Preview
FILED
DALLAS COUNTY
6/20/2018 5:13 PM
FELICIA PITRE
DISTRICT CLERK
CAUSE NO. DC-18-05560
MARY KAY INC., § IN THE DISTRICT COURT OF
§
Plaintiff, §
§
v. § DALLAS COUNTY, TEXAS
§
xxxxx xxxxx xxxxxxx, §
§
Defendant. § 116th JUDICIAL DISTRICT
PLAINTIFF’S AMENDED APPLICATION FOR COMMISSION TO SERVE
SUBPOENA ON CONSTANT CONTACT, INC.
Plaintiff Mary Kay Inc. (“Plaintiff”) files this Amended Application for Commission to
Serve Subpoena Duces Tecum on Constant Contact, Inc. Plaintiff respectfully asks the Court to
issue an order directing the court clerk to issue a Commission to serve the subpoena on Constant
Contact, Inc., a company of the State of Massachusetts.
I. GROUNDS FOR THE APPLICATION
Pursuant to Rules 176 and 205.1 of the Texas Rules of Civil Procedure, Plaintiff seeks the
subpoena duces tecum of Constant Contact, Inc. for use in the State of Texas in this proceeding.
To properly pursue this action, Plaintiff needs to subpoena relevant documents from Constant
Contact, Inc., which are important to the issues raised and claims asserted in this case.1
Constant Contact, Inc. can be served through its Custodian of Records, Reservoir Place,
1601 Trapelo Road, Suite 329, Waltham, MA 02451, which is outside the jurisdiction of the Texas
courts. Accordingly, the Subpoena is attached as Exhibit A; the proposed Order granting the
1
On June 8, 2018, Plaintiff provided notice to Defendant of its intention to subpoena Constant Contact, Inc.
PLAINTIFF’S AMENDED APPLICATION FOR COMMISSION
TO SERVE SUBPOENA ON CONSTANT CONTACT, INC. PAGE 1
Amended Application for Commission is attached as Exhibit B; and the proposed Commission to
be signed by the court clerk is attached as Exhibit C.
The Subpoena shall require Constant Contact, Inc. to produce documents and tangible
things requested in Schedule A thereto by July 10, 2018, or as otherwise agreed by the parties, to
the offices of Lynn Pinker Cox & Hurst, LLP, 2100 Ross Avenue, Suite 2700, Dallas, Texas 75201.
Plaintiff applies for the Commission to authorize and require the officer(s) to whom the
Commission is addressed to immediately issue and cause to be served on Constant Contact, Inc.,
a subpoena directing Constant Contact, Inc. to produce the documents and other tangible things at
the time and place specified in the attached Notice of Deposition.
II. REQUEST FOR RELIEF
WHEREFORE, Plaintiff requests this Court to enter an Order for Issuance of a
Commission by the Dallas County District Clerk directed to any Notary Public, or any person(s)
authorized in the State of Massachusetts, to have a Subpoena issued which conforms to the attached
Subpoena Duces Tecum on Constant Contact, Inc., and to compel Constant Contact, Inc. to
produce the documents and other tangible items, and for such other and further relief as Plaintiff
may show itself justly entitled.
PLAINTIFF’S AMENDED APPLICATION FOR COMMISSION
TO SERVE SUBPOENA ON CONSTANT CONTACT, INC. PAGE 2
Dated: June 20, 2018 Respectfully submitted,
/s/ Christopher J. Schwegmann
Christopher J. Schwegmann
Texas Bar No. 25051315
cschwegmann@lynnllp.com
Jared D. Eisenberg
State Bar No. 24092382
jeisenberg@lynnllp.com
LYNN PINKER COX & HURST, LLP
2100 Ross Avenue, Suite 2700
Dallas, Texas 75201
Telephone: 214-981-3800
Facsimile: 214-981-3839
Jill Herz
State Bar No. 00785930
service@jillherz.com
ATTORNEY AT LAW
430 Founders Square
900 Jackson Street
Dallas, Texas 75202
(214) 745-4567 – (Telephone)
(214) 745-1156 – (Facsimile)
ATTORNEYS FOR PLAINTIFF
MARY KAY INC.
CERTIFICATE OF SERVICE
I hereby certify that the foregoing document was served upon all counsel of record
via electronic mail June 20, 2018.
/s/ Christopher J. Schwegmann
Christopher J. Schwegmann
PLAINTIFF’S AMENDED APPLICATION FOR COMMISSION
TO SERVE SUBPOENA ON CONSTANT CONTACT, INC. PAGE 3
DISCOVERY-SUBPOENA DUCES TECUM
CAUSE N0. DC-18-05560
MARY KAY, INC., § IN THE DISTRICT COURT 0F
§
.
§
Plaintiff, §
§
v § DALLAS COUNTY, TEXAS
§
§
xxxxx xxxxx xxxxxxx, §
§
Defendant. § 116m JUDICIAL DISTRICT
THE STATE OF TEXAS
TO ANY SHERIFF OR CONSTABLE OF THE STATE 0F TEXAS OR OTHER PERSON AUTHORIZED TO SERVE AND
EXECUTE SUBPOENAS AS PROVIDED IN RULES 176 AND 205 OF THE TEXAS RULES 0F CIVIL PROCEDURE,
GREETINGS:
YOU ARE HEREBY COMMANDED TO SUMMON:
Constant Contact, Inc.
