Preview
FILED
DALLAS COUNTY
8/27/2018 11:20 AM
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 APPLICATION FOR COMMISSION TO SERVE FLORIDA
INTEGRATED MEDICAL CENTER
Plaintiff Mary Kay Inc. (“Plaintiff”) files its Application for Commission to Serve Subpoena
on Florida Integrated Medical Center, a Florida company, as follows:
I. GROUNDS FOR THE APPLICATION
Pursuant to Rules 176 and 205.1 of the Texas Rules of Civil Procedure, Plaintiff seeks a
subpoena duces tecum of Florida Integrated Medical Center (“FIMC”), for use in the State of Texas in
this proceeding. To properly pursue this action, Plaintiff needs to subpoena relevant documents,
which are important to the issues raised and claims asserted in this case. 1
FIMC can be served through its counsel, Bruce Rosenberg, 2385 NW Executive Center Drive,
Suite 100, Boca Raton, Florida 33431, which is outside the jurisdiction of the Texas courts.
Accordingly, the Subpoena is attached as Exhibit A; the proposed Order granting the Application for
Commission is attached as Exhibit B; and the proposed Commission to be signed by the court clerk
is attached as Exhibit C.
1
On July 3, 2018, Plaintiff provided notice to Defendant of its intention to subpoena FIMC.
PLAINTIFF’S APPLICATION FOR COMMISSION TO SERVE
SUBPOENA ON FLORIDA INTEGRATED MEDICAL CENTER PAGE 1
Page 1 of 16
The Subpoena shall require FIMC to produce documents and tangible things requested in
Schedule A thereto by September 21, 2018, or as otherwise agreed by the parties, to the offices of
Banker Lopez Gassler, P.A., 4315 Metro Pkwy #550, Fort Myers, Florida 33916.
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 FIMC, a subpoena directing
FIMC to produce the documents and other tangible things at the time and place specified in the
attached Subpoena (Ex. A.).
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 Florida, to have a Subpoena issued which conforms to the attached Subpoena on FIMC, and
to compel FIMC to produce the documents and other tangible items, and for such other and further
relief as Plaintiff may show itself justly entitled.
PLAINTIFF’S APPLICATION FOR COMMISSION TO SERVE
SUBPOENA ON FLORIDA INTEGRATED MEDICAL CENTER PAGE 2
Page 2 of 16
Dated: August 27, 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
jherz@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 ECF
August 27, 2018.
/s/ Christopher J. Schwegmann
Christopher J. Schwegmann
PLAINTIFF’S APPLICATION FOR COMMISSION TO SERVE
SUBPOENA ON FLORIDA INTEGRATED MEDICAL CENTER PAGE 3
Page 3 of 16
EXHIBIT A
DISCOVERY SUBPOENA DUCES TECUM
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
THE STATE OF TEXAS
TO ANY SHERIFF OR CONSTABLE OF THE STATE OF TEXAS OR OTHER PERSON
AUTHORIZED TO SERVE AND EXECUTE SUBPOENAS AS PROVIDED IN RULES 176
AND 205 OF THE TEXAS RULES OF CIVIL PROCEDURE, GREETINGS:
YOU ARE HEREBY COMMANDED TO SUMMON:
Florida Integrated Medical Center
Attn: Bruce Rosenberg
Rosenberg Law, P.A.
2385 NW Executive Center Drive, Suite 100
Boca Raton, Florida, 33431
to produce the documents and tangible things requested in Schedule A (“Command to Produce
Documents”) to this Subpoena, at the offices of Banker Lopez Gassler, P.A., Attn: Jesse Gubernat,
4315 Metro Parkway, Suite 550, Fort Myers, Florida 33916, or as otherwise agreed by September
21, 2018, or at such other time and place as mutually agreed.
SUBPOENA Page 1
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EXHIBIT A
HEREIN FAIL NOT, but of 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 is
issued 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 ____ day of August, 2018.
Issued by counsel for the Plaintiff:
Christopher J. Schwegmann Notary Public, State of Texas
Texas Bar No. 24051315
cjs@lynnllp.com
Jared D. Eisenberg
Texas 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
ATTORNEYS FOR PLAINTIFF MARY KAY INC.
