to answer questions about fiduciary duties and conflicts that
pertain directly to whether she was negotiating adverse to Donovitz (or by contrast
owed duties to him), and whether Donovitz had reason to understand this. Conlon
refused to answer:
i. Her understanding of what a fiduciary is. 19
ii. Whether she takes steps to advise corporate constituents about potential
conflicts, or understands she has any duty to do so. 20
iii. Whether she had a duty to advise Donovitz about potential conflicts of interest
in connection with the merger. 21
14
See id. at 31:15-23.
15
See id. at 29:25-30:8.
16
Id. at 32:4-12.
17
Id. at 212:2-9.
18
Id. at 66:4-67:13.
19
Id. at 85:20-86:4.
20
Id. at 80:4-83:3.
21
Id. at 136:13-24.
Judge Tillery
June 26, 2023
Page 4
iv. Whether she had any independent understanding – excluding legal advice –
about a general counsel’s fiduciary duties to shareholders. 22
B. Standing and Capacity
Counterclaim Defendants have persistently blocked discovery concerning the
organizational structure and governance of the corporate entities at issue. This includes discovery
concerning which corporate constituents reported to whom, how voting powers were allocated and
exercised, and other “circumstances surrounding the creation and operation” of the relevant
corporate entities which shape whether “justice requires” a Texas court to treat a derivative claim
as a direct one. 23 And importantly, even if Counterclaim Defendants are permitted to
interpose a standing or capacity defense, they should not be permitted to ground it on Teresa
Weber’s purported designation as “Members’ Representative” (i.e., attorney-in-fact) for the
shareholders of Biote Holdings, because Counterclaim Defendants have totally refused to produce
documents on that issue.
For example, Counterclaim Defendants have blocked discovery regarding:
1. Whether Biote contends that any individual other than Donovitz could have exercised board
powers (and thus authorized a direct lawsuit) during the relevant period. 24
2. Weber’s appointment as Members’ Representative of Holdings. 25
3. In response to an interrogatory, Conlon refused to answer why she had previously refused to
provide Donovitz a complete, accurate copy of the Biote Holdings Operating Agreement. 26
22
Id. at 190:23-191:9.
23
See, e.g., Saden v. Smith, 415 S.W.3d 450, 463 (Tex. App. 2013) (“If justice requires,” a court may treat a
shareholder’s derivative claim as direct. Facts which supported direct shareholder standing in this case included: the
fact that direct duties were owed under relevant contracts, articles of incorporation, and bylaws; the fact that the
structure was closely held; and, other facts about “the creation and operation of [the corporate entity] and the “factual
circumstances of the relationship between [litigants] prior to the formation of [the entity].”). Notably, the Texas
derivative-standing analysis only governs standing and capacity defenses to the extent they are asserted with respect
to Biote Medical LLC, a Texas entity. To the extent that claims are asserted to be vested in Biote Holdings LLC
(formerly a Nevada and currently a Delaware entity), the derivative-standing analysis would be governed by Nevada
or Delaware law—but would still hinge on facts about the entities’ ownership and operation. See, e.g., Gephart v.
Merryman, No. 218CV01670GMNCWH, 2018 WL 11266888, at *3 (D. Nev. Nov. 6, 2018) (considering capital
structure and whether a multiplicity of claims, or harm to creditors, would result from a direct suit).
24
See Exhibit 5 hereto (Plaintiff’s Objections and Responses to Dr. Gary Donovitz’s Third Set of Interrogatories to
Biote Medical LLC dated Apr. 28, 2023) (“Biote’s 3rd Interrogatory Objections”) at page 8 (Interrogatory No. 14).
25
See Exhibit 6 hereto (Teresa S. Weber’s Objections and Responses to Defendant and Counterclaim Plaintiff Gary
Donovitz’s First Request for Production dated June 16, 2023) (the “Weber RFP Objections”) at page 4 (Request No.
4).
26
See Exhibit 1 (Conlon Interrogatory Objections) at page 9 (Interrogatory No. 20).
Judge Tillery
June 26, 2023
Page 5
4. Board meetings and minutes of Biote Medical, 27 including pre-merger public-company board
meetings held during Spring 2022 without Donovitz’s knowledge. 28
a. Counterclaim Defendants even claimed not to know what the term “board” meant, in
the context of discovery requests regarding board minutes and meetings. 29
5. Board meetings and minutes of Biote Holdings. 30 Indeed, Counterclaim Defendants refuse
even to admit or deny whether board meetings occurred. 31
6. Documents “relating to the governance of” entities of which Dr. Donovitz was a shareholder
during the period the BCA and FAA were negotiated; 32
7. Documents relating to which executives were compensated by which corporate entities, and
how (i.e., equity or incentive units). 33
8. In response to an interrogatory, Biote Medical refused to identify corporate documents that it
contends governed fiduciary duties of officers, managers, and directors. 34
9. Counterclaim Defendants claim to lack “sufficient information to admit or deny” rudimentary
facts about the Biote entities’ corporate governance, such as whether Donovitz was the sole
member of a single-member LLC. 35
C. Release
As discussed at the Hearing, Counterclaim Defendants have been particularly insistent about
foreclosing discovery relating to the BCA, which was a distinct contract negotiated and signed roughly five
months prior to the FAA. Counterclaim Defendants’ justification was that such matters belonged “in
See Exhibit 7 hereto (Biote Medical LLC’s Objections and Responses to Defendant and Counterclaim Plaintiff Gary
27
Donovitz’s Fifth Request for Production dated June 16, 2023) (“Biote’s 5th RFP Objections”) at page 3 (Request
No.1).
28
See Exhibit 2 (Conlon RFP Objections) at page 8 (Request No. 14).
29
See Exhibit 8 hereto (Plaintiff’s First Amended Objections and Responses to Defendant Dr. Gary S. Donovitz’s
Third Set of Requests for Admissions to Biote Medical LLC dated April 23, 2023) (“Biote’s 3rd RFA Objections”) at
page 8 (Request No. 42).
30
See Exhibit 7 (Biote’s 5th RFP Objections) at page 3 (Request No. 2).
31
See Exhibit 8 (Biote’s 3rd RFA Objections) at page 8 (Request No. 43).
See Exhibit 9 hereto (Biote Medical LLC’s Objections and Responses to Defendant and Counterclaim Plaintiff Gary
32
Donovitz’s Third Request for Production dated Mach 1, 2023) (“Biote’s 3rd RFP Objections”) at pages 3-4 (Request
No. 11).
33
See id. at page 4 (Request 12). After refusing to produce these documents to Donovitz, Plaintiff furnished the
documents to it own experts for his report.
34
See Exhibit 5 (Biote’s 3rd Interrogatory Objections) at page 15 (Interrogatory No. 25).
35
See Exhibit 8 (Biote’s 3rd RFA Objections) at page 3 (Request No. 25).
Judge Tillery
June 26, 2023
Page 6
Delaware” 36 This was grounded on a mandatory forum-selection clause in the BCA, which provided in
relevant part that proceedings “arising out of or related to [the BCA],” and any “claims in respect of [such]
[p]roceeding,” had to be brought in Delaware.
During October 2022, Biote 37 tried to leverage this clause to enjoin counterclaims and affirmative
defenses pleaded here by Donovitz regarding the FAA. Importantly, none of Donovitz’s counterclaims or
defenses mention, let alone seek to enforce provisions of, the BCA. When it denied Biote’s anti-suit
injunction against Donovitz, the Delaware court acknowledged some overlap between the Delaware case
(where BCA claims will be heard) and this Texas case (centering on the FAA), but also emphasized this
core distinction, explaining:
Notably, there's no reference in these
counterclaims or affirmative defenses to the
combination agreement. There are no theories that
invoke, arise out of, or touch on the provisions of
the combination agreement [i.e. the BCA]. I'm sure
that was intentional.
Admittedly, there is factual overlap.
This whole dispute is ultimately traceable to one
big de-SPAC merger deal that Donovitz views as
disastrous and presumably the people on the buy side
view as successful. Factually, it all relates to
that. But in terms of the legal issues that are
being litigated in Texas, those are separate. 38
(emphasis added). After Donovitz finished litigating his Texas counterclaims and affirmative defenses, the
Delaware court reasoned, the parties could return and litigate the remaining BCA issues (about which there
was not “really any fight” regarding the appropriate forum) in Delaware. 39
So, the parties proceeded accordingly. Even where Donovitz sought Texas fact discovery relating
to the BCA, Counterclaim Defendants refused to provide any—both before and after the Delaware court
weighed in. For example:
36
See Exhibit 3 (BioTE’s 2nd RFP Objections) at p. 5 (Request No. 5).
37
The Delaware litigation discussed here was initially brought by Biote Corp.; ultimately, other entities, including
Biote Medical and each of the individual Counterclaim Defendants Weber and Conlon, joined the case. By the time
the injunction request was heard on November 4, 2022, each of the Counterclaim Defendants named herein was a
party to the Delaware proceeding and a proponent of the anti-suit injunction.
38
See Exhibit 10 hereto (Transcript of Oral Argument dated Nov. 4, 2022, Del Ch. C.A. No. 2022-0611-JTL) at 42:14-
43:2.
39
See id. at 56:5-57:3.
Judge Tillery
June 26, 2023
Page 7
1. Counterclaim Defendants flatly refused to produce any documents regarding “the
negotiation of the Business Combination Agreement,” 40 insisting such documents were
irrelevant (“not reasonably calculated to lead to the discovery of admissible evidence”).