Attn: Custodian of Records, Reservoir Place
1601 Trapelo Road, Suite 329
Waltham, MA 02451 ,
to produce the documents and tangible things requested in Schedule A (“Command to Produce
Documents”) to this Subpoena, at the offices of Lynn Pinker Cox & Hurst, LLP, 2100 Ross
Avenue, Suite 2700, Dallas, Texas 75201, or as otherwise agreed by July 10, 2018, or at such
other time and place as mutually agreed.
'
SUBPOENA Pagel
HEREIN FAIL NOT, but 0f this writ made due return showing how you have executed same.
Rule 176.8(a) states: Contempt. Failure by any person without adequate excuse to obey a
subpoena served upon that person may be deemed a contempt of the court from which the
subpoena isissued or a district court in the county in which the subpoena is served, and may be
punished by fine or confinement, or both.
GIVEN UNDER MY HAND AND SEAL, this the 20th day of June, 2018.
Issued by unsel for the Plaintiff:
Christop
'
.Schwegmann Notary P blic, State ofTexas
Texas Bar No. -4051315
cjs@lynnllp.com
Jared D. Eisenberg
Texas Bar No. 240923 82
'eisenber 1 nnll .com w . .
JLYNN P132111] C0: & HURST, LLP -
'
Chm“ Baker
Smary l‘nhlhw
Slam Tex as
2100 Ross Avenue, Suite 2700 ='
«II
Dallas, Texas 75201
Q1. __
smimm-wzou
Telephone: (214) 981-3800
Facsimile: (214) 981-3839
ATTORNEYS FOR PLAINTIFF MARY KAY INC.
SUBPOENA Page 2
OFFICER’S RETURN
Came to hand the day 0f ,2018, at o’clock _.M., and
executed by delivering a copy 0f this subpoena t0 the within named witness at the following time
and place, to wit:
Delivered: ,2018
at o’clock _.M.
0r not executed as t0 the witness for the following reason:
I actually and necessarily traveled miles inthe service of this Subpoena, in
addition t0 any this mileage I may have traveled in the service ofthis process in this cause during
'
the same trip.
Summoning Witness: $ ,
Mileage: $ County, Texas
By:
(Print Name)
(Print Address)
(Telephone Number)
i
SUBPOENA Page 3
SCHEDULE A
INSTRUCTIONS
1. Each Request for Production requests documents and other materials you are to
furnish (including all duplicates, copies or drafts thereof) that are in your possession, custody or
control, or known or available to you, regardless of whether such documents are possessed
directly by you or by any present or former employee, agent, partner, associate, representative,
attorney, accountant, insurer, contractor, advisor, consultant, investigator, bank, governmental
entity, physician, or any other person acting or purporting to act on your behalf or under your
control.
2. In producing documents and other materials in response tqthese requests, you are
requested to produce a copy of each document, and both sides thereof, allelectronic versions,
and all drafts and non-identical copies (whether different from the original because of notes
made on such copies, because of indications that said copies were sent to different individuals
than were the originals, or because of any other reason). Where an identical copy of a document
cannot be produced for any reason (e.g., different color entries, faint writing, erasures, etc.),
please produce the original.
3. If you claim any form of privilege, whether based on statute or otherwise, as a
basis for withholding production of any document or material, you are required to provide, for
each item withheld, the following information if known or available to you: (a) date composed
and date appearing on the document; (b) the name, the present 0r last known home and business
addresses, the telephone numbers, the title (or position), and the occupation of those individuals
who prepared, produced, reproduced, and who were the intended recipients of said document; (c)
number of pages; (d) number of copies made; (e) identity of all persons who saw the original
document, saw or received a copy of such document, including thejob titles of each such person;
and (f) a description of the dodument sufficient to identify it without revealing the information
for which the privilege is claimed, including the general subject matter and character of the
document (e.g., letter, memorandum, notes).
4. Ifyou object to any of the following requests, state the reasons for such objection
and answer to the extent the request is not objectionable. All grounds for any objection shall be
stated with specificity, and any ground not stated in a timely objection shall be deemed waived
unless good cause for omission can be shown.
5. Notwithstanding any objection, you are to produce all responsive documents
and/or other materials which contain non—objectionable information responsive to any one or
more of these requests. That portion of the document for which the objection is asserted may be
redacted, provided that the identification called for in Instruction No. 3 (above) isfurnished.
6. Each document or other material requested herein is to be produced in its entirety,
without deletion 01' excision (except as qualified by Instruction No. 5 above), including
attachments and enclosures, regardless of whether you consider the entire document to be
relevant or responsive to any one or more of these requests. Documents attached to each other
SUBPOENA '
Page 4
must not be separated, regardless of whether you consider all of the attached documents or pages
thereof to be relevant or responsive to any one or more of these requests.
7. If any responsive documents or other materials cannot be produced in full, then
produce them to the maximum extent possible, specifying the reasons for your inability to.
produce the remainder and stating what information, knowledge or belief you have concerning
the portion not produced.
8. If a responsive document or other item once existed, but has been lost or
destroyed, or isotherwise no longer in your possession, custody or control, you are to identify
the docilment or other item and state the details concerning the loss of same, including without
limitation, date of loss or destruction, and the name, title and address of the present and former
custodian of any such document or other item, ifknown to you.
9. These requests require the production of documents as they are kept in the usual
course of business or organized and labeled to correspond with the specific requests set forth
below. If you choose the former method, the documents are to be produced in the boxes, file
folders, bindings, or other containers in which the documents are found. The titles, labels or
other descriptions on the boxes, file folders, bindings, or other containers are to be left intact.