SUBPOENA Page 2
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EXHIBIT A
OFFICER’S RETURN
Came to hand the __ day of _______, 2018 at ___ o’clock ___.M. and executed by delivering a
copy of this subpoena to the within named witness at the following time and place, to whit:
Delivered: ______________, 2018
At _________ o’clock ___. M.
Or not executed as the the witness for the following reason:
I actually and necessarily traveled ______ miles in the service of this Subpoena, in addition to
any this mileage I may have traveled in the service of this process in this cause ruing the same trip.
Summoning Witness: $________
Mileage: $ ________ ___________County, Texas
By:
(Print Name)
(Print Address)
(Telephone Number)
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EXHIBIT A
SCHEDULE A
INSTRUCTIONS
1. Each Request for Production requests documents and other materials you are to furnish
(including allduplicates, 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 to these requests, you are requested to
produce a copy of each document, and both sides thereof, all electronic 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 or 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 the job titles of each such person; and (f) a description of the document 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. If you 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) is furnished.
6. Each document or other material requested herein is to be produced in its entirety, without
deletion or 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 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.
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EXHIBIT A
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 is
otherwise no longer in your possession, custody or control, you are to identify the document 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, if known 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 conjunctions “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 vice 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 it currently exists and made available in that format unless otherwise agreed.
13. Each Request for Production shall be construed independently and not by reference to any 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.
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 FLORIDA RULES OF CIVIL PROCEDURE.
16. The relevant time period for these Requests is January 1, 2016 to the Present unless otherwise
stated.
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EXHIBIT A
DEFINITIONS
1. The terms “You,” or any variant thereof, means John Monhollon, M.D., his agents, assigns, legal
representatives, non-legal representatives, personal representatives, attorneys, employees, the Florida
Integrative Medical Center (“FIMC”) located at 2415 University Pkwy, Sarasota, Florida 34243, and also
includes individuals and entities who act, have acted, purport to act, or have purported to act on behalf
of John Monhollon, M.D.
2. The term “Mary Kay” means Mary Kay Inc., and includes its past 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.
3. The term “xxxxxxx” means xxxxx xxxxx xxxxxxx (or any of her other known names, including
Jaime xxxxxxx, Jaime C. xxxxxxx, or Jaime xxxxx) , and includes her past 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 her behalf, including but not limited to, Jenny Chavez, Chrissy Tighe, Amanda ThulinMarrano, Beth
Piland, Anastasia Alaimo, and/or Natalie Beckley, as well as any entity in which xxxxxxx has any interest
whatsoever.
4. 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.
5. 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.
6. 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.”
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EXHIBIT A
7. The term “including,” or one of its inflections, means and refers to “including, but not limited
to.”
8. 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 in advance.
9. 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.
10. As used herein, the words “relating to” or “relate 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 class of documents, events, acts or occurrences
described in this request.
11. The term “all” includes and encompasses “any.” The term “any” includes and encompasses “all.”
12. The word “identify,” when used herein as a reference to a document, means to state (1) its date,
(2) its author, (3) the type of document, e.g., letter, memorandum, receipt, invoice, schedule, report,
telegram, chart, photograph, sound production, etc., and (4) itspresent location and the name of its
present custodian.
13. “Identify” and “identity,” when used with respect to a natural person, means to
a. the person’s full name;
b. the person’s present or last known home and business addresses;
c. the person’s occupation or business; and
d. the person’s present or last known employer and position.
14. If any of the above information is not available, state any other available means of identifying
such person.
15. “Identify” and “identity,” when used with respect to an entity other than a natural person, means
to state:
a. the full name of the organization or entity;
b. the place and date of incorporation of the organization or entity;
c. the principal place of business of the organization or entity; and
d. the identity of persons representing or employed by the organization or entity having
knowledge of the matters related to this Lawsuit.
16. “Identify” and “identity,” when used with respect to a document, means to state:
a. its date;
b. its author(s) and signatory(ies);
c. its addressee(s);
d. its title or heading;
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EXHIBIT A
e. the type of document;
f. its custodian;
g. its present or last known location; and
h. a description of its subject matter and contents.
17. 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, state whether 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.
18. 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.
19. Any reference to a non-natural person includes that person’s past and present directors, officers,
agents, predecessors, successors, assigns, legal representatives, non-legal 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.
