Preview
FILED
11/7/2022 4:53 PM
FELICIA PITRE
DISTRICT CLERK
DALLAS CO., TEXAS
Jenifer Trujillo DEPUTY
CAUSE NO. DC-21-11406
MILTON 635 GRAVOIS ROAD LLC, 635 IN THE DISTRICT COURT
GRAVOIS ROAD LEASING LLC, and 635
GRAVOIS ROAD REAL ESTATE LLC,
Plaintiffs,
v. 44TH JUDICIAL DISTRICT
TRT HOLDINGS, INC.,
RBR REAL ESTATE HOLDINGS, LLC,
BRIAN ZELMAN, and ADAM ZEITSIFF,
Defendants. DALLAS COUNTY, TEXAS
PLAINTIFFS' MOTION TO COMPEL DISCOVERY FROM
NON-PARTY RSG GROUP USA, INC.
Pursuant to Rules 176, 193.3, and 205 of the Texas Rules of Civil Procedure, Plaintiffs Milton
635 Gravois Road LLC, 635 Gravois Road Leasing LLC, and 635 Gravois Road Real Estate LLC
(collectively, "Plaintiffs") file this Motion to Compel Discovery ("Motion") from Non-Party RSG
Group USA, Ine. ("RSG"), and respectfully show the Court as follows:
I. INTRODUCTION
Non-Party RSG acquired certain assets of Gold's Gym International, its parent GGI Holdings,
and their affiliates, through their consolidated Chapter 11 Bankruptcy, which include infer alia a
significant portion of documents and electronic records (including emails) that are highly relevant and
discoverable in this litigation against Defendants. By virtue of its bankruptcy acquisition,’ Non-Party
RSG currently holds sole custody, control, and access to certain tesponsive custodians! emails for
' See Case No. 20-31318-hdh11, In Re: GGI Holdings, LLG, et al., in the United States Bankruptcy Court for the Northern
District of Texas, Dallas Division, ECF Doc. No. 428 (filed 7/30/20), "ORDER (1) APPROVING THE SALE OF
ASSETS TO THE SUCCESSFUL BIDDER FREE ID CLEAR OF LIENS, CLAIMS AND ENCUMBRANCES,
(If) APPROVING THE ASSET PURCHASE AGRI ENT, (H) AUTHORIZING THE DEBTORS TO ASSUME.
AND ASSIGN EXECUTORY CONTRACTS AND UNEXPIRED LEASES IN CONNECTION WITH THE SALE,
AND (IV) GRANTING RELATED RELIEF," identifying RSG Group USA, Inc. as the "Purchaset" (p. 2).
PLAINTIFFS’ MOTION TO COMPEL DISCOVERY FROM NON-PARTY RSG - Page 1
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relevant fact witnesses that are mutually identified in this case by Plaintiffs and Defendants, including
specifically a named Defendant Adam Zeitsiff, and Mr. Paul Early. These custodians had
"@goldsgym.com" email addresses for which Non-Party RSG now owns and controls those email
servers and databases. To Plaintiffs' knowledge, Non-Party RSG has no other affiliation with Plaintiffs
ot Defendants; rather, simply because it independently acquired Gold's Gym International's assets
(including its email servers and databases), RSG has highly relevant and discoverable documents and
records that neither Plaintiffs nor Defendants can reasonably obtain from any other source except
RSG.
Plaintiffs have diligently worked with Non-Party RSG and its counsel to identify, target, and
search with reasonable particularity the responsive documents and electronic records sought by
Plaintiffs' Subpoena Duces Tecum to RSG served on November 2, 2021 (the "Subpoena"). Together,
respective counsel for Plaintiffs and RSG have communicated in numerous emails and conference
calls since December 2021 and throughout this year to identify, test, and narrow search terms to
capture responsive documents and records. As detailed in this Motion, Plaintiffs and RSG have
cooperatively addressed certain of RSG's Objections to the Subpoena, served on January 3, 2022
("RSG's Objections"), and identified with reasonable particularity the specific custodians of records
for categories of responsive documents and records sought by Plaintiffs.