10. Each Request for Production and subparts thereof should be answered separately
and identified so that the response clearly corresponds to the request or Subpart thereof to which
the response is being offered.
11. Each Request for Production shall be construed as follows: (a) the singular
includes the plural and the plural includes the singular; (b) the masculine, feminine or neuter
pronoun includes the other genders; (c) the cdnjunctions “and” and “or” shall be read either
disjunctively or conjunctively to bring within the scope of the request all documents or
information that might otherwise be construed to be outside its scope; (d) the words “any” and
“all” shall include each and every; and (e) the present tense of a verb includes its past tense and
Vlce versa.
12. Mary Kay hereby requests production of all electronic or magnetic data
containing information responsive to these requests. Such information should be copied to a
computer disc in the same format or program as itcurrently exists and made available in that
format unless otherwise agreed.
13. Each Request for Production shall be construed independently and not by
reference to an_y other Request for Production herein for the purposes of limitation.
14. Each Request for Production shall be grouped, categorized, indexed, or otherwise
classified according to the document request to which the document is responsive. A written
response to this request is required.
A
15. You are further instructed that you are under a duty to reasonably supplement
your responses to these requests in accordance with the provisions of the TEXAS RULES OF
CIVIL PROCEDURE.
SUBPOENA _
Page 5
DEFINITION S
16. The terms “You,” or any variant thereof, means Constant Contact, its agents,
assigns, legal representatives, non-legal representatives, personal representatives, attorneys,
employees, and also includes individuals and entities who act, have acted, purport to act, or have
purported to act on behalf ofNordstrom, Inc.
17. The term “Mary Kay” means Mary Kay Inc., and includes itspast and present,
agents, predecessors, successors, assigns, legal representatives, non-legal representatives,
personal representatives, attorneys, and also includes individuals and entities who act, have
acted, purport to act, or have purported to act on behalf of Mary Kay.
18. The term “xxxxxxx” means Defendant xxxxx xxxxx xxxxxxx and includes her
agents, employees, representatives, attorneys, and insurers, and also includes individuals and
entities who act, have acted, purport to act, or have purported to act on her behalf.
19. As used herein, the terms “document” and “documents” are intended to be
construed to the broadest extent possible and include documents and tangible things and original
and non-identical copies, whether by reason of marginal or other notes or alterations, and
includes, without limitation, the following items, whether printed, recorded, stored or reproduced
by hand: agreements, contracts, communications, letters, writings, electronic mail (or email)
messages, correspondence, memoranda (including internal memoranda or any memoranda or
reports of a meeting or conversations), telegrams, telexes, facsimile transmissions, notes, notices,
reports, studies, books, publications, records, summaries, or records of telephone conversations
or interviews, telephone bills or logs, message slips, appointment books, calendars, tabulations,
agendas, diaries, graphs, reports, notebooks, note charts, studies, plans, artist renderings,
drawings, sketches, maps, tape recordings, summaries or reports of investigations or
negotiations, opinions or reports of consultants, photographs, motion picture films, computer
tapes, disks, cards, and any other electronic or magnetic means of data storage, brochures,
pamphlets, advertisements, circulars, press releases, drafts or any other writings of any character
or description. THE TERM “DOCUMENT” EXPRESSLY INCLUDES ALL DIGITAL FILES,
DATABASES, EMAILS, AND OTHER DOCUMENTS MAINTAINED IN DIGITAL FORM.
20. As used herein, the terms “and” and “or” shall be construed both disjunctively and
conjunctively as necessary to make the request inclusive rather than exclusive.
21. As used herein, the term “communication” means any conversation, statement,
discussion, correspondence, message, expression, memorandum, note, sign, or other form of
transmitting an idea, thought, word or message, whether written or oral, whether or not actually
transmitted or conveyed, including but not limited to, notes, tapes; electronic media, email, etc.
A request for “communication” is included within request for a “document.”
22. The term “including,” or one of its inflections, means and refers to “including, but
not limited to.”
23. As used herein, “meeting” means any assembly, convocation, encounter, or the
contemporaneous presence of two or more persons for any purpose, whether or not planned,
arranged, or scheduled 1n advance.
SUBPOENA Page 6
24. As used herein, “person” and “persons” include human beings, corporations,
partnerships, associations, joint ventures, government agencies (federal, state, and local), and any
other organization cognizable at law.
25. As used herein, the words “relating to” or “r'elate to” mean, without limitation,
documents analyzing, evidencing, summarizing, discussing, reflecting, showing, referring to,
containing, supporting, previously attached or appended to, used in the preparation of any
document described in or by any request, or in any other way relating to the documents or dIass
of documents, events, acts or occurrences described in this request.
26. The term “all” includes and encompasses “any.” The term “any” includes and
encompasses “all.”
27. The word “identify,” when used herein as a reference to a document, means to state
(1) its date, (2) itsauthor, (3) the type of document, e.g., memorandum,
letter,_ receipt, invoice,
schedule, report, telegram, chart, photograph, sound production, etc., and (4) itspresent location and
the name of its present custodian.
28. “Identify” and “identity,” when used with respect to a natural person, means to
state:
the person’s full name;
999‘."
the person’s present or last known home and business addresses;
the person’s occupation or business; and
the person’s present or last known employer and position. _
29.‘ Ifany of the above information isnot available, state any other available means of
identifying such person.