20. The singular includes the plural and vice versa.
21. The masculine gender includes the feminine and vice versa.
22. All other terms are to be interpreted in accordance with their normal usage in the English
language.
23. These discovery requests are limited to information not protected by the work product privilege.
SUBPOENA Page 8
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EXHIBIT A
DOCUMENTS FOR PRODUCTION
1. Your entire patient file for xxxxx xxxxx xxxxxxx;
2. All forms filled out by the patient including intake forms and medical histories;
3. Copies of photo identification and insurance cards;
4. All medical records, hospital records, SOAP notes, progress notes, consultations and referrals;
5. All lab testing reports or results including drug, toxicology, alcohol, blood, etc.;
6. All hospital or medical records in your possession from outside facilities;
7. All pain/rehabilitative management records and evaluations;
8. Any IME/CME reports performed by a doctor with your facility or any outside facility;
9. Prescription history including copies of written prescriptions;
10. All office notes (handwritten or typed), including notations on the file jacket;
11. Incoming and outgoing correspondence including faxes, letters and e-mails;
12. Any billing records including patient statements and billing ledgers that itemize payments and
adjustments;
13. All Workers’ Compensation documents and related medical records;
14. Duplicate copies of diagnostic images (CT’s/MRI’s/x-Ray’s) with their reports; *cd is preferred.
15. Lien letters and Letters of Protection;
16. Any other items not listed relating to the above-named patient, resulting in the production of the
entire patient file and/or files;
17. All documents and communications regarding any commissions, payments, fees, or financial
arrangements paid by or on behalf of You to xxxxxxx;
18. All documents and communications related to the production of any media (including, but not
limited to, video, audio recordings, podcasts, brochures, flyers, advertisements, or presentations) you
produced with xxxxxxx, including the Health is Wealth podcast series featuring xxxxxxx and You;
19. Copies of any media You produced or participated in with xxxxxxx, including any digital audio or
video files from the 2018 Health is Wealth podcast series featuring xxxxxxx and You. Specifically, please
produce copies of any podcast You produced or participated in with xxxxxxx broadcast or recorded on
or around March 26, 2018, April 9, 2018, April 23, 2018, and May 7, 2018;
20. All documents and communications related to xxxxxxx promoting your services or the services
of FIMC, including, but not limited to scheduling appointments and promoting B12 shots;
21. All documents and communications related to xxxxxxx promoting any supplements or treatments
provided by you or FIMC;
22. All contracts and agreements with xxxxxxx, including any documents reflecting agreements on
whose website registration for the Health is Wealth podcast would be hosted, documents reflecting
division of ASEA recruits, and/or documents reflecting division of ASEA commissions;
23. All documents and communications with xxxxxxx regarding the sale of supplements or products
provided by You or FIMC on any website maintained by xxxxxxx.
24. All documents and communications concerning, relating, or referring to any contract or
agreement between ASEA and You and/or FIMC.
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EXHIBIT A
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
AFFIDAVIT OF CUSTODIAN OF BUSINESS RECORDS
STATE OF ___________ )
)
COUNTY OF __________ )
I, _______________________________, being duly sworn, state as follows:
1. I am over the age of 18, and I am competent to testify to the matters contained herein.
2. I am the custodian of records for Florida Integrative Medical Center (“FIMC”) and have
personal knowledge of its record keeping practices.
3. Attached hereto, collectively as Exhibit A, are ________ pages of records from FIMC.
4. These said pages of records are kept by FIMC in the regular course of business.
5. It is the regular practice of FIMC for an employee or representative with knowledge of the act,
event, incident, order, transaction, invoice, condition, photo, video recording, audio recording, opinion,
or diagnosis, to make the record, or to transmit information thereof to be included in such record.
6. The said records were made at or near the time of occurrence of the matters set forth by, or
from information transmitted by, a person with knowledge of those matters.
7. The said records attached hereto are the originals or exact duplicates of the originals.
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EXHIBIT A
FURTHER AFFIANT SAITH NOT.
______________________________
(Signature of Custodian)
______________________________
(Print Name)
SWORN TO AND SUBSCRIBED BEFORE ME
THIS THE _____ DAY OF _____________, 2018.