After engaging in numerous conferrals, RSG's counsel most recently updated Plaintiffs'
counsel regarding its application of narrowed search terms for emails searches performed by RSG, for
custodians of records controlled by RSG that are critical to Plaintiffs' claims against Defendants. From
a volume of approximately 20,000 potentially responsive documents and emails yielded by the
narrowed search terms, RSG produced only 46 additional responsive documents after months of
conferrals and has not produced a written privilege log identifying materials withheld on any applicable
privilege. More critically, a significant portion of documents responsive to Plaintiffs! Subpoena are
PLAINTIFFS’ MOTION TO COMPEL DISCOVERY FROM NON-PARTY RSG - Page 2
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still missing from RSG's production, despite its agreements and obligations to locate and produce the
same. Accordingly, in light of Plaintiffs’ obligations in this case to diligently obtain discovery during
the discovery period, and for good cause demonstrated in this Motion, Plaintiffs request that the Court
order Non-Patty RSG to produce responsive documents and records within 21 days of issuing an
Order Compelling Discovery.
II. BACKGROUND
A. Factual Background
As detailed in Plaintiffs' Second Amended Petition, filed May 13, 2022,? Defendant TRT is a
ptivate holding company based in Dallas, Texas, that owns, holds, controls, and/or operates numerous
business interests and investments, including i#/r alia the luxury hotel chain Omni Hotels & Resorts
and, prior to the events at issue herein, the popular gym franchise Gold's Gym International and its
affiliates. Defendant RBR is an affiliate of Defendant TRT, and was the real estate holding company
that owns and/or holds certain real estate assets affiliated with TRT, including its then existing
interests in certain Gold's Gym locations.
In the beginning of 2018, Defendants TRT and RBR were marketing for sale the real estate
development containing a long-term lease of a Gold's Gym location located at 635 Gravois Road,
Fenton, Missouri 63026 (the "Premises"). The Premises were owned by Defendant RBR, with an
existing long-term lease to a Gold's Gym tenant, Gold's St. Louis, LLC ("Tenant"), and listed by
Defendants' brokers on behalf of RBR, as seller. Tenant was an affiliate of TRT and RBR.
In May, 2019, RBR and Leeton Real Estate, Inc. ("Leeton"), an affiliate of Plaintiffs and
ultimately the manager of Gravois LLC, entered into an Agreement of Purchase and Sale ("PSA") with
a due diligence period and no earnest money at risk. The PSA lapsed and negotiations between
2 For the sake of efficiency, Plaintiffs respectfully incorporate the factual allegations and supporting evidence included
therein and recite only a limited portion of the facts relevant to this Motion below.
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Defendants and the principals of Plaintiffs continued, including due diligence regarding specific
information and details regarding the Premises and the Tenant.
In order to further entice Plaintiffs' principals! interest and induce the purchase and acquisition
of the Premises, Defendants represented to Plaintiffs’ principals that Gold's Gym International, Inc.
was a "solid company" that was "a fiscally well-managed company" and could "assure financial
performance" of the Premises being marketed for sale anchored by the lease to Tenant. In furtherance
of Defendants’ representations regarding the Premises' value and as an inducement to Plaintiffs’
principals, Defendants agreed that upon Plaintiffs' re-commitment to purchase the Premises after the
lapsing of the PSA, Defendants TRT and RBR would cause Tenant to agree to a six-year extension of
the lease with a rent increase above market, thereby securing the future income stream which anchored
the value of the Premises (the "Lease Extension").
Consequently, in reliance on Defendants' representations regarding the existing and future
income stream via the lease and the Lease Extension from the Tenant and the assurance of existing
solid business and operational performance by the Tenant at the Premises, Plaintiffs’ affiliate Leeton
on behalf of Plaintiffs entered into a First Amendment to Agreement of Purchase and Sale ("APSA")
on or about September 27, 2019, with Defendant RBR, for the purchase and sale of the Premises.
