Motion for Discovery in F James Mcguire v. The Mcguire Group| Trellis.Law

On January 20, 2023 a Party Notice was filed involving a dispute between F James Mcguire, and The Mcguire Group, for Commercial Division in the District Court of Erie County.

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FILED: ERIE COUNTY CLERK 07/28/2023 02:54 PM INDEX NO. 801061/2023
NYSCEF DOC. NO. 15 RECEIVED NYSCEF: 07/28/2023

SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF ERIE
F. JAMES McGUIRE, Index No. 801061/23

Plaintiff, DEFENDANT’S REQUEST
FOR THE PRODUCTION
- against - OF DOCUMENTS

THE McGUIRE GROUP, INC.,

Defendant.

PLEASE TAKE NOTICE that, pursuant to Article 31 of the New York Civil Practice

Law & Rules, defendant THE McGUIRE GROUP, INC. (“Defendant”), by its attorneys, Fryman

PC, hereby demands that plaintiff F. JAMES McGUIRE (“Plaintiff”) produce for inspection and

copying each of the documents and things designated below. All such documents and things are

to be produced at the offices of at the offices of Fryman PC, 10 East Merrick Road, Ste. 305,

Valley Stream, NY 11580 within the time provided for by the CPLR and any applicable Court

Order.

DEFINITIONS

The words and phrases in this document request are defined as follows:

1. Communications/Correspondence. The terms “communications” and “correspon-

dence” are used interchangeably and mean the electronic, oral, or written transmittal of information

(in the form of facts, ideas, inquiries or otherwise).

2. Document. The term “document” means and includes, without limitation, all

originals, copies (if the originals are not available), non-identical copies (whether different from

the original because of underlining, editing marks, notes made on or attached to such copy, or

otherwise) and drafts of the following items, whether printed or recorded (through a sound, video,

computer, digital, optical or magnetic recording system) or reproduced by hand: contracts,

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agreements, communications, writings, correspondence, facsimiles, memoranda, records, reports,

books, summaries or records of telephone conversations, summaries or records of personal

conversations or interviews, diaries, calendars, forecasts, statistical statements, work papers, e-

mails (personal or corporate), text messages, third-party messaging app data, web-pages, electronic

bulletin boards, ledgers, drafts, graphs, charts, accounts, analytical records, minutes or records of

meetings or conferences, consultants’ reports, appraisals, records, reports or summaries of

negotiations, brochures, pamphlets, circulars, trade letters, press releases, notes, marginal

notations, bills, invoices, checks, photographs, tape recordings, microfilm, microfiche, floppy

diskettes, lists, journals, advertisements, file folders, social media posts or messages, computer

tapes and hard drives, source code, object code or other computer language or recording, and any

other writing of whatever description, however produced or reproduced, within your possession,

custody or control, including, but not limited to, documents within the files of your attorneys,

consultants, accountants, or agents. The term is used herein in the broadest possible sense and

means any written, graphic or other recorded (whether visually, electronically, magnetically or

otherwise) matter of whatever kind or nature or any other means of preserving thought or

expression and all tangible things from which information can be processed, transcribed or

retrieved, whether originals, copies or drafts (including, without limitation, non-identical copies),

however produced or reproduced. A document with handwritten, typewritten or other recorded

notes, editing marks, etc., is not and shall not be deemed identical to one without such

modifications, additions, or deletions. The term “original” includes the file copy or copies of any

document if there is no actual original or ribbon copy. Any communication and/or correspondence

that is a document is encompassed in the term “document.” This includes documents stored in any

medium from which information can be obtained either directly or, if necessary, after translation

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by the responding party into a reasonably usable form. A draft or non-identical copy is a separate

document within the meaning of this term.

3. Communicate. The term “communicate” means any manner or form of information

or message transmission, however produced or reproduced, whether by “document” as herein

defined or orally or otherwise, which is made, distributed or circulated between or among persons,

or data storage or processing units, and any and all documents containing, consisting of, or relating

or referring to in any way, either directly or indirectly, to a communication.