________________________________________
Notary Public
My Commission Expires: ___________________
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EXHIBIT B
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 APPLICATION FOR COMMISSION TO SERVE SUBPOENA ON
FLORIDA INTEGRATIVE MEDICAL CENTER
Before the Court is Plaintiff Mary Kay Inc.’s Application for Commission to Serve Subpoena
on Florida Integrative Medical Center. (the “Motion”). Having considered the Motion and all other
matters properly before the Court, the Court is of the opinion that the Motion should be GRANTED.
Accordingly, the Court hereby ORDERS the District Clerk to issue a Commission directing
any Notary Public, or any person authorized in the state of Florida to have a Subpoena issued which
conforms to the attached Subpoena on Florida Integrative Medical Center to produce the documents
and other tangible items requested.
Dated: _______________ ____, 2018 ______________________________
PRESIDING JUDGE
Page 15 of 16
EXHIBIT C
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
COMMISSION TO SERVE SUBPOENA ON FLORIDA
INTEGRATIVE MEDICAL CENTER
THE STATE OF TEXAS to the Clerk of Sarasota County District Court, 2002 Ringling Blvd.,
Sarasota FL 34237:
WHEREAS, the above-styled cause is pending in the 116th Judicial District Court in Dallas
County, Texas, and it has been suggested to us that justice cannot be completely done between and
among the said parties without the subpoena duces tecum of Florida Integrative Medical Center
(“FIMC”), which is located within your jurisdiction.
WE, THEREFORE, request in the interest of justice that you issue a subpoena, as
designated in Plaintiff’s Subpoena, attached hereto, with notice to Florida Integrative Medical Center,
2415 University Parkway Sarasota Florida 34243, to produce the documents and other tangibles
requested at Banker Lopez Gassler, P.A., Attn: Jesse Gubernat, 4315 Metro Parkway, Suite 550, Fort
Myers, Florida 33916, or as otherwise agreed by September 21, 2018, or at such other time and place
as mutually agreed.
SIGNED on this ____ day of ________, 2018.
____________________________________
Clerk, Dallas County District Court
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Preview
FILED DALLAS COUNTY 8/27/2018 11:20 AM 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 APPLICATION FOR COMMISSION TO SERVE FLORIDA INTEGRATED MEDICAL CENTER Plaintiff Mary Kay Inc. (“Plaintiff”) files its Application for Commission to Serve Subpoena on Florida Integrated Medical Center, a Florida company, as follows: I. GROUNDS FOR THE APPLICATION Pursuant to Rules 176 and 205.1 of the Texas Rules of Civil Procedure, Plaintiff seeks a subpoena duces tecum of Florida Integrated Medical Center (“FIMC”), for use in the State of Texas in this proceeding. To properly pursue this action, Plaintiff needs to subpoena relevant documents, which are important to the issues raised and claims asserted in this case. 1 FIMC can be served through its counsel, Bruce Rosenberg, 2385 NW Executive Center Drive, Suite 100, Boca Raton, Florida 33431, which is outside the jurisdiction of the Texas courts. Accordingly, the Subpoena is attached as Exhibit A; the proposed Order granting the Application for Commission is attached as Exhibit B; and the proposed Commission to be signed by the court clerk is attached as Exhibit C. 1 On July 3, 2018, Plaintiff provided notice to Defendant of its intention to subpoena FIMC. PLAINTIFF’S APPLICATION FOR COMMISSION TO SERVE SUBPOENA ON FLORIDA INTEGRATED MEDICAL CENTER PAGE 1 Page 1 of 16 The Subpoena shall require FIMC to produce documents and tangible things requested in Schedule A thereto by September 21, 2018, or as otherwise agreed by the parties, to the offices of Banker Lopez Gassler, P.A., 4315 Metro Pkwy #550, Fort Myers, Florida 33916. 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 FIMC, a subpoena directing FIMC to produce the documents and other tangible things at the time and place specified in the attached Subpoena (Ex. A.). 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 Florida, to have a Subpoena issued which conforms to the attached Subpoena on FIMC, and to compel FIMC to produce the documents and other tangible items, and for such other and further relief as Plaintiff may show itself justly entitled. PLAINTIFF’S APPLICATION FOR COMMISSION TO SERVE SUBPOENA ON FLORIDA INTEGRATED MEDICAL CENTER PAGE 2 Page 2 of 16 Dated: August 27, 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 jherz@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 ECF August 27, 2018. /s/ Christopher J. Schwegmann Christopher J. Schwegmann PLAINTIFF’S APPLICATION FOR COMMISSION TO SERVE SUBPOENA ON FLORIDA INTEGRATED MEDICAL CENTER PAGE 3 Page 3 of 16 EXHIBIT A DISCOVERY SUBPOENA DUCES