Plaintiff Gravois Leasing received rent payments for the Premises for approximately four (4)
months, until approximately May 2020 (April 2020 was the last rent payment received). Neither Gold's
Gym International, Inc. nor Gold's St. Louis, LLC ever performed under the terms of the Lease
Extension. Rather, as detailed in Plaintiffs! Second Amended Petition, on or about May 4, 2020,
Gold's Gym International, Inc. and its affiliates and subsidiaries, including Gold's St. Louis, LLC [the
Tenant], as Debtors, filed for Chapter 11 bankruptcy in the United States Bankruptcy Court for the
Northern District of Texas, Dallas Division (the "Bankruptcy Proceeding").
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As part of the Bankruptcy Proceeding, Debtors' representative, Mr. Paul Early, testified under
oath at the first-day hearings that several locations in the St. Louis market, including the Premises in
Fenton, MO, purchased by Plaintiffs, were among those locations for which leases would be rejected
due to inier alia "the lack of profitability" and/or "lack of enough consumer demographics to support
a profitable gym after rents that [were being paid] . . . at or above market." Mr. Early testified that the
Debtor had attempted to market the St. Louis locations for sale, including the Tenant, and stated that
"the level of unprofitability there really made it unsellable" due to "the decline of the revenues over
the last couple years." In fact, Mr. Early testified that "pre the pandemic" his team "already had a list
of gyms identified which were unprofitable," which included the Tenant in Fenton, MO. Mr. Early's
testimony in the Bankruptcy Proceedings, and his underlying analyses of unprofitable gyms that
included the Premises purchased by Plaintiffs, directly conflicts with and exposes Defendants' express
misrepresentations that the Tenant was a solid-performing location and its business was capable of
sustaining the Tenant's performance under the lease (and even supporting extended terms and
increased above-market rents via the Lease Extension).
Through its consolidated Chapter 11 Bankruptcy, Gold's Gym International, Inc. rejected the
Lease Extension with the Tenant, among others, and sold its assets through Bankruptcy Court Order
to Non-Party RSG. Through numerous conferrals concerning the custodians of records in this case,
Plaintiffs and RSG have mutually identified employees of Defendants TRT and/or RBR,* and those
who were Gold's Gym International employ: 's that Non-Party RSG now holds sole custody, control,
and access to the records of those custodians:
3 Plaintiffs have sought relevant discovery directly from Defendants TRT, RBR, Zelman, and Zeitsiff, on the same subject
matters and identifiable sources of responsive documents and information sought to be compelled from Non-Party RSG.
Defendants’ counsel has conferred with Plaintiffs' counsel separately on other discovery matters, and has agreed that
certain relevant fact witnesses identified in initial disclosures—including specifically Adam Zeitsiff and Paul Early, mong
others discussed below—were Gold's employees for which Non-Party RSG, by virtue of its bankruptcy acquisition,
now holds sole custody, control, and acc to the records of those custodians.
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TRT/RBR (5 custodians): Brian Zelman (individual Defendant); Blake Rowling;
Robert Rowling; Paul Jorge; Janett O'Dwyer
Gold's Gym (6 custodians): Adam Zeitsiff (individual Defendant); Paul Early; Kerry
Smalley; Brandon Bean; Ian Dunhill; Cliff Fielden
B. Procedural Background
On or about November 2, 2021, Plaintiffs served the Subpoena to Non-Party RSG. A true
and correct and complete copy of the Notice of Subpoena and Subpoena to RSG is attached hereto
as Exhibit 1.
On or about December 2, 2021, counsel for RSG made contact with Plaintiffs’ counsel, and
began several conferrals to understand the scope of the Subpoena. A true and correct copy of
correspondence between counsel for RSG and Plaintiffs' counsel during this timeframe is attached
hereto as Exhibit 2.
On or about January 3, 2022, RSG served its Objections and Response to the Subpoena,
true and correct and complete copy of which is attached hereto as Exhibit 3. RSG's Objections and
Response did not include any accompanying responsive document production, but RSG otherwise
responded that it would produce responsive documents to most of Plaintiffs’ Requests.