4. Identify (with respect to Documents). When asked to “identify” or “for the

identity” of a document, you are required to furnish a copy of each such document in lieu of

identifying the same. When furnishing a copy of a document, specify the request being answered

in this manner, and identify the document so supplied to show the request to which the document

relates. If a copy of a particular document is not available, then set forth: (i) its date and general

type of category (i.e., letter, contract, memorandum); (ii) the identity of its author and each person

who aided or assisted in its preparation, including persons who contributed information contained

in or submitted for use in such document; (iii) the identity of each addressee and other distributee

to whom the document was directed, distributed, and by whom it was received, read or both; (iv)

the identity of its last-known location or custodian; (v) the reason or reasons for the inability to

locate such document and the circumstances of its unavailability; (vi) if the document is no longer

in your possession or control and the circumstances of its disposition are known, set forth the date

and circumstances of the disposition thereof, as well as the identity of the person or entity to whom

custody or possession was given; and (vii) its subject matter and substance.

5. Identify (with respect to natural persons). When asked to “identify” or “for the

identity” of any natural person, set forth (i) the full name and present or last-known business or

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residence address of such person; (ii) his or her present or last-known business affiliation; (iii) his

or her present telephone number, with the area code prefix; and (iv) his or her position and business

affiliation, including a description of his or her duties or responsibilities at the time of or during

the period in question.

6. Identify (with respect to entities other than a natural person). When asked to

“identify” or “for the identity” of any entity other than a natural person, set forth its (i) full name

or title; (ii) address, telephone number with area code prefix; (iii) date and jurisdiction under the

laws of which it was organized or incorporated, or, in the case of any entity other than a

corporation, state the type of organization, the names of its members, and the date and place of its

organization; and (iv) the identity of all persons who acted or who authorized another to act on its

behalf in connection with the matters referred to.

7. “Relating to” or “Concerning”. The terms “relating to” and “concerning” mean

describing, supporting, embodying, considering, contradicting, evidencing, constituting,

mentioning, respecting, bearing on, referring to, or addressed, in whole or in part, to that subject,

and may be used interchangeably with any of these terms.

8. All/Any/Each. The terms “all”, “any”, and “each” shall each be construed as

encompassing any and all.

9. And/Or. The connectives “and” and “or” shall be construed either disjunctively or

conjunctively as necessary to bring within the scope of the discovery request all responses that

might otherwise be construed to be outside of its scope. The forward slash mark (“/”) shall mean

and be construed in the same manner.

10. Number. The use of the singular form of any word includes the plural and vice

versa. The use of a verb in any tense shall be construed as the use of the verb in all other tenses

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wherever necessary to bring within the scope of these discovery requests any response that might

otherwise be construed to be outside their scope.

11. Including. The term “include” or “including” shall be deemed to be followed by

the phrase “without limitation.”

12. Person. The term “person” means any natural person or any business, legal or

governmental entity or association, and all of its agents, representatives, attorneys, and other

persons acting by or through the named person or on its behalf with respect to the subject matter

of this litigation.

13. “You” or “Your”. The terms “you” or “your” mean the person responding these

Document Requests.

14. The “Action”. The “Action” means the instant litigation.

15. “Plaintiff”. “Plaintiff” means plaintiff F. JAMES McGUIRE as well as his

predecessors, successors, assigns, agents, attorneys, employees, accountants, affiliates, and any

Person acting on his or their behalf.

16. “Defendant”. The term “Defendant” shall collectively refer to the defendant in the

Action as well as its predecessors, successors, assigns, agents, attorneys, managers, members,

principals, directors, employees, accountants, affiliates, and any Person acting on its or their

behalf.

17. “Complaint”. The term “Complaint” means the Complaint filed by Plaintiff in the

Action.

18. “Counterclaims”. The term “Counterclaims” means the First Amended Answer &

Counterclaims filed by Defendant in the Action.

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19. “Reply”. The term “Reply” means the Responses to Counterclaims filed by

Plaintiff in the Action.

20. “Agreement”. The term “Agreement” shall refer to the Executive Employment

Agreement, dated March 16, 2017, which is annexed to the Complaint.

21. “Cayuga Premises”. The term “Cayuga Premises” shall refer to the premises

located at 455 Cayuga Road, Cheektowaga, NY, which is referenced in paragraph 46 of the

Counterclaims.

22. “Lease”. The term “Lease” shall refer to the lease agreement for the Cayuga

Premises, which is referenced in paragraph 46 of the Counterclaims.

23. “Lease Amendment”. The term “Lease Amendment” shall refer to the lease

amendment for the Cayuga Premises, which is referenced in paragraph 49 of the Counterclaims.