TECUM 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 THE STATE OF TEXAS TO ANY SHERIFF OR CONSTABLE OF THE STATE OF TEXAS OR OTHER PERSON AUTHORIZED TO SERVE AND EXECUTE SUBPOENAS AS PROVIDED IN RULES 176 AND 205 OF THE TEXAS RULES OF CIVIL PROCEDURE, GREETINGS: YOU ARE HEREBY COMMANDED TO SUMMON: Florida Integrated Medical Center Attn: Bruce Rosenberg Rosenberg Law, P.A. 2385 NW Executive Center Drive, Suite 100 Boca Raton, Florida, 33431 to produce the documents and tangible things requested in Schedule A (“Command to Produce Documents”) to this Subpoena, at the offices of Banker Lopez Gassler, P.A., Attn: Jesse Gubernat, 4315 Metro Parkway, Suite 550, Fort Myers, Florida 33916, or as otherwise agreed by September 21, 2018, or at such other time and place as mutually agreed. SUBPOENA Page 1 Page 4 of 16 EXHIBIT A HEREIN FAIL NOT, but of 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 is issued 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 ____ day of August, 2018. Issued by counsel for the Plaintiff: Christopher J. Schwegmann Notary Public, State of Texas Texas Bar No. 24051315 cjs@lynnllp.com Jared D. Eisenberg Texas 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 ATTORNEYS FOR PLAINTIFF MARY KAY INC. SUBPOENA Page 2 Page 5 of 16 EXHIBIT A OFFICER’S RETURN Came to hand the __ day of _______, 2018 at ___ o’clock ___.M. and executed by delivering a copy of this subpoena to the within named witness at the following time and place, to whit: Delivered: ______________, 2018 At _________ o’clock ___. M. Or not executed as the the witness for the following reason: I actually and necessarily traveled ______ miles in the service of this Subpoena, in addition to any this mileage I may have traveled in the service of this process in this cause ruing the same trip. Summoning Witness: $________ Mileage: $ ________ ___________County, Texas By: (Print Name) (Print Address) (Telephone Number) SUBPOENA Page 3 Page 6 of 16 EXHIBIT A SCHEDULE A INSTRUCTIONS 1. Each Request for Production requests documents and other materials you are to furnish (including allduplicates, 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 to these requests, you are requested to produce a copy of each document, and both sides thereof, all electronic 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 or 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 the job titles of each such person; and (f) a description of the document 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. If you 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) is furnished. 6. Each document or other material requested herein is to be produced in its entirety, without deletion or 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 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. SUBPOENA Page 4 Page 7 of 16 EXHIBIT A 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 is otherwise no longer in your possession, custody or control, you are to identify the document 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, if known 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 conjunctions “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 vice 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 it currently exists and made available in that format unless otherwise agreed. 13. Each Request for Production shall be construed independently and not by reference to any 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. 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 FLORIDA RULES OF CIVIL PROCEDURE. 16. The relevant time period for these Requests is January 1, 2016 to the Present unless otherwise stated. SUBPOENA Page 5 Page 8 of 16 EXHIBIT A DEFINITIONS 1. The terms “You,” or any variant thereof, means John Monhollon, M.D., his agents, assigns, legal representatives, non-legal representatives, personal representatives, attorneys, employees, the Florida Integrative Medical Center (“FIMC”) located at 2415 University Pkwy, Sarasota, Florida 34243, and also includes individuals and entities who act, have acted, purport to act, or have purported to act on behalf of John Monhollon, M.D. 2. The term “Mary Kay” means Mary Kay Inc., and includes its past 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. 3. The term “xxxxxxx” means xxxxx xxxxx xxxxxxx (or any of her other known names, including Jaime xxxxxxx, Jaime C. xxxxxxx, or Jaime xxxxx) , and includes her past 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 her behalf, including but not limited to, Jenny Chavez, Chrissy Tighe, Amanda ThulinMarrano, Beth Piland, Anastasia Alaimo, and/or Natalie Beckley, as well as any entity in which xxxxxxx has any interest whatsoever. 4. 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. 5. 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. 