30. “Identify” and “identity,” When used with respect to an entity other than a natural
person, means to state:
he full name of the organization or entity;
the place and date of incorporation of the organization or entity;
9-9.0”?
the principal place of business ofthe organization or entity; and
the identity of persons representing or employed by the organization or entity
having knowledge ofthe matters related to this Lawsuit.
DJ
1. “Identify” and “identity,” when used with respect to a document, means to state:
itsdate;
itsauthor(s) and signatory(ies);
itsaddressee(s);
or heading;
its title
FWWPF-PP‘P
the type of document;
itscustodian;
itspresent or last known location; and
a description of its subject matter and contents.
SUBPOENA Page 7
32. If any such document was, but is no longer in your possession" or subject to your
control, or in existence, in addition to the above, statewhether it is (1) missing or lost, (2)
destroyed, or (3) transmitted or transferred, voluntarily or involuntarily, to others, and in each
instance, explain the circumstances surrounding any authorization for disposition and state the
date of the approximate date thereof. If any of the above information is not available, state any
other available means of identifying such document.
33. Any reference to an individual person, either singularly or as part of a defined
group, that includes that person’s past and present agents, legal representatives, non-legal
representatives, personal representatives, attorneys, employees, heirs, successors, and assigns,.
and also includes individuals and entities who act, have acted, purport to act, or have purported
to act on behalf of such individual person.
34. Any reference to a non-natural person includes that person’s past and present
directors, officers, agents, predecessors, successors, assigns, legal representatives, non-Iegal
representatives, personal representatives, attorneys, general partners, limited partners,
employees, subsidiaries and parent companies, sister companies, affiliated entities, and also
includes individuals and entities who act, have acted, purport to act, or have purported to act on
behalf of such non-natural person.
35. The singular includes the plural and vice versa.
36. The masculine gender includes the feminine and vice versa.
37. All other terms are to be interpreted in accordance with their normal usage in the
English language.
38. These discovery requests are limited to information not protected by the work
‘
product privilege.
RELEVANT TIME PERIOD
This subpoena seeks Documents and Communications concerning the time period from
January 1, 2017, through and including the date of Your final supplemental production in
response hereto, unless otherwise indicated below.
SUBPOENA Page 8
DOCUMENTS FOR PRODUCTION
1. Documents sufficient to identify the recipients of the document attached hereto as
Exhibit A.
2. Documents sufficient to identify the recipients of the document attached hereto as
Exhibit B.
3. Documents sufficient to identify every person on any mailing list maintained by
user name JCV Global and/or xxxxx xxxxxxx.
4. Documents sufficient to show the identity of every person who unsubscribed from
any mailing list maintained by JCV Global and/or xxxxx xxxxxxx and the date on which that
person unsubscribed.
5. Documents sufficient to show the date, recipients, and content of any
communication from JCV Global and/or xxxxx xxxxxxx during the relevant time period.
6. Documents sufficient t0 show the date, recipients, and content of any
communication from the following email addresses: Chrissylighe@tk0cpa.com;
ienrchavez+yahoo.com@ccsend.com' ienrchavez®vahoo.com.
7. Al] documents and communications between Constant Contact and xxxxx xxxxx
xxxxxxx, Jenny Chavez, Chrissy Tighe, and/or Natalie Beckley regarding mailing lists, email
addresses, 0r any other information concerning, referring, or relating tojamievrinios.com.
8. All documents and communications between Constant Contact and xxxxx xxxxx
xxxxxxx, Jenny Chavez, Chrissy Tighe, and/or Natalie Beckley regarding mailing lists, email
addresses, or any other information concerning, referring, or relating to the “Health is Wealth
Podcast series.”
9. A11 documents and communications between Constant Contact and xxxxx xxxxx
SUBPOENA Page 9
xxxxxxx, Jenny Chavez, Chrissy Tighe, and/or Natalie Beckley regarding mailing lists,email
addresses, or any other information concerning, referring, or relating to “The Make Up of
Warrior.”
10. All documents and communications between Constant Contact and xxxxx xxxxx
xxxxxxx, Jenny Chavez, Chrissy Tighe, and/or Natalie Beckley regarding mailing lists, email
addresses, or any other informatiofi concerning, referring, or relating to Dr. Monhollon, M.D.
and/or the Florida Integrated Medical Center.
11. A11 documents and communications between Constant Contact and xxxxx xxxxx
xxxxxxx, Jenny Chavez, Chrissy Tighe, afid/or Natalie Beckley regarding mailing lists, email
addresses, or any other information concerning, referring, or relating to ASEA.
12. All documents and communications between Constant Contact and xxxxx xxxxx
xxxxxxx, Jenny Chavez, Chrissy Tighe, and/or Natalie Beckley regarding mailing lists, email
addresses, or any other information concerning, referring, or relating to Monat.
.and
13. A11 documents communications between Constant Contact and xxxxx xxxxx
xxxxxxx, Jenny Chavez, Chrissy Tighe, and/or Natalie Beckley concerning, referring, or relating
to Mary Kay Inc.