24. “MDC”. The term “MDC” shall collectively refer to McGuire Development Co.,

as well as its predecessors, successors, assigns, agents, attorneys, managers, members, principals,

directors, employees, accountants, affiliates, and any Person acting on its or their behalf.

25. “StarPro”. The term “StarPro” shall collectively refer to the commercial enterprise

referred to in paragraph 33 of the Counterclaims, as well as its predecessors, successors, assigns,

agents, attorneys, managers, members, principals, directors, employees, accountants, affiliates,

and any Person acting on its or their behalf.

26. “MediLodge”. The term “MediLodge” shall collectively refer to the skilled nursing

operator referred to in paragraph 35 of the Counterclaims, as well as its predecessors, successors,

assigns, agents, attorneys, managers, members, principals, directors, employees, accountants,

affiliates, and any Person acting on its or their behalf.

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27. “Wolf”. The term “Wolf” shall collectively refer to Elizabeth “Libby” Wolf, as

well as her predecessors, successors, assigns, agents, attorneys, employees, accountants, affiliates,

and any Person acting on her or their behalf.

28. “Facilities”. The term “Facilities” shall refer to the seven skilled nursing facilities

located in Erie, Niagara and Suffolk Counties of New York, and Macomb County, MI, which are

referenced in paragraph 5 of the Counterclaims.

29. Whenever there is a reference to a person, it includes such person’s agents,

affiliates, representatives, attorneys, and other persons acting by or through the named person or

entity.

30. Whenever there is a reference to an entity, it includes the entity’s predecessors,

successors, assigns, affiliates, agents, attorneys, managers, members, principals, directors,

employees, accountants, affiliates, and any Person acting on its behalf.

GENERAL INSTRUCTIONS

1. All documents shall either (a) be produced as they are kept in the ordinary course

of business, or (b) shall be organized and labeled so as to correspond to these Requests.

2. The documents should identify who produced them and be numbered consecutively

3. Electronically stored information is to be produced in native format, unless

otherwise agreed between counsel or unless such information could not be retrieved or accessed

with the use of commonly used commercial off-the-shelf software, in which event counsel is

requested to contact the undersigned to discuss the form of production. In addition, it is requested

that all electronically stored information be produced as .TIFF images with

Relativity/Concordance load files (.DAT and .OPT) and searchable text (i.e., OCR).

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4. If you object to any Document Request or part thereof, state with reasonable

particularity the grounds for such objection.

5. If you object to any Document Request or part thereof, set forth specifically: (i)

whether the objection(s) interposed pertains to all or part of the request being challenged; (ii)

whether any documents or categories of documents are being withheld, and if so, which of the

stated objections forms the basis for your decision to withhold otherwise responsive documents or

categories of documents; and (iii) the manner in which you intend to limit the scope of its

production.

6. If the response to any Document Request consists, in whole or in part, of an

objection on the basis of or including burdensomeness, then provide those documents that can be

produced without undue burden. For such documents that are too burdensome to produce, describe

the process or method required to obtain said documents, the quantity and location of the

documents involved, and the number of employee hours and costs of the search.

7. Where a claim of privilege is asserted in objecting to any Document Request, or

sub-part thereof, and the requested information is not provided on the basis of such assertion:

(a) in the objection to the Document Request, or sub-part thereof, identify the

nature of the privilege (including work product) which is being claimed and, if the privilege

is being asserted in connection with a claim or defense governed by state law, indicate the

state’s privilege rule being invoked; and

(b) provide the following information:

(1) the type of document;

(2) the general subject matter of the document;

(3) the date of the document;

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(4) such other information as is sufficient to identify the document for

a subpoena duces tecum, including, where appropriate, the author of

the document, the addressee of the document, and where not

apparent, the relationship of the author and addressee to each other;

8. If any document requested herein was formerly in your possession, custody or

control, but is no longer in your possession, custody or control: (i) identify each such document

(pursuant to Definition #4 above); (ii) identify each person who now has or ever had possession,

custody or control of such documents; and (iii) state, to the extent known to you, the reason the

document is no longer in your possession, custody or control and the circumstances under which

it ceased to be in your possession, custody or control.

9. Unless otherwise specified, the Document Requests cover the time period from

October 31, 2016 through the date of your response.

10. Each request for the production of documents shall be deemed continuing so as to

require prompt supplemental responses if you obtain or discover additional documents between

the time of initial production and the time of trial.