2. Following counsel’s instruction, Conlon refused to answer whether she performed legal work
relating to the negotiation of the BCA, 41 and which clients she was representing when the BCA
was being negotiated. 42
3. Weber refused to testify regarding her own contemporaneous understanding, during the FAA
negotiations, of purportedly-relevant BCA provisions, claiming that her understandings about
the BCA were privileged because she discussed them with lawyers. 43
4. Weber refused to answer interrogatories about the BCA, including interrogatories bearing
directly on its validity and enforceability, such as whether material facts about the BCA were
disclosed to shareholders. 44
5. Counterclaim Defendants have persistently given caveated, evasive, inadequate responses to
requests for admissions which reproduce key language from the BCA verbatim and ask
Counterclaim Defendants to admit to its applicability. 45
6. Counterclaim Defendants have persistently blocked discovery about the parties’
communications and relationships with the Cooley law firm, which played an instrumental role
framing the BCA and explaining its provisions to Donovitz. 46
Finally, Donovitz notes that an amendment interposing a defense of release under the BCA would
be futile and fail as a matter of law, including because (i) the release executed on Section 5.13 of the BCA
was conferred on behalf of Biote Holdings LLC and certain affiliates, not Donovitz individually; 47 and (ii)
40
See Exhibit 9 (Biote’s 3rd RFP Objections) at page 5 (Request No. 15); see also Exhibit __ (Weber’s 1st RFP
Objections) at page 6 (Request No. 9).
41
Exhibit 4, Conlon Dep. Tr. at 94:17-95:24
42
Id. at 95:25-96:20.
43
See Exhibit 11 hereto (Deposition of Teresa Weber dated Dec. 16, 2022) (“Weber Dep. Tr.”) at 39:6-40:24.
44
See Exhibit 12 hereto (Teresa S. Weber’s Objections and Responses to Defendant and Counterclaim Plaintiff Dr.
Gary S. Donovitz’s First Set of Interrogatories to Teresa S. Weber) (“Weber Interrogatory Objections”) at page 8
(Interrogatory No. 15).
45
See Exhibit 13 hereto (Plaintiff’s Objections and Responses to Defendant Dr. Gary S. Donovitz’s Second Request
for Admission to Biote Medical LLC dated January 30, 2023) (“Biote’s 2nd RFA Objections”) at page 3 (Requests No.
14-16). Plaintiff dodges and fails to respond to these Requests on the ground that their language is purportedly
ambiguous, but the contested language (“subject to the satisfaction or written waiver..”) is excerpted directly from the
BCA that Counterclaim Defendants now seek to enforce. See Exhibit 14 hereto (BCA Excerpts) at 8.1(a).
46
See Exhibit 3 hereto (Biote Medical LLC’s Objections to Defendant and Counterclaim Plaintiff Gary Donovitz’s
Second Request for Production of Documents dated Sep. 1, 2022) (the “Biote 2nd RFP Objections”) at page 4 (Request
No. 4).
47
See Exhibit 14 hereto (BCA Excerpts) at Section 5.13 (“Company Releasing Parties”). To the extent that the
Company’s conferral of this release purports to bind Donovitz in his individual capacity, as a controlling Affiliate or
Judge Tillery
June 26, 2023
Page 8
Delaware public policy prohibits prospective waivers or releases of liability for reckless or intentional torts,
including intentional breaches of fiduciary duty. 48
.
Respectfully submitted,
BREWER, ATTORNEYS & COUNSELORS
By: /s/ Sarah B. Rogers
Sarah B. Rogers
COUNSEL FOR DEFENDANT DR. GARY
S. DONOVITZ
otherwise, the validity of the release depends inter alia on whether Donovitz authorized the Company to execute it on
his behalf—and Counterclaim Defendants have refused to produce documents that would enable such an inquiry.
48
This issue was discussed at length in a recent opinion by Vice Chancellor J. T. Laster, who is presiding over the
parties’ Delaware litigation. See New Enter. Assocs. 14, L.P. v. Rich, No. 2022-0406-JTL, 2023 WL 3195927, at *52
(Del. Ch. May 2, 2023).
EXHIBIT 1
CAUSE NO. DC-22-08737
BIOTE MEDICAL, LLC, § IN THE DISTRICT COURT
§
Plaintiff, §
§
v. §
§
DR. GARY S. DONOVITZ AND LANI §
HAMMONDS DONOVITZ, individually §
and dba LANI D. CONSULTING, §
§
Defendants. §
§
DR. GARY S. DONOVITZ, § DALLAS COUNTY, TEXAS
§
Counterclaim Plaintiff, §
§
v. §
§
BIOTE MEDICAL, LLC, TERESA S. §
WEBER, individually, and MARY §
ELIZABETH CONLON, individually, §
§
Counterclaim Defendants. §
§
§ 134th JUDICIAL DISTRICT
MARY ELIZABETH CONLON’S OBJECTIONS AND RESPONSES TO DEFENDANT
AND COUNTERCLAIM PLAINTIFF DR. GARY S. DONOVITZ’S FIRST SET OF
INTERROGATORIES TO MARY ELIZABETH CONLON
TO: Defendant and Counterclaim Plaintiff Dr. Gary S. Donovitz, by and through his counsel of
record Sarah Rogers, Brewer, Associates & Counselors, 1717 Main Street, suite 5900,
Dallas, Texas 75201.
Pursuant to the Texas Rules of Civil Procedure, Counterclaim Defendant Mary Elizabeth
Conlon (“Conlon”), hereby serves her Objections and Responses (“Response”) to Defendant and
Counterclaim Plaintiff Dr. Gary S. Donovitz’s First Set of Interrogatories propounded to her by
Dr. Gary S. Donovitz (“Gary”), without prejudice to subsequently discovered information, and
amendment, as follows:
MARY ELIZABETH CONLON’S OBJECTIONS AND RESPONSES
TO DEFENDANT AND COUNTERCLAIM PLAINTIFF
DR. GARY S. DONOVITZ’S FIRST SET OF INTERROGATORIES
Page 1
PRELIMINARY STATEMENT
Counterclaim Defendant Mary Elizabeth Conlon has not: (a) completed her investigation
of the facts related to this action; (b) interviewed all witnesses in this action; (c) completed
discovery in this action; or (d) completed her preparation for trial. The responses contained herein
are based on such information which is presently available and specifically known to her and
discloses only that information which is presently known to her. It is anticipated that additional
discovery will supply additional facts, and meaning to known facts, and potentially establish
additional factual conclusions and legal conclusions, all of which may lead to additions to or
amendments of Conlon’s answers herein. The following objections and responses are given
without prejudice to Conlon’s right to modify, alter, amend or retract same based on any
subsequently discovered information or evidence. Conlon accordingly reserves the right to
supplement any and all responses/answers herein as additional information is ascertained and
analyzed. The responses/answers contained herein are made in a good faith effort to supply as
much information and as much specification as is presently known.
GENERAL OBJECTIONS
1. Conlon objects to Gary’s instructions, definitions and other explanatory statements to the
extent that Gary intends to expand or alter Conlon’s obligations in responding to these
Interrogatories under the Texas Rules of Civil Procedure. Conlon will comply with the
Texas Rules of Civil Procedure in providing answers and objections to these
Interrogatories.
2. Conlon fully intends to assert any and all applicable privileges, exemptions and
protections from discovery, and Conlon’s disclosure of any information covered by a
MARY ELIZABETH CONLON’S OBJECTIONS AND RESPONSES
TO DEFENDANT AND COUNTERCLAIM PLAINTIFF
DR. GARY S. DONOVITZ’S FIRST SET OF INTERROGATORIES
Page 2
privilege, protection, or exemption from discovery is inadvertent and not intended to
waive any rights.
3. Conlon makes these responses with the understanding that she does not agree that any of
Gary’s definitions are either factually or legally binding on it, including but not limited to
the purported definition of “Biote” or “anyone acting on its behalf” which is overly broad,
unduly burdensome and harassing.
4. Conlon further objects to these Interrogatories to the extent they seek to require her to
identify information from written communications which either have already been
produced and are equally available to Gary or are simultaneously requested via requests
for production. Conlon will treat requests to “identify all communications” to refer to oral
communications.
5. Conlon also objects to the Interrogatories as duplicative, burdensome, and harassing to
the extent they are duplicative of information already sought from her in oral discovery.
6. Conlon incorporates each of the foregoing objections in specific response to the
Interrogatories and, when appropriate, will state additional, specific objections to such
Interrogatory.
INTERROGATORIES
1. Identify each Communication between You and a Third-Party Witness regarding this
lawsuit.
RESPONSE: Subject to and without waiving the foregoing and General Objections, Conlon
responds as follows: none.
MARY ELIZABETH CONLON’S OBJECTIONS AND RESPONSES
TO DEFENDANT AND COUNTERCLAIM PLAINTIFF
DR. GARY S. DONOVITZ’S FIRST SET OF INTERROGATORIES
Page 3
2. Identify each of Your Communications relating to the Net Tangible Assets Closing
Condition including, without limitation, Communications relating to the May 19 Waiver. This
Interrogatory covers the period from December 13, 2021, to May 26, 2022.
RESPONSE: Subject to and without waiving the General Objections, Conlon responds as follows:
I do not recall having any oral communications relating to the Net Tangible Assets Closing Condition.