6. 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.” SUBPOENA Page 6 Page 9 of 16 EXHIBIT A 7. The term “including,” or one of its inflections, means and refers to “including, but not limited to.” 8. 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 in advance. 9. 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. 10. As used herein, the words “relating to” or “relate 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 class of documents, events, acts or occurrences described in this request. 11. The term “all” includes and encompasses “any.” The term “any” includes and encompasses “all.” 12. The word “identify,” when used herein as a reference to a document, means to state (1) its date, (2) its author, (3) the type of document, e.g., letter, memorandum, receipt, invoice, schedule, report, telegram, chart, photograph, sound production, etc., and (4) itspresent location and the name of its present custodian. 13. “Identify” and “identity,” when used with respect to a natural person, means to a. the person’s full name; b. the person’s present or last known home and business addresses; c. the person’s occupation or business; and d. the person’s present or last known employer and position. 14. If any of the above information is not available, state any other available means of identifying such person. 15. “Identify” and “identity,” when used with respect to an entity other than a natural person, means to state: a. the full name of the organization or entity; b. the place and date of incorporation of the organization or entity; c. the principal place of business of the organization or entity; and d. the identity of persons representing or employed by the organization or entity having knowledge of the matters related to this Lawsuit. 16. “Identify” and “identity,” when used with respect to a document, means to state: a. its date; b. its author(s) and signatory(ies); c. its addressee(s); d. its title or heading; SUBPOENA Page 7 Page 10 of 16 EXHIBIT A e. the type of document; f. its custodian; g. its present or last known location; and h. a description of its subject matter and contents. 17. 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, state whether 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. 18. 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. 19. Any reference to a non-natural person includes that person’s past and present directors, officers, agents, predecessors, successors, assigns, legal representatives, non-legal 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. 20. The singular includes the plural and vice versa. 21. The masculine gender includes the feminine and vice versa. 22. All other terms are to be interpreted in accordance with their normal usage in the English language. 23. These discovery requests are limited to information not protected by the work product privilege. SUBPOENA Page 8 Page 11 of 16 EXHIBIT A DOCUMENTS FOR PRODUCTION 1. Your entire patient file for xxxxx xxxxx xxxxxxx; 2. All forms filled out by the patient including intake forms and medical histories; 3. Copies of photo identification and insurance cards; 4. All medical records, hospital records, SOAP notes, progress notes, consultations and referrals; 5. All lab testing reports or results including drug, toxicology, alcohol, blood, etc.; 6. All hospital or medical records in your possession from outside facilities; 7. All pain/rehabilitative management records and evaluations; 8. Any IME/CME reports performed by a doctor with your facility or any outside facility; 9. Prescription history including copies of written prescriptions; 10. All office notes (handwritten or typed), including notations on the file jacket; 11. Incoming and outgoing correspondence including faxes, letters and e-mails; 12. Any billing records including patient statements and billing ledgers that itemize payments and adjustments; 13. All Workers’ Compensation documents and related medical records; 14. Duplicate copies of diagnostic images (CT’s/MRI’s/x-Ray’s) with their reports; *cd is preferred. 15. Lien letters and Letters of Protection; 16. Any other items not listed relating to the above-named patient, resulting in the production of the entire patient file and/or files; 17. All documents and communications regarding any commissions, payments, fees, or financial arrangements paid by or on behalf of You to xxxxxxx; 18. All documents and communications related to the production of any media (including, but not limited to, video, audio recordings, podcasts, brochures, flyers, advertisements, or presentations) you produced with xxxxxxx, including the Health is Wealth podcast series featuring xxxxxxx and You; 19. Copies of any media You produced or participated in with xxxxxxx, including any digital audio or