SUBPOENA Page 10
----------
---------- Forwarded message ----------
----------
From: JCV Global
(chrissy.tighc@tkocga.com>
Date:
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Preview
FILED DALLAS COUNTY 6/20/2018 5:13 PM FELICIA PITRE DISTRICT CLERK CAUSE NO. DC-18-05560 MARY KAY INC., § IN THE DISTRICT COURT OF § Plaintiff, § § v. § DALLAS COUNTY, TEXAS § xxxxx xxxxx xxxxxxx, § § Defendant. § 116th JUDICIAL DISTRICT PLAINTIFF’S AMENDED APPLICATION FOR COMMISSION TO SERVE SUBPOENA ON CONSTANT CONTACT, INC. Plaintiff Mary Kay Inc. (“Plaintiff”) files this Amended Application for Commission to Serve Subpoena Duces Tecum on Constant Contact, Inc. Plaintiff respectfully asks the Court to issue an order directing the court clerk to issue a Commission to serve the subpoena on Constant Contact, Inc., a company of the State of Massachusetts. I. GROUNDS FOR THE APPLICATION Pursuant to Rules 176 and 205.1 of the Texas Rules of Civil Procedure, Plaintiff seeks the subpoena duces tecum of Constant Contact, Inc. for use in the State of Texas in this proceeding. To properly pursue this action, Plaintiff needs to subpoena relevant documents from Constant Contact, Inc., which are important to the issues raised and claims asserted in this case.1 Constant Contact, Inc. can be served through its Custodian of Records, Reservoir Place, 1601 Trapelo Road, Suite 329, Waltham, MA 02451, which is outside the jurisdiction of the Texas courts. Accordingly, the Subpoena is attached as Exhibit A; the proposed Order granting the 1 On June 8, 2018, Plaintiff provided notice to Defendant of its intention to subpoena Constant Contact, Inc. PLAINTIFF’S AMENDED APPLICATION FOR COMMISSION TO SERVE SUBPOENA ON CONSTANT CONTACT, INC. PAGE 1 Amended Application for Commission is attached as Exhibit B; and the proposed Commission to be signed by the court clerk is attached as Exhibit C. The Subpoena shall require Constant Contact, Inc. to produce documents and tangible things requested in Schedule A thereto by July 10, 2018, or as otherwise agreed by the parties, to the offices of Lynn Pinker Cox & Hurst, LLP, 2100 Ross Avenue, Suite 2700, Dallas, Texas 75201. Plaintiff applies for the Commission to authorize and require the officer(s) to whom the Commission is addressed to immediately issue and cause to be served on Constant Contact, Inc., a subpoena directing Constant Contact, Inc. to produce the documents and other tangible things at the time and place specified in the attached Notice of Deposition. II. REQUEST FOR RELIEF WHEREFORE, Plaintiff requests this Court to enter an Order for Issuance of a Commission by the Dallas County District Clerk directed to any Notary Public, or any person(s) authorized in the State of Massachusetts, to have a Subpoena issued which conforms to the attached Subpoena Duces Tecum on Constant Contact, Inc., and to compel Constant Contact, Inc. to produce the documents and other tangible items, and for such other and further relief as Plaintiff may show itself justly entitled. PLAINTIFF’S AMENDED APPLICATION FOR COMMISSION TO SERVE SUBPOENA ON CONSTANT CONTACT, INC. PAGE 2 Dated: June 20, 2018 Respectfully submitted, /s/ Christopher J. Schwegmann Christopher J. Schwegmann Texas Bar No. 25051315 cschwegmann@lynnllp.com Jared D. Eisenberg State Bar No. 24092382 jeisenberg@lynnllp.com LYNN PINKER COX & HURST, LLP 2100 Ross Avenue, Suite 2700 Dallas, Texas 75201 Telephone: 214-981-3800 Facsimile: 214-981-3839 Jill Herz State Bar No. 00785930 service@jillherz.com ATTORNEY AT LAW 430 Founders Square 900 Jackson Street Dallas, Texas 75202 (214) 745-4567 – (Telephone) (214) 745-1156 – (Facsimile) ATTORNEYS FOR PLAINTIFF MARY KAY INC. CERTIFICATE OF SERVICE I hereby certify that the foregoing document was served upon all counsel of record via electronic mail June 20, 2018. /s/ Christopher J. Schwegmann Christopher J. Schwegmann PLAINTIFF’S AMENDED APPLICATION FOR COMMISSION TO SERVE SUBPOENA ON CONSTANT CONTACT, INC. PAGE 3 DISCOVERY-SUBPOENA DUCES TECUM CAUSE N0. DC-18-05560 MARY KAY, INC., § IN THE DISTRICT COURT 0F § . § Plaintiff, § § v § DALLAS COUNTY, TEXAS § § xxxxx xxxxx xxxxxxx, § § Defendant. § 116m JUDICIAL DISTRICT THE STATE OF TEXAS TO ANY SHERIFF OR CONSTABLE OF THE STATE 0F TEXAS OR OTHER PERSON AUTHORIZED TO SERVE AND EXECUTE SUBPOENAS AS PROVIDED IN RULES 176 AND 205 OF THE TEXAS RULES 0F CIVIL PROCEDURE, GREETINGS: YOU ARE HEREBY COMMANDED TO SUMMON: Constant Contact, Inc. Attn: Custodian of Records, Reservoir Place 1601 Trapelo Road, Suite 329 Waltham, MA 02451 , to produce the documents and tangible things requested in Schedule A (“Command to Produce Documents”) to this Subpoena, at the offices of Lynn Pinker Cox & Hurst, LLP, 2100 Ross Avenue, Suite 2700, Dallas, Texas 75201, or as otherwise agreed by July 10, 2018, or at such other time and place as mutually agreed. ' SUBPOENA Pagel HEREIN FAIL NOT, but 0f this writ made due return showing how you have executed same. Rule 176.8(a) states: Contempt. Failure by any person without adequate excuse to obey a subpoena served upon that person may be deemed a contempt of the court from which the subpoena isissued or a district court in the county in which the subpoena is served, and may be punished by fine or confinement, or both. GIVEN UNDER MY HAND AND SEAL, this the 20th day of June, 2018. Issued by unsel for the Plaintiff: Christop ' .Schwegmann Notary P blic, State ofTexas Texas Bar No. -4051315 cjs@lynnllp.com Jared D. Eisenberg Texas Bar No. 240923 82 'eisenber 1 nnll .com w . . JLYNN P132111] C0: & HURST, LLP - ' Chm“ Baker Smary l‘nhlhw Slam Tex as 2100 Ross Avenue, Suite 2700 =' «II Dallas, Texas 75201 Q1. __ smimm-wzou Telephone: (214) 981-3800 Facsimile: (214) 981-3839 ATTORNEYS FOR PLAINTIFF MARY KAY INC. SUBPOENA Page 2 OFFICER’S RETURN Came to hand the day 0f ,2018, at o’clock _.M., and executed by delivering a copy 0f this subpoena t0 the within named witness at the following time and place, to wit: Delivered: ,2018 at o’clock _.M. 0r not executed as t0 the witness for the following reason: I actually and necessarily traveled miles inthe service of this Subpoena, in addition t0 any this mileage I may have traveled in the service ofthis process in this cause during ' the same trip. Summoning Witness: $ , Mileage: $ County, Texas By: (Print Name) (Print Address) (Telephone Number) i SUBPOENA Page 3 SCHEDULE A INSTRUCTIONS 1. Each Request for Production requests documents and other materials you are to furnish (including all duplicates, copies or drafts thereof) that are in your possession, custody or control, or known or available to you, regardless of whether such documents are possessed directly by you or by any present or former employee, agent, partner, associate, representative, attorney, accountant, insurer, contractor, advisor, consultant, investigator, bank, governmental entity, physician, or any other person acting or purporting to act on your behalf or under your control. 