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REQUESTS FOR DOCUMENTS TO BE PRODUCED

Complaint

1. All documents and communications concerning the Agreement, including any

drafts thereto.

2. All documents and communications concerning the negotiation of the Agreement,

including any drafts thereto.

3. All documents and communications concerning salary compensation Plaintiff

received from Defendant.

4. All documents and communications concerning non-salary compensation and

benefits Plaintiff received from Defendant.

5. All documents and communications that Plaintiff contends support the conclusion

that “Good Reason” as that term is used in Section 3.2(b) of the Agreement was satisfied.

6. All documents and communications that discuss or explain the meaning of “Good

Reason” as that term is used in Section 3.2(b) of the Agreement.

7. All documents and communications concerning any material changes to the terms

of Plaintiff’s employment that were initiated by Defendant.

8. All documents and communications concerning reductions in Plaintiff’s base salary

at the Company since the March 1, 2017.

9. All documents and communications concerning the following allegations contained

in paragraph 10 of the Complaint:

(a) that Defendant “continually undermin[ed] Plaintiff’s involvement and

communication with Company staff, going so far as to instruct department

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heads that they were not allowed to communicate with him, including with

respect to critical financial and operational information”;

(b) that Defendant “eliminat[ed] Plaintiff’s access to all of the Company’s files

on the Company’s computer network”;

invitations”;

(d) that Defendant “remov[ed] every mention of [Plaintiff] from the Company

website”;

(e) that Defendant “discontinue[ed] reimbursement of [Plaintiff’s] reasonable

business expenses in violation of Section 2.5 of the Agreement”; and

(f) that Defendant “replac[ed] [Plaintiff] as CEO in 2021 without prior notice.”

10. All documents and communications concerning Plaintiff’s decision to terminate his

employment for Good Reason as alleged in paragraph 12 of the Complaint.

11. All documents and communications concerning Plaintiff’s contention that he is

entitled to a termination payment pursuant to the Agreement.

12. All documents and communications concerning Defendant’s refusal to pay Plaintiff

a termination payment pursuant to the Agreement.

13. All documents and communications concerning Defendant’s objection to salary

payments as alleged in paragraph 24 of the Complaint.

14. All documents and communications concerning the damages that Plaintiff alleges

he suffered as a result of actions or inaction by Defendant.

15. All documents and communications concerning Plaintiff’s efforts, if any, to

mitigate his damages.

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Counterclaims

16. All documents and communications concerning Plaintiff’s performance of his

duties as Defendant’s CEO since March 1, 2017.

17. All documents and communications concerning Plaintiff’s decision to move to

Florida, including all documents reflecting the dates that Plaintiff:

a) purchased or leased his residence in Florida;

b) physically moved his abode to Florida; and

c) changed his legal residence to Florida.

18. All documents and communications reflecting any instances in which Plaintiff

traveled, either directly or indirectly, between Florida and New York, since January 1, 2018.

19. All documents and communications concerning Plaintiff’s attempts, if any, to

determine whether moving to Florida would negatively impact the ability to perform his duties

and responsibilities as Defendant’s CEO.

20. All documents and communications concerning Plaintiff’s attendance at

Management Briefs, as that term is defined in the Counterclaims, since January 1, 2018.

21. All documents and communications concerning Plaintiff’s purported resignation as

Defendant’s CEO in May 2022.

22. All documents and communications concerning agreements between Plaintiff and

Defendant concerning Plaintiff’s salary.

23. All documents and communications concerning agreements between Plaintiff and

StarPro.

24. All documents and communications reflecting the services that Plaintiff provided

for the benefit of StarPro.

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25. All documents and communications exchanged between Plaintiff and MediLodge.

26. All documents and communications concerning consulting services that Plaintiff

provided to or for the benefit of MediLodge.

27. All documents and communications concerning the Lease or the Lease

Amendment.

28. All documents and communications between and among Plaintiff, MDC, and any

other person concerning the Lease or the Lease Amendment.

29. All documents and communications concerning any assignment of the Lease.

30. All documents and communications concerning fees paid by Defendant to MDC.

31. All documents and communications concerning services MDC provided to

Defendant since March 1, 2017 for which MDC received monetary compensation from Defendant.

32. All documents and communications exchanged between Plaintiff and Wolf

concerning complaints Wolf had about Defendant or Wolf’s employment by Defendant.