I received an email on May 23, 2022, from Jarrett Burks at Cooley attaching a fully executed copy of
the waiver for my records.
3. Identify each of Your Communications with Donovitz regarding the potential impact of
Buyer Shareholder Redemptions on any Closing Date Payments. This Interrogatory covers the
period from December 13, 2021, through May 26, 2022, and covers any Communication to which
You and Donovitz were party, regardless of whether other Persons also participated.
RESPONSE: Subject to and without waiving the General Objections, I do not recall having any such
communications.
4. Identify each of Your Communications with Donovitz regarding the amount of Cash
Consideration he would receive from the Closing Date Payments. This Interrogatory covers the
period from January 1, 2022, through May 26, 2022.
RESPONSE: Subject to and without waiving the General Objections, I do not recall having any such
communications.
5. Identify each of Your Communications regarding the Weber Probation Letter. This
Interrogatory covers the period from May 5, 2022, through May 26, 2022.
MARY ELIZABETH CONLON’S OBJECTIONS AND RESPONSES
TO DEFENDANT AND COUNTERCLAIM PLAINTIFF
DR. GARY S. DONOVITZ’S FIRST SET OF INTERROGATORIES
Page 4
RESPONSE: Conlon objects to this Interrogatory because it is not reasonably calculated to lead to
the discovery of admissible evidence. Conlon further objects to this Interrogatory on the grounds that
it seeks disclosure of attorney-client privileged communications.
6. Identify every Communication and Meeting regarding the post-merger governance of the
BioTE Companies, including without limitation, Donovitz’s post-merger role, his request for a
post-merger contract with any of the BioTE Companies, and/or the potential provision of such
contract. This Interrogatory covers the period from January 1, 2022, through May 26, 2022.
RESPONSE: Conlon objects to this Interrogatory as overly broad and unduly burdensome in its
request for her to “identify every communication and meeting regarding the post-merger governance
of the BioTE Companies” and because it fails to specify about whose communications and meetings
the Interrogatory is referring. Conlon further objects to this Interrogatory on the grounds that it seeks
disclosure of attorney-client privileged communications. Subject to and without waiving the
foregoing and General Objections, other than privileged communications, and other than the written
communications that have already been produced, and oral communications that I testified to in my
deposition, I do not recall having any other non-privileged communications regarding Donovitz’s
post-merger role or his request for a post-merger contract and/or the potential provision of such
contract.
7. Identify any data that you provided to Donovitz about the SPAC merger, and for each, state
(a) the date on which it was conveyed and (b) the medium in which it was conveyed.
RESPONSE: Conlon objects to this Interrogatory as overly broad, unduly burdensome and not
reasonably calculated to lead to the discovery of admissible evidence.
MARY ELIZABETH CONLON’S OBJECTIONS AND RESPONSES
TO DEFENDANT AND COUNTERCLAIM PLAINTIFF
DR. GARY S. DONOVITZ’S FIRST SET OF INTERROGATORIES
Page 5
8. Identify every Communication in which You disclosed to Donovitz, as the Sole Manager
of BioTE Holdings, (a) the impact of the Buyer Share Redemption on Cash Consideration, and (b)
that BioTE Holdings would not receive the entire amount designated by the Closing Date
Payments, for each Communication, state (a) the date and (b) the content.
RESPONSE: Conlon objects to this Interrogatory as vague and ambiguous with respect to what is
meant by “the entire amount designated by the Closing Date Payments.” Subject to and without
waiving the foregoing and General Objections, Conlon responds as follows: I had a number of
conversations with Donovitz before the BCA was signed, although I do not recall specific dates,
where I explained that the amount of redemptions affected how much cash there would be at
closing to distribute under the waterfall. I do not recall having any communications in the specified
time period with Dr. Donovitz where I stated specifically that BioTE Holdings would not receive the
entire amount designated by the Closing Date Payments, although I never told him that there was any
amount of money that BioTE Holdings was, in fact, guaranteed to receive.
9. Identify any duty which You understood that You owed to Donovitz in connection with the
SPAC merger.
RESPONSE: Conlon objects to this Interrogatory because it calls for the disclosure of attorney-
client privileged communications, and it calls for a legal conclusion.
10. Identify any duty which You understood that You owed to Donovitz in connection with the
FAA.
RESPONSE: Conlon objects to this Interrogatory because it calls for the disclosure of attorney-
client privileged communications, and it calls for a legal conclusion.
MARY ELIZABETH CONLON’S OBJECTIONS AND RESPONSES
TO DEFENDANT AND COUNTERCLAIM PLAINTIFF
DR. GARY S. DONOVITZ’S FIRST SET OF INTERROGATORIES
Page 6
11. Identify every Communication and/or Meeting You had with Donovitz in which you
disclosed that under the BioTE A&R OA, Donovitz would no longer have the authority to control
BioTE Holdings, for each, state (a) the date and place of, (b) the identity of all Persons who were
involved, and (c) the topics of discussion.
RESPONSE: Conlon objects to this Interrogatory on the grounds that it is not reasonably calculated
to lead to the discovery of admissible evidence. Subject to and without waiving the foregoing and
General Objections, Conlon responds as follows: I do not recall having any such communications
with Dr. Donovitz.
12. Identify any duty You, in your capacity as the general counsel, understood that You owed to
Donovitz to advise him about potential conflicts of interest, and identify every step you took to inform
and/or advise Donovitz regarding such conflicts.
RESPONSE: Conlon objects to this Interrogatory because it calls for the disclosure of attorney-
client privileged communications, and it calls for a legal conclusion.
13. Identify any duty You [sic] which You understood that You owed to Members, managers and
shareholders of Biote Holdings, in your capacity as general counsel, from January 1, 2022, through
May 26, 2022.
RESPONSE: Conlon objects to this Interrogatory because it calls for the disclosure of attorney-client
privileged communications, and it calls for a legal conclusion.
14. State each reason why Weber Probation Letter was not in effect.
RESPONSE: Conlon objects to this Interrogatory because it calls for the disclosure of attorney-client
privileged communications and calls for a legal conclusion.
MARY ELIZABETH CONLON’S OBJECTIONS AND RESPONSES
TO DEFENDANT AND COUNTERCLAIM PLAINTIFF
DR. GARY S. DONOVITZ’S FIRST SET OF INTERROGATORIES
Page 7
15. Identify any duty which You understood that You owed, in your capacity as general counsel,
to any executive of Biote Holdings, when an executive’s interests become adverse to the interests of
Biote Holdings.
RESPONSE: Conlon objects to this Interrogatory because it calls for the disclosure of attorney-
client privileged communications, and it calls for a legal conclusion.
16. Describe in detail each Communication You had with Friedman regarding Donovitz, and for
each Communication, state (a) the date and (b) the content.
RESPONSE: Conlon objects to this Interrogatory because it is overly broad, unduly burdensome,
and not reasonably calculated to lead to the discovery of admissible evidence.
17. Describe in detail any work You performed related to the revisions to the FAA requested by
Donovitz, including without limitation, any market research You have conducted to determine the
commercial reasonableness of his requests such as compensation amount.
RESPONSE: Conlon objects to this Interrogatory because it calls for the disclosure of attorney-client
privileged information.
18. Identify every executive position(s) held by Donovitz on May 11, 2022. For each position,
state (a) the title and (b) the employer entity.
RESPONSE: Conlon objects to this Interrogatory as vague and ambiguous with respect to what is
meant by “executive position.” Subject to and without waiving the foregoing and General Objections,
as Conlon understands this interrogatory, she responds as follows:
BioTE Holdings, LLC – President and Secretary
BioTE Management, LLC – President, CEO and Secretary
MARY ELIZABETH CONLON’S OBJECTIONS AND RESPONSES
TO DEFENDANT AND COUNTERCLAIM PLAINTIFF
DR. GARY S. DONOVITZ’S FIRST SET OF INTERROGATORIES
Page 8
BioTE Medical, LLC – President and Secretary
19. State each reason to support your decision not to terminate Cooley’s engagement, as outside
counsel, after Donovitz instructed You to do so.
RESPONSE: Conlon objects to this Interrogatory on the grounds that it is not reasonably calculated
to lead to the discovery of admissible evidence.
20. State each reason to support your decision not to provide Donovitz with the operating
agreement and its exhibits when he requested them on July 12, 2022.
RESPONSE: Conlon objects to this Interrogatory because it is not reasonably calculated to lead to
the discovery of admissible evidence. Conlon further objects this Interrogatory because it calls for
the disclosure of attorney-client privileged communications.
21. Identify every authority Donovitz had, including without limitation, the authority to make all
decisions regarding hiring and firing of employees, on May 6, 2022.
RESPONSE: Conlon objects to this Interrogatory on the grounds that it is vague, unintelligible, and
appears to call for a legal conclusion. Conlon further objects to this Interrogatory to the extent it seeks
disclosure of attorney-client privileged communications.
22. Identify any BCA liabilities which You understood Donovitz would have incurred if BCA
was terminated prior to the merger.
RESPONSE: Conlon objects to this Interrogatory because it is vague and ambiguous with respect to
“terminated.”