2. In producing documents and other materials in response tqthese requests, you are requested to produce a copy of each document, and both sides thereof, allelectronic versions, and all drafts and non-identical copies (whether different from the original because of notes made on such copies, because of indications that said copies were sent to different individuals than were the originals, or because of any other reason). Where an identical copy of a document cannot be produced for any reason (e.g., different color entries, faint writing, erasures, etc.), please produce the original. 3. If you claim any form of privilege, whether based on statute or otherwise, as a basis for withholding production of any document or material, you are required to provide, for each item withheld, the following information if known or available to you: (a) date composed and date appearing on the document; (b) the name, the present 0r last known home and business addresses, the telephone numbers, the title (or position), and the occupation of those individuals who prepared, produced, reproduced, and who were the intended recipients of said document; (c) number of pages; (d) number of copies made; (e) identity of all persons who saw the original document, saw or received a copy of such document, including thejob titles of each such person; and (f) a description of the dodument sufficient to identify it without revealing the information for which the privilege is claimed, including the general subject matter and character of the document (e.g., letter, memorandum, notes). 4. Ifyou object to any of the following requests, state the reasons for such objection and answer to the extent the request is not objectionable. All grounds for any objection shall be stated with specificity, and any ground not stated in a timely objection shall be deemed waived unless good cause for omission can be shown. 5. Notwithstanding any objection, you are to produce all responsive documents and/or other materials which contain non—objectionable information responsive to any one or more of these requests. That portion of the document for which the objection is asserted may be redacted, provided that the identification called for in Instruction No. 3 (above) isfurnished. 6. Each document or other material requested herein is to be produced in its entirety, without deletion 01' excision (except as qualified by Instruction No. 5 above), including attachments and enclosures, regardless of whether you consider the entire document to be relevant or responsive to any one or more of these requests. Documents attached to each other SUBPOENA ' Page 4 must not be separated, regardless of whether you consider all of the attached documents or pages thereof to be relevant or responsive to any one or more of these requests. 7. If any responsive documents or other materials cannot be produced in full, then produce them to the maximum extent possible, specifying the reasons for your inability to. produce the remainder and stating what information, knowledge or belief you have concerning the portion not produced. 8. If a responsive document or other item once existed, but has been lost or destroyed, or isotherwise no longer in your possession, custody or control, you are to identify the docilment or other item and state the details concerning the loss of same, including without limitation, date of loss or destruction, and the name, title and address of the present and former custodian of any such document or other item, ifknown to you. 9. These requests require the production of documents as they are kept in the usual course of business or organized and labeled to correspond with the specific requests set forth below. If you choose the former method, the documents are to be produced in the boxes, file folders, bindings, or other containers in which the documents are found. The titles, labels or other descriptions on the boxes, file folders, bindings, or other containers are to be left intact. 10. Each Request for Production and subparts thereof should be answered separately and identified so that the response clearly corresponds to the request or Subpart thereof to which the response is being offered. 11. Each Request for Production shall be construed as follows: (a) the singular includes the plural and the plural includes the singular; (b) the masculine, feminine or neuter pronoun includes the other genders; (c) the cdnjunctions “and” and “or” shall be read either disjunctively or conjunctively to bring within the scope of the request all documents or information that might otherwise be construed to be outside its scope; (d) the words “any” and “all” shall include each and every; and (e) the present tense of a verb includes its past tense and Vlce versa. 12. Mary Kay hereby requests production of all electronic or magnetic data containing information responsive to these requests. Such information should be copied to a computer disc in the same format or program as itcurrently exists and made available in that format unless otherwise agreed. 13. Each Request for Production shall be construed independently and not by reference to an_y other Request for Production herein for the purposes of limitation. 