On or about January 11, 2022, and continuing throughout February, March, and April 2022,
Plaintiffs' counsel and counsel for RSG conferred in email correspondence and telephonic conferrals
regarding certain of RSG's Objections, and worked together to identify and narrow the relevant
custodians of records in RSG's possession, custody, and control. A true and correct copy of
correspondence between counsel for RSG and Plaintiffs' counsel during this timeframe is attached
hereto as Exhibit 4.
On or about April 18, 2022, and continuing throughout May, June, July, and August 2022,
Plaintiffs' counsel and counsel for RSG conferred in email correspondence and telephonic conferrals
regarding RSG's applications of Plaintiffs' proposed search terms to the relevant custodians in RSG's
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custody and control, and worked together to revise and narrow those seatch terms with reasonable
particularity. On or about June 24, 2022, counsel for RSG produced a small sub-set of documents (6)
responsive to the Subpoena. On or about July 22, 2022, counsel for RSG advised Plaintiffs' counsel
that it had approximately 20,000 documents and records generated from the search terms across six
(6) Gold's Gym custodians, that are potentially responsive to the Subpoena. On or about July 25,
2022, Plaintiffs’ counsel (at Plaintiffs' expense) coordinated the set-up of a document review database
from a web-based review platform, Reveal, in order for counsel for RSG to review and produce
responsive documents yielded by the search results. A true and correct copy of correspondence
between counsel for RSG and Plaintiffs' counsel during this timeframe is attached hereto as Exhibit
2.5
On or about August 17, 2022, Plaintiffs' counsel and counsel for RSG held a lengthy
telephonic conferral to discuss the progress of counsel for RSG's review of responsive documents
yielded by the search results, which RSG's counsel conceded had not yet been completed and had
stalled in progress due to competing deadlines in other matters and unfamiliarity with the Reveal
platform. Plaintiffs' counsel also conferred on the status of RSG's supplemental production of other
responsive documents it agreed to produce in its Response to the Subpoena, which include:
Documents, emails, or other written records of Defendant TRT's decision,
communications, and/or instruction to Gold's Gym International and its employees,
including specifically Mr. Paul Early, regarding the Chapter 11 Bankruptcy filing; and
Paul Early's analyses of the "list of gyms identified as unprofitable" with "a decline of
revenues over the last couple years" that supported his testimony in the Bankruptcy
Proceeding.
A true and correct copy of correspondence between counsel for RSG and Plaintiffs' counsel
during this timeframe is attached hereto as Exhibit 6.
On or about October 11, 2022, RSG supplemented its existing production with an additional
forty six (46) documents responsive to Plaintiffs' Subpoena, and held a conferral call with Plaintiffs!
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counsel on October 13, 2022, regarding the deficiencies remaining in RSG's responsive productions.
Plaintiffs' counsel and RSG's counsel discussed RSG's feedback that certain key words applied in the
email searches had turned out to be overbroad, and conferred on whether the search parameters could
be more fine-tuned; i.e. over a shorter time period, with more specific key words, and/or a focus on
specific custodians. On or about October 17, 2022, Plaintiffs' counsel sent correspondence to RSG's
counsel about proposed supplemental searches to identify relevant documents associated with two
specific custodians: Defendant Adam Zeitsiff, and Paul Early. In the October 17, 2022
correspondence to RSG's counsel, Plaintiffs' counsel demonstrated the direct relevance of specific
requests posed to RSG for Mr. Zeitsiff and Mr. Early; namely, Mr. Zeitsiff's involvement with Gold's
Gym's sales of memberships in the St. Louis market in late 2019-early 2020, and Mr. Early's analysis
of profitable and non-profitable stores that comprised his testimony in GGI's bankruptcy, excerpted
as follows:
"Pre the pandemic, part of what my team was looking at is the overall real estate
portfolio. And what I like to do is do a full analysis of every gym, the profitability, the
remaining lease term, and categorize that one into turnaround operation of try to get
out of because it's unprofitable. So leading into this, we already had a list of gyms
identified which were unprofitable which we were looking to figure out a lease
termination for or a rent reduction."