MARY ELIZABETH CONLON’S OBJECTIONS AND RESPONSES
TO DEFENDANT AND COUNTERCLAIM PLAINTIFF
DR. GARY S. DONOVITZ’S FIRST SET OF INTERROGATORIES
Page 9
23. Describe in detail any due diligence conducted by You in connection with Your decision to
not inform the U.S. Securities and Exchange Commission regarding the Weber Probation Letter
including, without limitation, by specifying the time period during which such diligence occurred.
RESPONSE: Conlon objects to this Interrogatory because it is not reasonably calculated to lead to
the discovery of admissible evidence. Conlon further objects to this Interrogatory because it seeks
disclosure of attorney-client privileged communications.
Dated: June 16, 2023
Respectfully submitted,
MCKOOL SMITH, P.C.
By: _/s/ Alan S. Loewinsohn________________
Alan S. Loewinsohn
State Bar No. 12481600
aloewinsohn@mckoolsmith.com
Kerry F. Schonwald
State Bar No. 24051301
kschonwald@mckoolsmith.com
300 CRESCENT COURT, SUITE 300
DALLAS, TEXAS 75201
Telephone: (214) 978-4000
Facsimile: (214) 978-4044
ATTORNEYS FOR PLAINTIFF AND
COUNTERCLAIM DEFENDANTS
MARY ELIZABETH CONLON’S OBJECTIONS AND RESPONSES
TO DEFENDANT AND COUNTERCLAIM PLAINTIFF
DR. GARY S. DONOVITZ’S FIRST SET OF INTERROGATORIES
Page 10
CERTIFICATE OF SERVICE
The undersigned hereby certifies that a true and correct copy of the foregoing document
was served by electronic mail on June 16, 2023, on the following counsel:
wab@BrewerAttorneys.com
sbr@BrewerAttorneys.com
gap@BrewerAttorneys.com
_/s/ Alan S. Loewinsohn______
Alan S. Loewinsohn
MARY ELIZABETH CONLON’S OBJECTIONS AND RESPONSES
TO DEFENDANT AND COUNTERCLAIM PLAINTIFF
DR. GARY S. DONOVITZ’S FIRST SET OF INTERROGATORIES
Page 11
EXHIBIT 2
CAUSE NO. DC-22-08737
BIOTE MEDICAL, LLC, § IN THE DISTRICT COURT OF
§
Plaintiff, §
§
v. §
§
DR. GARY S. DONOVITZ AND LANI §
HAMMONDS DONOVITZ, individually §
and d/b/a LANI D. CONSULTING, §
§
Defendants; §
§
DR. GARY S. DONOVITZ, § DALLAS COUNTY, TEXAS
§
Counterclaim Plaintiff, §
§
v. §
§
BIOTE MEDICAL LLC, TERESA S. §
WEBER, individually, and MARY §
ELIZABETH CONLON, individually, §
§
Counterclaim Defendants. §
§
§
§ 134TH JUDICIAL DISTRICT
MARY ELIZABETH CONLON’S OBJECTIONS AND RESPONSES TO
DEFENDANT AND COUNTERCLAIM PLAINTIFF
GARY DONOVITZ’S FIRST REQUEST FOR PRODUCTION
TO: Defendant and Counterclaim Plaintiff Gary Donovitz, by and through his attorney of
record, Sarah Rogers, at Brewer, Attorneys & Counselors, 1717 Main Street, Suite 5900,
Dallas, Texas 75201.
Pursuant to Texas Rule of Civil Procedure 196, Counterclaim Defendant Mary Elizabeth
Conlon (“Conlon”) serves her Objections and Responses to Defendant and Counterclaim Plaintiff
Gary Donovitz’s (“Gary”) First Request for Production to Mary Elizabeth Conlon (“Request”),
without prejudice to subsequently discovered information, as follows:
MARY ELIZABETH CONLON’S OBJECTIONS AND RESPONSES TO
GARY DONOVITZ’S FIRST REQUEST FOR PRODUCTION Page 1
I.
GENERAL OBJECTIONS
1. Conlon fully intends to assert any and all applicable privileges, exemptions and
protections from discovery, and Conlon’s disclosure of any information covered by a privilege,
protection, or exemption from discovery is inadvertent and not intended to waive any rights.
2. By disclosing any information, Conlon expressly preserves and does not waive any
and all objections she may have to the admissibility, authenticity, relevancy or confidentiality of
the information or documents.
3. Conlon objects to the Requests, including the definitions and instructions set forth
therein, to the extent that they are inconsistent with the Texas Rules of Civil Procedure (“TRCP”),
or attempt to impose broader obligations on Conlon than what is required under the TRCP.
4. Conlon makes these responses with the understanding that she does not agree that
any of Gary’s definitions are either factually or legally binding on her, including but not limited to
the purported definition of “BioTE Executives” or “anyone acting on their behalf” which is overly
broad, unduly burdensome and harassing.
5. Conlon incorporates each of the foregoing objections in specific response to the
Request and, when appropriate, will state additional, specific objections to the Request.
6. Subject to and without waiving the foregoing, Conlon reserves the right to amend
or supplement these responses and her document productions in accordance with TRCP 193.5.
MARY ELIZABETH CONLON’S OBJECTIONS AND RESPONSES TO
GARY DONOVITZ’S FIRST REQUEST FOR PRODUCTION Page 2
II.
RESPONSES AND OBJECTIONS TO THE REQUEST FOR PRODUCTION
REQUEST NO. 1:
All Documents and Communications relating to Donovitz, the FAA or the SPAC Merger.
This Request includes, without limitation, telephone records reflecting Communications with:
Cooley, Haymaker, DLA Piper, Truist, any Merger Advisor, and/or any BioTE Executive. This
Request covers the period from April 1, 2022 to May 26, 2022.
RESPONSE: Conlon objects to this Request as overly broad, unduly burdensome, and not
reasonably calculated to lead to the discovery of admissible evidence. Conlon further objects to this
Request on the grounds that it calls for speculation. Conlon further objects to this Request because it
fails to identify the documents sought with reasonably particularity. With respect to the portion of
the request seeking documents and communications relating to the FAA, all non-privileged,
responsive documents located after a reasonable and diligent search have already been produced.
REQUEST NO. 2:
All Communications with Donovitz concerning Donovitz’s actual or expected post-merger
role with Biote including, without limitation, communications about the nature, extent, scope,
modification, or absence of any (i) board authority; (ii) ex officio board position; (iii) chief medical
officer position; (iv) executive decision-making authority; (v) authority over doctor education
programs; (vi) authority over international business development or (vii) advisory powers to be
exercised by Donovitz post-merger.
RESPONSE: Conlon objects to this Request as harassing and unduly burdensome to the extent it is
repetitive of questions asked of Ms. Conlon in her deposition. Conlon further objects to this Request
because it fails to identify the documents sought with reasonably particularity. Subject to and without
MARY ELIZABETH CONLON’S OBJECTIONS AND RESPONSES TO
GARY DONOVITZ’S FIRST REQUEST FOR PRODUCTION P
Preview
FILED 6/26/2023 10:07 AM FELICIA PITRE DISTRICT CLERK DALLAS CO., TEXAS Steve Brashear DEPUTY June 26, 2023 VIA E-FILE Judge Tillery 134th District Court George L. Allen, Sr. Courts Building 600 Commerce Street 6th Floor West Dallas, Texas 75202 Re: Biote Medical, LLC v. Dr. Gary S. Donovitz, et al; Cause No. DC-22-08737, in the 134th Judicial District Court, Dallas County, Texas Dear Judge Tillery, Pursuant to the Court’s guidance at the hearing in the above-captioned matter dated June 23, 2023 (the “Hearing”), we write on behalf of Defendant Dr. Gary S. Donovitz (“Donovitz”) to furnish examples of Counterclaim Defendants’ 1 refusals to respond to germane discovery informing the defenses they untimely seek to inject: attorney immunity, standing, capacity, and release. With respect to the release defense in particular, we also write to provide additional information about the collateral lawsuit in Delaware, instigated by Counterclaim Defendants and their affiliates, where claims related to the BCA 2 are slated to be heard. A. Attorney Immunity Counterclaim Defendants have persistently blocked discovery about Conlon’s attorney- client relationship with (i) Donovitz and (ii) the various Biote Companies she will presumably claim to have represented as part of her attorney-immunity defense. Incredibly, counsel instructed Conlon not to answer which companies or individuals she represents, whether she performed legal work relating to the merger agreement, or who her client was. Counterclaim Defendants have also obstructed discovery about Conlon’s individual representation of Donovitz. For example: 1. Although it is undisputed that Conlon was Donovitz’s personal lawyer, 3 Conlon totally refused to produce documents regarding her legal representation of Donovitz individually. 4 1 “Counterclaim Defendants” shall refer to Biote Medical LLC, Mary Elizabeth Conlon, and Teresa Weber. 2 The “BCA” shall refer to that certain Business Combination Agreement executed among Donovitz, Biote Holdings LLC, the Haymaker SPAC, and other entities as of December 13, 2021. 3 Affidavit of Mary Elizabeth Conlon, filed October 4, 2022, at ¶ 5. 4 See Exhibit 2 hereto (Mary Elizabeth Conlon’s Objections and Responses to Defendant and Counterclaim Plaintiff Gary Donovitz’s First Request for Production dated June 16, 2023) (the “Conlon RFP Objections”) at page 6 (Request No. 9). Biote Medical similarly refused to produce documents during the timeframe of the FAA negotiations that “relate[d] to Counterclaim Defendant Mary Elizabeth Conlon’s legal relationship or representation of Dr. Donovitz[.]” See Exhibit 3 hereto (Biote Medical LLC’s Objections to Defendant and Counterclaim Plaintiff Gary Donovitz’s Judge Tillery June 26, 2023 Page 2 2. Conlon’s attorney-immunity defense would presumably rest on the argument that she did not perform work for Donovitz individually in connection with the FAA. But in response to an interrogatory asking about work she performed for Donovitz on the FAA, Conlon refused to answer. 