14. Each Request for Production shall be grouped, categorized, indexed, or otherwise classified according to the document request to which the document is responsive. A written response to this request is required. A 15. You are further instructed that you are under a duty to reasonably supplement your responses to these requests in accordance with the provisions of the TEXAS RULES OF CIVIL PROCEDURE. SUBPOENA _ Page 5 DEFINITION S 16. The terms “You,” or any variant thereof, means Constant Contact, its agents, assigns, legal representatives, non-legal representatives, personal representatives, attorneys, employees, and also includes individuals and entities who act, have acted, purport to act, or have purported to act on behalf ofNordstrom, Inc. 17. The term “Mary Kay” means Mary Kay Inc., and includes itspast and present, agents, predecessors, successors, assigns, legal representatives, non-legal representatives, personal representatives, attorneys, and also includes individuals and entities who act, have acted, purport to act, or have purported to act on behalf of Mary Kay. 18. The term “xxxxxxx” means Defendant xxxxx xxxxx xxxxxxx and includes her agents, employees, representatives, attorneys, and insurers, and also includes individuals and entities who act, have acted, purport to act, or have purported to act on her behalf. 19. As used herein, the terms “document” and “documents” are intended to be construed to the broadest extent possible and include documents and tangible things and original and non-identical copies, whether by reason of marginal or other notes or alterations, and includes, without limitation, the following items, whether printed, recorded, stored or reproduced by hand: agreements, contracts, communications, letters, writings, electronic mail (or email) messages, correspondence, memoranda (including internal memoranda or any memoranda or reports of a meeting or conversations), telegrams, telexes, facsimile transmissions, notes, notices, reports, studies, books, publications, records, summaries, or records of telephone conversations or interviews, telephone bills or logs, message slips, appointment books, calendars, tabulations, agendas, diaries, graphs, reports, notebooks, note charts, studies, plans, artist renderings, drawings, sketches, maps, tape recordings, summaries or reports of investigations or negotiations, opinions or reports of consultants, photographs, motion picture films, computer tapes, disks, cards, and any other electronic or magnetic means of data storage, brochures, pamphlets, advertisements, circulars, press releases, drafts or any other writings of any character or description. THE TERM “DOCUMENT” EXPRESSLY INCLUDES ALL DIGITAL FILES, DATABASES, EMAILS, AND OTHER DOCUMENTS MAINTAINED IN DIGITAL FORM. 20. As used herein, the terms “and” and “or” shall be construed both disjunctively and conjunctively as necessary to make the request inclusive rather than exclusive. 21. As used herein, the term “communication” means any conversation, statement, discussion, correspondence, message, expression, memorandum, note, sign, or other form of transmitting an idea, thought, word or message, whether written or oral, whether or not actually transmitted or conveyed, including but not limited to, notes, tapes; electronic media, email, etc. A request for “communication” is included within request for a “document.” 22. The term “including,” or one of its inflections, means and refers to “including, but not limited to.” 23. As used herein, “meeting” means any assembly, convocation, encounter, or the contemporaneous presence of two or more persons for any purpose, whether or not planned, arranged, or scheduled 1n advance. SUBPOENA Page 6 24. As used herein, “person” and “persons” include human beings, corporations, partnerships, associations, joint ventures, government agencies (federal, state, and local), and any other organization cognizable at law. 25. As used herein, the words “relating to” or “r'elate to” mean, without limitation, documents analyzing, evidencing, summarizing, discussing, reflecting, showing, referring to, containing, supporting, previously attached or appended to, used in the preparation of any document described in or by any request, or in any other way relating to the documents or dIass of documents, events, acts or occurrences described in this request. 26. The term “all” includes and encompasses “any.” The term “any” includes and encompasses “all.” 27. The word “identify,” when used herein as a reference to a document, means to state (1) its date, (2) itsauthor, (3) the type of document, e.g., memorandum, letter,_ receipt, invoice, schedule, report, telegram, chart, photograph, sound production, etc., and (4) itspresent location and the name of its present custodian. 28. “Identify” and “identity,” when used with respect to a natural person, means to state: the person’s full name; 999‘." the person’s present or last known home and business addresses; the person’s occupation or business; and the person’s present or last known employer and position. _ 29.‘ Ifany of the above information isnot available, state any other available means of identifying such person. 30. “Identify” and “identity,” When used with respect to an entity other than a natural person, means to state: he full name of the organization or entity; the place and date of incorporation of the organization or entity; 9-9.0”? the principal place of business ofthe organization or entity; and the identity of persons representing or employed by the organization or entity having knowledge ofthe matters related to this Lawsuit. DJ 1. “Identify” and “identity,” when used with respect to a document, means to state: itsdate; itsauthor(s) and signatory(ies); itsaddressee(s); or heading; its title FWWPF-PP‘P the type of document; itscustodian; itspresent or last known location; and a description of its subject matter and contents. SUBPOENA Page 7 32. If any such document was, but is no longer in your possession" or subject to your control, or in existence, in addition to the above, statewhether it is (1) missing or lost, (2) destroyed, or (3) transmitted or transferred, voluntarily or involuntarily, to others, and in each instance, explain the circumstances surrounding any authorization for disposition and state the date of the approximate date thereof. If any of the above information is not available, state any other available means of identifying such document. 