33. All documents and communications exchanged between Plaintiff and any Person

concerning complaints such Person(s) had about Defendant or about such Person(s)’ employment

by Defendant.

34. All documents and communications concerning any quality and integrity issues

with the operation and management of the Facilities.

35. All documents and communications concerning Defendant’s employees providing

services to or on behalf of StarPro.

36. All documents and communications concerning agreements between StarPro and

Defendant’s affiliated facilities, Brookhaven Healthcare and Harris Hill Healthcare.

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37. All documents and communications concerning Defendant’s employees providing

services to or on behalf of MDC.

38. All documents and communications concerning the methods Plaintiff used to

ascribe values to Defendant’s accounts receivables.

39. All documents and communications concerning Plaintiff’s attempts to return

improper salary payments as alleged in paragraph 23 of the Reply.

40. All documents and communications concerning the allegation contained in

paragraphs 24, 41 and 68 of the Reply that Defendant and Edward Farbenblum approved Plaintiff’s

salary.

41. All documents and communications concerning the amount of “adequate time in

Buffalo and Defendant’s office space” that Plaintiff spent as alleged in paragraph 29 of the Reply.

42. All documents and communications concerning Plaintiff’s appointment as a

member of StarPro’s board of advisors, as alleged in paragraph 34 of the Reply.

43. All documents and communications concerning the allegation contained in

paragraph 46 of the Reply that Defendant approved the Lease prior to the signing of same.

44. All documents and communications concerning the allegation contained in

paragraph 47 of the Reply that MDC pays fair market value for its use of the Cayuga Premises,

including all documents and communications concerning the fair market rental value of the Cayuga

Premises.

45. A copy of the Amended and Restated Master Lease dated September 1, 2014,

referred to in paragraph 58 of the Reply.

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46. All documents and communications concerning the “services rendered” as alleged

in paragraph 59 of the Reply.

47. All documents and communications concerning the “critical services” that MDC

provided to Defendant and the Facilities as alleged in paragraph 60 of the Reply.

48. All documents and communications concerning the allegation contained in

paragraph 62 of the Reply that Defendant and Edward Farbenblum were aware of and approved

the fee arrangement with MDC.

General

49. All documents concerning any admissions, statements, or declarations against

interest made by any party in the Action.

50. All documents concerning statements, depositions, affidavits, certifications, or

declarations, whether formal or informal, draft or final, You have obtained from any person whom

You believe has knowledge or information relating to any of the allegations, statements,

transactions, claims, denials, or defenses at issue in the Action.

51. All documents You have provided to any expert, consultant, or any other person

retained by You concerning this Action.

52. All documents You have created and/or that exist to support Your legal or factual

positions in the Action.

53. All communications including, without limitation, notes, internal and external

memoranda, letters, e-mails, tapes, recordings, text messages, notices, and/or other documentation

between and among the Defendant and any person or entity concerning the allegations in the

Complaint or Plaintiff’s damages.

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54. All documents You intend to use at an oral examination before trial and/or trial,

including, without limitation, all documents You intend to mark for identification, introduce into

evidence, use for impeachment purposes, or use for direct, cross-examination, and/or rebuttal.

55. All documents that in whole or in part refute, contradict, or call into question any

claims or defenses raised by any party to this Action.

56. All documents provided to You by any non-party concerning any of the claims and

defenses advanced by the parties in this Action, or the facts underlying such claims and/or

defenses.

57. All expert reports that Plaintiff intends to rely on or utilize in this Action.

58. All expert reports prepared in connection with this Action.

Dated: July 28, 2023

FRYMAN PC

By: /s David Yeger
David Fryman, Esq.
dfryman@frymanpc.com
David Yeger, Esq.
dyeger@frymanpc.com
10 E. Merrick Rd., Ste. 305
Valley Stream, New York 11580
(516) 714-4147
Attorney for Defendant

To: John G. Horn, Esq.
jhorn@hselaw.com
Lauren R. Mendolera, Esq.
lmendolera@hselaw.com
Harter Secrest & Emery LLP
50 Fountain Plaza, Ste. 1000
Buffalo, NY 14202
(716) 844-3728
Attorneys for Plaintiff

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Case Info

Judge

Emilio Colaiacovo Track Judge’s New Case

Case No.

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Document Filed Date

July 28, 2023

Case Filing Date

January 20, 2023

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Party Notice: F James Mcguire v. The Mcguire Group

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