5 3. Counterclaim Defendants similarly refused to respond to other discovery about the relationship, and advice exchanged, among Conlon and Donovitz: a. Conlon also refused to produce her communications (including her advice or warnings) to Donovitz regarding liabilities he might individually owe under the BCA. 6 This refusal is key, because Donovitz alleges that Conlon provided him personal, individualized legal advice on this topic. b. Asserting privilege, Conlon refused to give her understanding regarding whether she owed duties to Donovitz in connection with the SPAC merger 7 or the FAA, 8 or indeed whether she owed duties to any corporate constituents in her capacity as general counsel. 9 4. Pursuant to counsel’s instruction, when deposed, Conlon refused to answer: a. Which Biote companies she is General Counsel of. 10 b. Whether she performed legal work relating to the negotiation of the BCA, 11 and, if so, who her client was. 12 c. Whether she was General Counsel to Biote Holdings LLC, the holding company that signed the BCA, during the period when the contracts in this case were negotiated. 13 Second Request for Production of Documents dated Sep. 1, 2022) (the “Biote 2nd RFP Objections”) at page 5 (Request No. 5). 5 See Exhibit 1 hereto (Mary Elizabeth Conlon’s Objections and Responses to Defendant and Counterclaim Plaintiff Gary Donovitz’s First Set of Interrogatories dated June 16, 2023) (“Conlon Interrogatory Objections”) at page 8 (Interrogatory No. 17). 6 See Exhibit 2 (Conlon RFP Objections) at page 4 (Request No. 4). 7 Exhibit 1 (Conlon Interrogatory Objections) at page 6 (Interrogatory No. 9). 8 Id. at pages 6-7 (Interrogatory No. 10). 9 Id. at page 7 (Interrogatory No. 13). 10 See Exhibit 4 hereto (Deposition of Mary Conlon Dated Sep. 20, 2022) (“Conlon Dep. Tr.”) at 40:3-41:20. 11 Id. at 94:17-95:24 12 Id. at 95:25-96:20. 13 Id. at 24:14-25:7. Judge Tillery June 26, 2023 Page 3 d. Whether she provides legal advice about contract negotiations, 14 or litigation, 15 to the owners or managers of various Biote Companies. i. Such questions are relevant to an attorney-immunity defense because Donovitz was a key constituent (an owner and manager of multiple entities) within the Biote corporate structure, so the provision of legal services to managers or shareholders as a group would preclude an attorney-immunity defense as against Donovitz. ii. Indeed, Conlon refused to answer whether she provides any legal advice whatsoever to the managers (i.e., the directors) of Biote Medical—despite being the company’s General Counsel. 16 iii. She also refused to answer whether she consulted shareholders about the contract revisions she now argues were performed on behalf of an unspecified corporate entity, in a negotiation adverse to the entities’ shareholder. 17 e. Counsel instructed Conlon not to answer whether there was a malpractice insurance policy governing her work as Biote General Counsel during the period the FAA was negotiated. 18 The details of such a policy would be probative of which companies Conlon represented, the nature of the legal services she was employed to perform, and whether her representation was envisioned to extend to key constituents like Donovitz—but Counterclaim Defendants have blocked discovery on this issue. f. Conlon also refused to answer questions about fiduciary duties and conflicts that pertain directly to whether she was negotiating adverse to Donovitz (or by contrast owed duties to him), and whether Donovitz had reason to understand this. Conlon refused to answer: i. Her understanding of what a fiduciary is. 19 ii. Whether she takes steps to advise corporate constituents about potential conflicts, or understands she has any duty to do so. 20 iii. Whether she had a duty to advise Donovitz about potential conflicts of interest in connection with the merger. 21 14 See id. at 31:15-23. 15 See id. at 29:25-30:8. 16 Id. at 32:4-12. 17 Id. at 212:2-9. 18 Id. at 66:4-67:13. 19 Id. at 85:20-86:4. 20 Id. at 80:4-83:3. 21 Id. at 136:13-24. Judge Tillery June 26, 2023 Page 4 iv. Whether she had any independent understanding – excluding legal advice – about a general counsel’s fiduciary duties to shareholders. 22 B. Standing and Capacity Counterclaim Defendants have persistently blocked discovery concerning the organizational structure and governance of the corporate entities at issue. This includes discovery concerning which corporate constituents reported to whom, how voting powers were allocated and exercised, and other “circumstances surrounding the creation and operation” of the relevant corporate entities which shape whether “justice requires” a Texas court to treat a derivative claim as a direct one. 23 And importantly, even if Counterclaim Defendants are permitted to interpose a standing or capacity defense, they should not be permitted to ground it on Teresa Weber’s purported designation as “Members’ Representative” (i.e., attorney-in-fact) for the shareholders of Biote Holdings, because Counterclaim Defendants have totally refused to produce documents on that issue. For example, Counterclaim Defendants have blocked discovery regarding: 1. Whether Biote contends that any individual other than Donovitz could have exercised board powers (and thus authorized a direct lawsuit) during the relevant period. 24 2. Weber’s appointment as Members’ Representative of Holdings. 25 3. In response to an interrogatory, Conlon refused to answer why she had previously refused to provide Donovitz a complete, accurate copy of the Biote Holdings Operating Agreement. 26 22 Id. at 190:23-191:9. 23 See, e.g., Saden v. Smith, 415 S.W.3d 450, 463 (Tex. App. 2013) (“If justice requires,” a court may treat a shareholder’s derivative claim as direct. Facts which supported direct shareholder standing in this case included: the fact that direct duties were owed under relevant contracts, articles of incorporation, and bylaws; the fact that the structure was closely held; and, other facts about “the creation and operation of [the corporate entity] and the “factual circumstances of the relationship between [litigants] prior to the formation of [the entity].”). Notably, the Texas derivative-standing analysis only governs standing and capacity defenses to the extent they are asserted with respect to Biote Medical LLC, a Texas entity. To the extent that claims are asserted to be vested in Biote Holdings LLC (formerly a Nevada and currently a Delaware entity), the derivative-standing analysis would be governed by Nevada or Delaware law—but would still hinge on facts about the entities’ ownership and operation. See, e.g., Gephart v. Merryman, No. 218CV01670GMNCWH, 2018 WL 11266888, at *3 (D. Nev. Nov. 6, 2018) (considering capital structure and whether a multiplicity of claims, or harm to creditors, would result from a direct suit). 24 See Exhibit 5 hereto (Plaintiff’s Objections and Responses to Dr. Gary Donovitz’s Third Set of Interrogatories to Biote Medical LLC dated Apr. 28, 2023) (“Biote’s 3rd Interrogatory Objections”) at page 8 (Interrogatory No. 14). 25 See Exhibit 6 hereto (Teresa S. Weber’s Objections and Responses to Defendant and Counterclaim Plaintiff Gary Donovitz’s First Request for Production dated June 16, 2023) (the “Weber RFP Objections”) at page 4 (Request No. 4). 26 See Exhibit 1 (Conlon Interrogatory Objections) at page 9 (Interrogatory No. 20). Judge Tillery June 26, 2023 Page 5 4. Board meetings and minutes of Biote Medical, 27 including pre-merger public-company board meetings held during Spring 2022 without Donovitz’s knowledge. 28 a. Counterclaim Defendants even claimed not to know what the term “board” meant, in the context of discovery requests regarding board minutes and meetings. 29 5. Board meetings and minutes of Biote Holdings. 30 Indeed, Counterclaim Defendants refuse even to admit or deny whether board meetings occurred. 31 6. Documents “relating to the governance of” entities of which Dr. Donovitz was a shareholder during the period the BCA and FAA were negotiated; 32 7. Documents relating to which executives were compensated by which corporate entities, and how (i.e., equity or incentive units). 33 8. In response to an interrogatory, Biote Medical refused to identify corporate documents that it contends governed fiduciary duties of officers, managers, and directors. 34 9. Counterclaim Defendants claim to lack “sufficient information to admit or deny” rudimentary facts about the Biote entities’ corporate governance, such as whether Donovitz was the sole member of a single-member LLC. 35 C. Release As discussed at the Hearing, Counterclaim Defendants have been particularly insistent about foreclosing discovery relating to the BCA, which was a distinct contract negotiated and signed roughly five months prior to the FAA. Counterclaim Defendants’ justification was that such matters belonged “in See Exhibit 7 hereto (Biote Medical LLC’s Objections and Responses to Defendant and Counterclaim Plaintiff Gary 27 Donovitz’s Fifth Request for Production dated June 16, 2023) (“Biote’s 5th RFP Objections”) at page 3 (Request No.1). 28 See Exhibit 2 (Conlon RFP Objections) at page 8 (Request No. 14). 29 See Exhibit 8 hereto (Plaintiff’s First Amended Objections and Responses to Defendant Dr. Gary S. Donovitz’s Third Set of Requests for Admissions to Biote Medical LLC dated April 23, 2023) (“Biote’s 3rd RFA Objections”) at page 8 (Request No. 42). 30 See Exhibit 7 (Biote’s 5th RFP Objections) at page 3 (Request No. 2). 31 See Exhibit 8 (Biote’s 3rd RFA Objections) at page 8 (Request No. 43). See Exhibit 9 hereto (Biote Medical LLC’s Objections and Responses to Defendant and Counterclaim Plaintiff Gary 32 Donovitz’s Third Request for Production dated Mach 1, 2023) (“Biote’s 3rd RFP Objections”) at pages 3-4 (Request No. 11). 