33. Any reference to an individual person, either singularly or as part of a defined group, that includes that person’s past and present agents, legal representatives, non-legal representatives, personal representatives, attorneys, employees, heirs, successors, and assigns,. and also includes individuals and entities who act, have acted, purport to act, or have purported to act on behalf of such individual person. 34. Any reference to a non-natural person includes that person’s past and present directors, officers, agents, predecessors, successors, assigns, legal representatives, non-Iegal representatives, personal representatives, attorneys, general partners, limited partners, employees, subsidiaries and parent companies, sister companies, affiliated entities, and also includes individuals and entities who act, have acted, purport to act, or have purported to act on behalf of such non-natural person. 35. The singular includes the plural and vice versa. 36. The masculine gender includes the feminine and vice versa. 37. All other terms are to be interpreted in accordance with their normal usage in the English language. 38. These discovery requests are limited to information not protected by the work ‘ product privilege. RELEVANT TIME PERIOD This subpoena seeks Documents and Communications concerning the time period from January 1, 2017, through and including the date of Your final supplemental production in response hereto, unless otherwise indicated below. SUBPOENA Page 8 DOCUMENTS FOR PRODUCTION 1. Documents sufficient to identify the recipients of the document attached hereto as Exhibit A. 2. Documents sufficient to identify the recipients of the document attached hereto as Exhibit B. 3. Documents sufficient to identify every person on any mailing list maintained by user name JCV Global and/or xxxxx xxxxxxx. 4. Documents sufficient to show the identity of every person who unsubscribed from any mailing list maintained by JCV Global and/or xxxxx xxxxxxx and the date on which that person unsubscribed. 5. Documents sufficient to show the date, recipients, and content of any communication from JCV Global and/or xxxxx xxxxxxx during the relevant time period. 6. Documents sufficient t0 show the date, recipients, and content of any communication from the following email addresses: Chrissylighe@tk0cpa.com; ienrchavez+yahoo.com@ccsend.com' ienrchavez®vahoo.com. 7. Al] documents and communications between Constant Contact and xxxxx xxxxx xxxxxxx, Jenny Chavez, Chrissy Tighe, and/or Natalie Beckley regarding mailing lists, email addresses, 0r any other information concerning, referring, or relating tojamievrinios.com. 8. All documents and communications between Constant Contact and xxxxx xxxxx xxxxxxx, Jenny Chavez, Chrissy Tighe, and/or Natalie Beckley regarding mailing lists, email addresses, or any other information concerning, referring, or relating to the “Health is Wealth Podcast series.” 9. A11 documents and communications between Constant Contact and xxxxx xxxxx SUBPOENA Page 9 xxxxxxx, Jenny Chavez, Chrissy Tighe, and/or Natalie Beckley regarding mailing lists,email addresses, or any other information concerning, referring, or relating to “The Make Up of Warrior.” 10. All documents and communications between Constant Contact and xxxxx xxxxx xxxxxxx, Jenny Chavez, Chrissy Tighe, and/or Natalie Beckley regarding mailing lists, email addresses, or any other informatiofi concerning, referring, or relating to Dr. Monhollon, M.D. and/or the Florida Integrated Medical Center. 11. A11 documents and communications between Constant Contact and xxxxx xxxxx xxxxxxx, Jenny Chavez, Chrissy Tighe, afid/or Natalie Beckley regarding mailing lists, email addresses, or any other information concerning, referring, or relating to ASEA. 12. All documents and communications between Constant Contact and xxxxx xxxxx xxxxxxx, Jenny Chavez, Chrissy Tighe, and/or Natalie Beckley regarding mailing lists, email addresses, or any other information concerning, referring, or relating to Monat. .and 13. A11 documents communications between Constant Contact and xxxxx xxxxx xxxxxxx, Jenny Chavez, Chrissy Tighe, and/or Natalie Beckley concerning, referring, or relating to Mary Kay Inc. SUBPOENA Page 10 ---------- ---------- Forwarded message ---------- ---------- From: JCV Global (chrissy.tighc@tkocga.com> Date: Dale: Mon, Mon. Apr 16,16. 2018 aatl 7 :0 I AM 7:01 Subject: The latest Subject: The [mast news for for you you To: T0: Interview Interview with Dr. Dr. Monhollon Our third third Health HeaHh & & Wellness podcast will will be April April 23rd 23rd at at 12 PM EST, EST. You won 't want to won't to miss this continuing miss this continuing series series on increasing increasing your your health health awareness. awareness. Our second Health Health &a Wellness Wellness podcast podcast discussed discussed chronic chronic illnesses illnesses like: iike: fibromyalgia , auto-immune disorders, fibromyalgia. disorders, multiple sclerosis, multiple sclerosis, arthritis, arthritis,and so50 much more. more. John Monhollon, Monhollon, M.D. MD‘ of the of the Florida Florida Integrated Integrated Medical Medical Center Center inin Sarasota Sarasota shared shated with with us us how living a healthier Iiv‘mg healthier lifestyle lifestyle and making smart smart choices choices can directly directly impact impact these these diseases. diseases. This podcast This podcasi has has been posted posted to to xxxxx's website website www.jam ievrinios.com. www.larnievrinioscom. We hope you you enjoyed enjoyed it! it! As we look look forward forward to our nex1 to our next Health Health & Wellness Wellness podcast discussing Living podcast discussing Living an Optimal Optimal Lifestyle, Liiesty%e, we invite invite you you to to re-listen re—listen to our first two to ourfirsi two life life saving saving podcast and and share share it with