video files from the 2018 Health is Wealth podcast series featuring xxxxxxx and You. Specifically, please produce copies of any podcast You produced or participated in with xxxxxxx broadcast or recorded on or around March 26, 2018, April 9, 2018, April 23, 2018, and May 7, 2018; 20. All documents and communications related to xxxxxxx promoting your services or the services of FIMC, including, but not limited to scheduling appointments and promoting B12 shots; 21. All documents and communications related to xxxxxxx promoting any supplements or treatments provided by you or FIMC; 22. All contracts and agreements with xxxxxxx, including any documents reflecting agreements on whose website registration for the Health is Wealth podcast would be hosted, documents reflecting division of ASEA recruits, and/or documents reflecting division of ASEA commissions; 23. All documents and communications with xxxxxxx regarding the sale of supplements or products provided by You or FIMC on any website maintained by xxxxxxx. 24. All documents and communications concerning, relating, or referring to any contract or agreement between ASEA and You and/or FIMC. SUBPOENA Page 9 Page 12 of 16 EXHIBIT A 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 AFFIDAVIT OF CUSTODIAN OF BUSINESS RECORDS STATE OF ___________ ) ) COUNTY OF __________ ) I, _______________________________, being duly sworn, state as follows: 1. I am over the age of 18, and I am competent to testify to the matters contained herein. 2. I am the custodian of records for Florida Integrative Medical Center (“FIMC”) and have personal knowledge of its record keeping practices. 3. Attached hereto, collectively as Exhibit A, are ________ pages of records from FIMC. 4. These said pages of records are kept by FIMC in the regular course of business. 5. It is the regular practice of FIMC for an employee or representative with knowledge of the act, event, incident, order, transaction, invoice, condition, photo, video recording, audio recording, opinion, or diagnosis, to make the record, or to transmit information thereof to be included in such record. 6. The said records were made at or near the time of occurrence of the matters set forth by, or from information transmitted by, a person with knowledge of those matters. 7. The said records attached hereto are the originals or exact duplicates of the originals. SUBPOENA Page 10 Page 13 of 16 EXHIBIT A FURTHER AFFIANT SAITH NOT. ______________________________ (Signature of Custodian) ______________________________ (Print Name) SWORN TO AND SUBSCRIBED BEFORE ME THIS THE _____ DAY OF _____________, 2018. ________________________________________ Notary Public My Commission Expires: ___________________ SUBPOENA Page 11 Page 14 of 16 EXHIBIT B 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 APPLICATION FOR COMMISSION TO SERVE SUBPOENA ON FLORIDA INTEGRATIVE MEDICAL CENTER Before the Court is Plaintiff Mary Kay Inc.’s Application for Commission to Serve Subpoena on Florida Integrative Medical Center. (the “Motion”). Having considered the Motion and all other matters properly before the Court, the Court is of the opinion that the Motion should be GRANTED. Accordingly, the Court hereby ORDERS the District Clerk to issue a Commission directing any Notary Public, or any person authorized in the state of Florida to have a Subpoena issued which conforms to the attached Subpoena on Florida Integrative Medical Center to produce the documents and other tangible items requested. Dated: _______________ ____, 2018 ______________________________ PRESIDING JUDGE Page 15 of 16 EXHIBIT C 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 COMMISSION TO SERVE SUBPOENA ON FLORIDA INTEGRATIVE MEDICAL CENTER THE STATE OF TEXAS to the Clerk of Sarasota County District Court, 2002 Ringling Blvd., Sarasota FL 34237: WHEREAS, the above-styled cause is pending in the 116th Judicial District Court in Dallas County, Texas, and it has been suggested to us that justice cannot be completely done between and among the said parties without the subpoena duces tecum of Florida Integrative Medical Center (“FIMC”), which is located within your jurisdiction. WE, THEREFORE, request in the interest of justice that you issue a subpoena, as designated in Plaintiff’s Subpoena, attached hereto, with notice to Florida Integrative Medical Center, 2415 University Parkway Sarasota Florida 34243, to produce the documents and other tangibles requested at Banker Lopez Gassler, P.A., Attn: Jesse Gubernat, 4315 Metro Parkway, Suite 550, Fort Myers, Florida 33916, or as otherwise agreed by September 21, 2018, or at such other time and place as mutually agreed. SIGNED on this ____ day of ________, 2018. ____________________________________ Clerk, Dallas County District Court Page 16 of 16