33 See id. at page 4 (Request 12). After refusing to produce these documents to Donovitz, Plaintiff furnished the documents to it own experts for his report. 34 See Exhibit 5 (Biote’s 3rd Interrogatory Objections) at page 15 (Interrogatory No. 25). 35 See Exhibit 8 (Biote’s 3rd RFA Objections) at page 3 (Request No. 25). Judge Tillery June 26, 2023 Page 6 Delaware” 36 This was grounded on a mandatory forum-selection clause in the BCA, which provided in relevant part that proceedings “arising out of or related to [the BCA],” and any “claims in respect of [such] [p]roceeding,” had to be brought in Delaware. During October 2022, Biote 37 tried to leverage this clause to enjoin counterclaims and affirmative defenses pleaded here by Donovitz regarding the FAA. Importantly, none of Donovitz’s counterclaims or defenses mention, let alone seek to enforce provisions of, the BCA. When it denied Biote’s anti-suit injunction against Donovitz, the Delaware court acknowledged some overlap between the Delaware case (where BCA claims will be heard) and this Texas case (centering on the FAA), but also emphasized this core distinction, explaining: Notably, there's no reference in these counterclaims or affirmative defenses to the combination agreement. There are no theories that invoke, arise out of, or touch on the provisions of the combination agreement [i.e. the BCA]. I'm sure that was intentional. Admittedly, there is factual overlap. This whole dispute is ultimately traceable to one big de-SPAC merger deal that Donovitz views as disastrous and presumably the people on the buy side view as successful. Factually, it all relates to that. But in terms of the legal issues that are being litigated in Texas, those are separate. 38 (emphasis added). After Donovitz finished litigating his Texas counterclaims and affirmative defenses, the Delaware court reasoned, the parties could return and litigate the remaining BCA issues (about which there was not “really any fight” regarding the appropriate forum) in Delaware. 39 So, the parties proceeded accordingly. Even where Donovitz sought Texas fact discovery relating to the BCA, Counterclaim Defendants refused to provide any—both before and after the Delaware court weighed in. For example: 36 See Exhibit 3 (BioTE’s 2nd RFP Objections) at p. 5 (Request No. 5). 37 The Delaware litigation discussed here was initially brought by Biote Corp.; ultimately, other entities, including Biote Medical and each of the individual Counterclaim Defendants Weber and Conlon, joined the case. By the time the injunction request was heard on November 4, 2022, each of the Counterclaim Defendants named herein was a party to the Delaware proceeding and a proponent of the anti-suit injunction. 38 See Exhibit 10 hereto (Transcript of Oral Argument dated Nov. 4, 2022, Del Ch. C.A. No. 2022-0611-JTL) at 42:14- 43:2. 39 See id. at 56:5-57:3. Judge Tillery June 26, 2023 Page 7 1. Counterclaim Defendants flatly refused to produce any documents regarding “the negotiation of the Business Combination Agreement,” 40 insisting such documents were irrelevant (“not reasonably calculated to lead to the discovery of admissible evidence”). 2. Following counsel’s instruction, Conlon refused to answer whether she performed legal work relating to the negotiation of the BCA, 41 and which clients she was representing when the BCA was being negotiated. 42 3. Weber refused to testify regarding her own contemporaneous understanding, during the FAA negotiations, of purportedly-relevant BCA provisions, claiming that her understandings about the BCA were privileged because she discussed them with lawyers. 43 4. Weber refused to answer interrogatories about the BCA, including interrogatories bearing directly on its validity and enforceability, such as whether material facts about the BCA were disclosed to shareholders. 44 5. Counterclaim Defendants have persistently given caveated, evasive, inadequate responses to requests for admissions which reproduce key language from the BCA verbatim and ask Counterclaim Defendants to admit to its applicability. 45 6. Counterclaim Defendants have persistently blocked discovery about the parties’ communications and relationships with the Cooley law firm, which played an instrumental role framing the BCA and explaining its provisions to Donovitz. 46 Finally, Donovitz notes that an amendment interposing a defense of release under the BCA would be futile and fail as a matter of law, including because (i) the release executed on Section 5.13 of the BCA was conferred on behalf of Biote Holdings LLC and certain affiliates, not Donovitz individually; 47 and (ii) 40 See Exhibit 9 (Biote’s 3rd RFP Objections) at page 5 (Request No. 15); see also Exhibit __ (Weber’s 1st RFP Objections) at page 6 (Request No. 9). 41 Exhibit 4, Conlon Dep. Tr. at 94:17-95:24 42 Id. at 95:25-96:20. 43 See Exhibit 11 hereto (Deposition of Teresa Weber dated Dec. 16, 2022) (“Weber Dep. Tr.”) at 39:6-40:24. 44 See Exhibit 12 hereto (Teresa S. Weber’s Objections and Responses to Defendant and Counterclaim Plaintiff Dr. Gary S. Donovitz’s First Set of Interrogatories to Teresa S. Weber) (“Weber Interrogatory Objections”) at page 8 (Interrogatory No. 15). 45 See Exhibit 13 hereto (Plaintiff’s Objections and Responses to Defendant Dr. Gary S. Donovitz’s Second Request for Admission to Biote Medical LLC dated January 30, 2023) (“Biote’s 2nd RFA Objections”) at page 3 (Requests No. 14-16). Plaintiff dodges and fails to respond to these Requests on the ground that their language is purportedly ambiguous, but the contested language (“subject to the satisfaction or written waiver..”) is excerpted directly from the BCA that Counterclaim Defendants now seek to enforce. See Exhibit 14 hereto (BCA Excerpts) at 8.1(a). 46 See Exhibit 3 hereto (Biote Medical LLC’s Objections to Defendant and Counterclaim Plaintiff Gary Donovitz’s Second Request for Production of Documents dated Sep. 1, 2022) (the “Biote 2nd RFP Objections”) at page 4 (Request No. 4). 47 See Exhibit 14 hereto (BCA Excerpts) at Section 5.13 (“Company Releasing Parties”). To the extent that the Company’s conferral of this release purports to bind Donovitz in his individual capacity, as a controlling Affiliate or Judge Tillery June 26, 2023 Page 8 Delaware public policy prohibits prospective waivers or releases of liability for reckless or intentional torts, including intentional breaches of fiduciary duty. 48 . Respectfully submitted, BREWER, ATTORNEYS & COUNSELORS By: /s/ Sarah B. Rogers Sarah B. Rogers COUNSEL FOR DEFENDANT DR. GARY S. DONOVITZ otherwise, the validity of the release depends inter alia on whether Donovitz authorized the Company to execute it on his behalf—and Counterclaim Defendants have refused to produce documents that would enable such an inquiry. 48 This issue was discussed at length in a recent opinion by Vice Chancellor J. T. Laster, who is presiding over the parties’ Delaware litigation. See New Enter. Assocs. 14, L.P. v. Rich, No. 2022-0406-JTL, 2023 WL 3195927, at *52 (Del. Ch. May 2, 2023). EXHIBIT 1 CAUSE NO. DC-22-08737 BIOTE MEDICAL, LLC, § IN THE DISTRICT COURT § Plaintiff, § § v. § § DR. GARY S. DONOVITZ AND LANI § HAMMONDS DONOVITZ, individually § and dba LANI D. CONSULTING, § § Defendants. § § DR. GARY S. DONOVITZ, § DALLAS COUNTY, TEXAS § Counterclaim Plaintiff, § § v. § § BIOTE MEDICAL, LLC, TERESA S. § WEBER, individually, and MARY § ELIZABETH CONLON, individually, § § Counterclaim Defendants. § § § 134th JUDICIAL DISTRICT MARY ELIZABETH CONLON’S OBJECTIONS AND RESPONSES TO DEFENDANT AND COUNTERCLAIM PLAINTIFF DR. GARY S. DONOVITZ’S FIRST SET OF INTERROGATORIES TO MARY ELIZABETH CONLON TO: Defendant and Counterclaim Plaintiff Dr. Gary S. Donovitz, by and through his counsel of record Sarah Rogers, Brewer, Associates & Counselors, 1717 Main Street, suite 5900, Dallas, Texas 75201. Pursuant to the Texas Rules of Civil Procedure, Counterclaim Defendant Mary Elizabeth Conlon (“Conlon”), hereby serves her Objections and Responses (“Response”) to Defendant and Counterclaim Plaintiff Dr. Gary S. Donovitz’s First Set of Interrogatories propounded to her by Dr. Gary S. Donovitz (“Gary”), without prejudice to subsequently discovered information, and amendment, as follows: MARY ELIZABETH CONLON’S OBJECTIONS AND RESPONSES TO DEFENDANT AND COUNTERCLAIM PLAINTIFF DR. GARY S. DONOVITZ’S FIRST SET OF INTERROGATORIES Page 1 PRELIMINARY STATEMENT Counterclaim Defendant Mary Elizabeth Conlon has not: (a) completed her investigation of the facts related to this action; (b) interviewed all witnesses in this action; (c) completed discovery in this action; or (d) completed her preparation for trial. The responses contained herein are based on such information which is presently available and specifically known to her and discloses only that information which is presently known to her. It is anticipated that additional discovery will supply additional facts, and meaning to known facts, and potentially establish additional factual conclusions and legal conclusions, all of which may lead to additions to or amendments of Conlon’s answers herein. The following objections and responses are given without prejudice to Conlon’s right to modify, alter, amend or retract same based on any subsequently discovered information or evidence. Conlon accordingly reserves the right to supplement any and all responses/answers herein as additional information is ascertained and analyzed. The responses/answers contained herein are made in a good faith effort to supply as much information and as much specification as is presently known. GENERAL OBJECTIONS 1. Conlon objects to Gary’s instructions, definitions and other explanatory statements to the extent that Gary intends to expand or alter Conlon’s obligations in responding to these Interrogatories under the Texas Rules of Civil Procedure. Conlon will comply with the Texas Rules of Civil Procedure in providing answers and objections to these Interrogatories. 2. Conlon fully intends to assert any and all applicable privileges, exemptions and protections from discovery, and Conlon’s disclosure of any information covered by a MARY ELIZABETH CONLON’S OBJECTIONS AND RESPONSES TO DEFENDANT AND COUNTERCLAIM PLAINTIFF DR. GARY S. DONOVITZ’S FIRST SET OF INTERROGATORIES Page 2 privilege, protection, or exemption from discovery is inadvertent and not intended to waive any rights. 3. Conlon makes these responses with the understanding that she does not agree that any of Gary’s definitions are either factually or legally binding on it, including but not limited to the purported definition of “Biote” or “anyone acting on its behalf” which is overly broad, unduly burdensome and harassing. 4. Conlon further objects to these Interrogatories to the extent they seek to require her to identify information from written communications which either have already been produced and are equally available to Gary or are simultaneously requested via requests for production. Conlon will treat requests to “identify all communications” to refer to oral communications. 5. Conlon also objects to the Interrogatories as duplicative, burdensome, and harassing to the extent they are duplicative of information already sought from her in oral discovery. 6. Conlon incorporates each of the foregoing objections in specific response to the Interrogatories and, when appropriate, will state additional, specific objections to such Interrogatory. INTERROGATORIES 1. Identify each Communication between You and a Third-Party Witness regarding this lawsuit. RESPONSE: Subject to and without waiving the foregoing and General Objections, Conlon responds as follows: none. MARY ELIZABETH CONLON’S OBJECTIONS AND RESPONSES TO DEFENDANT AND COUNTERCLAIM PLAINTIFF DR. GARY S. DONOVITZ’S FIRST SET OF INTERROGATORIES Page 3 2. Identify each of Your Communications relating to the Net Tangible Assets Closing Condition including, without limitation, Communications relating to the May 19 Waiver. This Interrogatory covers the period from December 13, 2021, to May 26, 2022. RESPONSE: Subject to and without waiving the General Objections, Conlon responds as follows: I do not recall having any oral communications relating to the Net Tangible Assets Closing Condition. I received an email on May 23, 2022, from Jarrett Burks at Cooley attaching a fully executed copy of the waiver for my records. 3. Identify each of Your Communications with Donovitz regarding the potential impact of Buyer Shareholder Redemptions on any Closing Date Payments. This Interrogatory covers the period from December 13, 2021, through May 26, 2022, and covers any Communication to which You and Donovitz were party, regardless of whether other Persons also participated. RESPONSE: Subject to and without waiving the General Objections, I do not recall having any such communications. 4. Identify each of Your Communications with Donovitz regarding the amount of Cash Consideration he would receive from the Closing Date Payments. This Interrogatory covers the period from January 1, 2022, through May 26, 2022. RESPONSE: Subject to and without waiving the General Objections, I do not recall having any such communications. 5. Identify each of Your Communications regarding the Weber Probation Letter. This Interrogatory covers the period from May 5, 2022, through May 26, 2022. MARY ELIZABETH CONLON’S OBJECTIONS AND RESPONSES TO DEFENDANT AND COUNTERCLAIM PLAINTIFF DR. GARY S. DONOVITZ’S FIRST SET OF INTERROGATORIES Page 4 RESPONSE: Conlon objects to this Interrogatory because it is not reasonably calculated to lead to the discovery of admissible evidence. Conlon further objects to this Interrogatory on the grounds that it seeks disclosure of attorney-client privileged communications. 6. Identify every Communication and Meeting regarding the post-merger governance of the BioTE Companies, including without limitation, Donovitz’s post-merger role, his request for a post-merger contract with any of the BioTE Companies, and/or the potential provision of such contract. This Interrogatory covers the period from January 1, 2022, through May 26, 2022. RESPONSE: Conlon objects to this Interrogatory as overly broad and unduly burdensome in its request for her to “identify every communication and meeting regarding the post-merger governance of the BioTE Companies” and because it fails to specify about whose communications and meetings the Interrogatory is referring. Conlon further objects to this Interrogatory on the grounds that it seeks disclosure of attorney-client privileged communications. Subject to and without waiving the foregoing and General Objections, other than privileged communications, and other than the written communications that have already been produced, and oral communications that I testified to in my deposition, I do not recall having any other non-privileged communications regarding Donovitz’s post-merger role or his request for a post-merger contract and/or the potential provision of such contract. 7. Identify any data that you provided to Donovitz about the SPAC merger, and for each, state (a) the date on which it was conveyed and (b) the medium in which it was conveyed. RESPONSE: Conlon objects to this Interrogatory as overly broad, unduly burdensome and not reasonably calculated to lead to the discovery of admissible evidence. MARY ELIZABETH CONLON’S OBJECTIONS AND RESPONSES TO DEFENDANT AND COUNTERCLAIM PLAINTIFF DR. GARY S. DONOVITZ’S FIRST SET OF INTERROGATORIES Page 5 8. Identify every Communication in which You disclosed to Donovitz, as the Sole Manager of BioTE Holdings, (a) the impact of the Buyer Share Redemption on Cash Consideration, and (b) that BioTE Holdings would not receive the entire amount designated by the Closing Date Payments, for each Communication, state (a) the date and (b) the content. RESPONSE: Conlon objects to this Interrogatory as vague and ambiguous with respect to what is meant by “the entire amount designated by the Closing Date Payments.” Subject to and without waiving the foregoing and General Objections, Conlon responds as follows: I had a number of conversations with Donovitz before the BCA was signed, although I do not recall specific dates, where I explained that the amount of redemptions affected how much cash there would be at closing to distribute under the waterfall. I do not recall having any communications in the specified time period with Dr. Donovitz where I stated specifically that BioTE Holdings would not receive the entire amount designated by the Closing Date Payments, although I never told him that there was any amount of money that BioTE Holdings was, in fact, guaranteed to receive. 9. Identify any duty which You understood that You owed to Donovitz in connection with the SPAC merger. RESPONSE: Conlon objects to this Interrogatory because it calls for the disclosure of attorney- client privileged communications, and it calls for a legal conclusion. 10. Identify any duty which You understood that You owed to Donovitz in connection with the FAA. RESPONSE: Conlon objects to this Interrogatory because it calls for the disclosure of attorney- client privileged communications, and it calls for a legal conclusion. MARY ELIZABETH CONLON’S OBJECTIONS AND RESPONSES TO DEFENDANT AND COUNTERCLAIM PLAINTIFF DR. GARY S. DONOVITZ’S FIRST SET OF INTERROGATORIES Page 6 11. Identify every Communication and/or Meeting You had with Donovitz in which you disclosed that under the BioTE A&R OA, Donovitz would no longer have the authority to control BioTE Holdings, for each, state (a) the date and place of, (b) the identity of all Persons who were involved, and (c) the topics of discussion. RESPONSE: Conlon objects to this Interrogatory on the grounds that it is not reasonably calculated to lead to the discovery of admissible evidence. Subject to and without waiving the foregoing and General Objections, Conlon responds as follows: I do not recall having any such communications with Dr. Donovitz. 12. Identify any duty You, in your capacity as the general counsel, understood that You owed to Donovitz to advise him about potential conflicts of interest, and identify every step you took to inform and/or advise Donovitz regarding such conflicts. RESPONSE: Conlon objects to this Interrogatory because it calls for the disclosure of attorney- client privileged communications, and it calls for a legal conclusion. 13. Identify any duty You [sic] which You understood that You owed to Members, managers and shareholders of Biote Holdings, in your capacity as general counsel, from January 1, 2022, through May 26, 2022. RESPONSE: Conlon objects to this Interrogatory because it calls for the disclosure of attorney-client privileged communications, and it calls for a legal conclusion. 14. State each reason why Weber Probation Letter was not in effect. RESPONSE: Conlon objects to this Interrogatory because it calls for the disclosure of attorney-client privileged communications and calls for a legal conclusion. MARY ELIZABETH CONLON’S OBJECTIONS AND RESPONSES TO DEFENDANT AND COUNTERCLAIM PLAINTIFF DR. GARY S. DONOVITZ’S FIRST SET OF INTERROGATORIES Page 7 15. Identify any duty which You understood that You owed, in your capacity as general counsel, to any executive of Biote Holdings, when an executive’s interests become adverse to the interests of Biote Holdings. RESPONSE: Conlon objects to this Interrogatory because it calls for the disclosure of attorney- client privileged communications, and it calls for a legal conclusion. 16. Describe in detail each Communication You had with Friedman regarding Donovitz, and for each Communication, state (a) the date and (b) the content. RESPONSE: Conlon objects to this Interrogatory because it is overly broad, unduly burdensome, and not reasonably calculated to lead to the discovery of admissible evidence. 17. Describe in detail any work You performed related to the revisions to the FAA requested by Donovitz, including without limitation, any market research You have conducted to determine the commercial reasonableness of his requests such as compensation amount. RESPONSE: Conlon objects to this Interrogatory because it calls for the disclosure of attorney-client privileged information. 18. Identify every executive position(s) held by Donovitz on May 11, 2022. For each position, state (a) the title and (b) the employer entity. RESPONSE: Conlon objects to this Interrogatory as vague and ambiguous with respect to what is meant by “executive position.” Subject to and without waiving the foregoing and General Objections, as Conlon understands this interrogatory, she responds as follows: BioTE Holdings, LLC – President and Secretary BioTE Management, LLC – President, CEO and Secretary MARY ELIZABETH CONLON’S OBJECTIONS AND RESPONSES TO DEFENDANT AND COUNTERCLAIM PLAINTIFF DR. GARY S. DONOVITZ’S FIRST SET OF INTERROGATORIES Page 8 BioTE Medical, LLC – President and Secretary 19. State each reason to support your decision not to terminate Cooley’s engagement, as outside counsel, after Donovitz instructed You to do so. RESPONSE: Conlon objects to this Interrogatory on the grounds that it is not reasonably calculated to lead to the discovery of admissible evidence. 20. State each reason to support your decision not to provide Donovitz with the operating agreement and its exhibits when he requested them on July 12, 2022. RESPONSE: Conlon objects to this Interrogatory because it is not reasonably calculated to lead to the discovery of admissible evidence. Conlon further objects this Interrogatory because it calls for the disclosure of attorney-client privileged communications. 21. Identify every authority Donovitz had, including without limitation, the authority to make all decisions regarding hiring and firing of employees, on May 6, 2022. RESPONSE: Conlon objects to this Interrogatory on the grounds that it is vague, unintelligible, and appears to call for a legal conclusion. Conlon further objects to this Interrogatory to the extent it seeks disclosure of attorney-client privileged communications. 22. Identify any BCA liabilities which You understood Donovitz would have incurred if BCA was terminated prior to the merger. RESPONSE: Conlon objects to this Interrogatory because it is vague and ambiguous with respect to “terminated.” MARY ELIZABETH CONLON’S OBJECTIONS AND RESPONSES TO DEFENDANT AND COUNTERCLAIM PLAINTIFF DR. GARY S. DONOVITZ’S FIRST SET OF INTERROGATORIES Page 9 23. Describe in detail any due diligence conducted by You in connection with Your decision to not inform the U.S. Securities and Exchange Commission regarding the Weber Probation Letter including, without limitation, by specifying the time period during which such diligence occurred. RESPONSE: Conlon objects to this Interrogatory because it is not reasonably calculated to lead to the discovery of admissible evidence. Conlon further objects to this Interrogatory because it seeks disclosure of attorney-client privileged communications. Dated: June 16, 2023 Respectfully submitted, MCKOOL SMITH, P.C. By: _/s/ Alan S. Loewinsohn________________ Alan S. Loewinsohn State Bar No. 12481600 aloewinsohn@mckoolsmith.com Kerry F. Schonwald State Bar No. 24051301 kschonwald@mckoolsmith.com 300 CRESCENT COURT, SUITE 300 DALLAS, TEXAS 75201 Telephone: (214) 978-4000 Facsimile: (214) 978-4044 ATTORNEYS FOR PLAINTIFF AND COUNTERCLAIM DEFENDANTS MARY ELIZABETH CONLON’S OBJECTIONS AND RESPONSES TO DEFENDANT AND COUNTERCLAIM PLAINTIFF DR. GARY S. DONOVITZ’S FIRST SET OF INTERROGATORIES Page 10 CERTIFICATE OF SERVICE The undersigned hereby certifies that a true and correct copy of the foregoing document was served by electronic mail on June 16, 2023, on the following counsel: wab@BrewerAttorneys.com sbr@BrewerAttorneys.com gap@BrewerAttorneys.com _/s/ Alan S. Loewinsohn______ Alan S. Loewinsohn MARY ELIZABETH CONLON’S OBJECTIONS AND RESPONSES TO DEFENDANT AND COUNTERCLAIM PLAINTIFF DR. GARY S. DONOVITZ’S FIRST SET OF INTERROGATORIES Page 11 EXHIBIT 2 CAUSE NO. DC-22-08737 BIOTE MEDICAL, LLC, § IN THE DISTRICT COURT OF § Plaintiff, § § v. § § DR. GARY S. DONOVITZ AND LANI § HAMMONDS DONOVITZ, individually § and d/b/a LANI D. CONSULTING, § § Defendants; § § DR. GARY S. DONOVITZ, § DALLAS COUNTY, TEXAS § Counterclaim Plaintiff, § § v. § § BIOTE MEDICAL LLC, TERESA S. § WEBER, individually, and MARY § ELIZABETH CONLON, individually, § § Counterclaim Defendants. § § § § 134TH JUDICIAL DISTRICT MARY ELIZABETH CONLON’S OBJECTIONS AND RESPONSES TO DEFENDANT AND COUNTERCLAIM PLAINTIFF GARY DONOVITZ’S FIRST REQUEST FOR PRODUCTION TO: Defendant and Counterclaim Plaintiff Gary Donovitz, by and through his attorney of record, Sarah Rogers, at Brewer, Attorneys & Counselors, 1717 Main Street, Suite 5900, Dallas, Texas 75201. Pursuant to Texas Rule of Civil Procedure 196, Counterclaim Defendant Mary Elizabeth Conlon (“Conlon”) serves her Objections and Responses to Defendant and Counterclaim Plaintiff Gary Donovitz’s (“Gary”) First Request for Production to Mary Elizabeth Conlon (“Request”), without prejudice to subsequently discovered information, as follows: MARY ELIZABETH CONLON’S OBJECTIONS AND RESPONSES TO GARY DONOVITZ’S FIRST REQUEST FOR PRODUCTION Page 1 I. GENERAL OBJECTIONS 1. Conlon fully intends to assert any and all applicable privileges, exemptions and protections from discovery, and Conlon’s disclosure of any information covered by a privilege, protection, or exemption from discovery is inadvertent and not intended to waive any rights. 2. By disclosing any information, Conlon expressly preserves and does not waive any and all objections she may have to the admissibility, authenticity, relevancy or confidentiality of the information or documents. 3. Conlon objects to the Requests, including the definitions and instructions set forth therein, to the extent that they are inconsistent with the Texas Rules of Civil Procedure (“TRCP”), or attempt to impose broader obligations on Conlon than what is required under the TRCP. 4. Conlon makes these responses with the understanding that she does not agree that any of Gary’s definitions are either factually or legally binding on her, including but not limited to the purported definition of “BioTE Executives” or “anyone acting on their behalf” which is overly broad, unduly burdensome and harassing. 5. Conlon incorporates each of the foregoing objections in specific response to the Request and, when appropriate, will state additional, specific objections to the Request. 6. Subject to and without waiving the foregoing, Conlon reserves the right to amend or supplement these responses and her document productions in accordance with TRCP 193.5. MARY ELIZABETH CONLON’S OBJECTIONS AND RESPONSES TO GARY DONOVITZ’S FIRST REQUEST FOR PRODUCTION Page 2 II. RESPONSES AND OBJECTIONS TO THE REQUEST FOR PRODUCTION REQUEST NO. 1: All Documents and Communications relating to Donovitz, the FAA or the SPAC Merger. This Request includes, without limitation, telephone records reflecting Communications with: Cooley, Haymaker, DLA Piper, Truist, any Merger Advisor, and/or any BioTE Executive. This Request covers the period from April 1, 2022 to May 26, 2022. RESPONSE: Conlon objects to this Request as overly broad, unduly burdensome, and not reasonably calculated to lead to the discovery of admissible evidence. Conlon further objects to this Request on the grounds that it calls for speculation. Conlon further objects to this Request because it fails to identify the documents sought with reasonably particularity. With respect to the portion of the request seeking documents and communications relating to the FAA, all non-privileged, responsive documents located after a reasonable and diligent search have already been produced. REQUEST NO. 2: All Communications with Donovitz concerning Donovitz’s actual or expected post-merger role with Biote including, without limitation, communications about the nature, extent, scope, modification, or absence of any (i) board authority; (ii) ex officio board position; (iii) chief medical officer position; (iv) executive decision-making authority; (v) authority over doctor education programs; (vi) authority over international business development or (vii) advisory powers to be exercised by Donovitz post-merger. RESPONSE: Conlon objects to this Request as harassing and unduly burdensome to the extent it is repetitive of questions asked of Ms. Conlon in her deposition. Conlon further objects to this Request because it fails to identify the documents sought with reasonably particularity. Subject to and without MARY ELIZABETH CONLON’S OBJECTIONS AND RESPONSES TO GARY DONOVITZ’S FIRST REQUEST FOR PRODUCTION P