On October 28, 2022, after apparent reluctance from RSG to agree to parameters of
supplemental responsive searches, Plaintiffs' counsel pointed out the specific requests in the Subpoena
for which RSG has still not provided responsive documents that are known to exist:
REQUE NO. 5: Any and all communications, correspondence, documents, agreements,
notes, emails and memoranda prepared by, for or in relation to the analysis performed by or
in conjunction with Paul Early or his team regarding the profitability and/or demographics
supporting the business of the Tenant or other Gold's Gym fitness centers and any resulting
analyses regarding or leading to the rejection of real estate leases, including but not limited to
the Shopping Center Lease.
REQUEST NO. 7: Any and all communications, documents, correspondence, agreements,
notes, emails and memoranda relating to any efforts to market or sell the Tenant or the
Tenant's business or assets.
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True and correct copies of correspondence between counsel for RSG and Plaintiffs' counsel
during this timeframe (October), and excerpts of the emails’ non-confidential attachments, are
attached hereto as Exhibit 7. These conferrals also reflect RSG's counsel's assertions of "core
privilege" with respect to all of the materials withheld for "@goldsgym.com" custodians from RSG's
responsive productions to Plaintiffs! Subpoena.
As of the date of filing this Motion, despite several follow-ups with counsel for RSG, Plaintiffs
and their counsel have not received any supplemental responsive production from RSG, nor any
substantive update from counsel for RSG about whether it will agree to perform the supplemental
searches to address RSG's deficient document production. In sum, Plaintiffs do not have a date
certain that RSG will comply with the Subpoena and produce all responsive documents in its
possession, custody, and control, or produce a written privilege log for materials withheld that require
the same.
III. ARGUMENT & AUTHORITY, AND DISCOVERY AT ISSUE
The purpose of discovery is to seek the truth, so that disputes may be decided by what the
facts reveal, not by what facts are concealed. Axelson, Inc. v. Melthany, 798 S.W.2d 550, 555 (Tex. 1990).
The scope of discovery is broad, such that discovery may be obtained about any issue relevant to the
subject matter of the case. TEX. R. Civ. P. 192.3(a). A party may obtain discovery regarding any matter
that is not privileged and is relevant to the subject matter of the pending action, whether it relates to
the claim or defense of the party seeking discovery or the claim or defense of any other party. TEX.
R. Clv. P. 192.3(a). In other words, information is discoverable so long as it appears to be "reasonably
calculated to lead to the discovery of admissible evidence." The documents requested are considered
relevant if they tend to make the existence of a fact that is of consequence to the determination of the
action more or less probable than it would be without the information. Id; TEX. R. Evi. 401.
As against a non-party, Plaintiffs may compel discovery from a non-party like RSG by serving
PLAINTIFFS’ MOTION TO COMPEL DISCOVERY FROM NON-PARTY RSG - Page 9
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a Subpoena compelling production of documents, with required notice that identifies each item and
category with reasonable particularity. TEX. R. Civ. P. 205.1; 205.3(b). In this case, highly material,
relevant, and discoverable documents and communications, including specifically emails between the
named Defendants and former employees of Gold's Gym International, appear to exist but have not
yet been produced as part of RSG's responsive document productions to date. Additionally, RSG
itself has conceded to the relevance and discoverability of certain documents and records sought by
Plaintiffs, and has agreed in its Response to the Subpoena to produce responsive documents. These
relevant subject matters—including specifically Mr. Zeitsiff's involvement with Gold's Gym's sales of
memberships in the St. Louis market in late 2019-early 2020, and Mr. Early's analysis of profitable and
non-profitable stores—are demonstrably proportional to the needs of the case and the amounts in
controversy. Moreover, considering that Non-Party RSG admittedly has sole custody, control, and
possession of the emails and documents needed by both Plaintiffs and Defendants to resolve the case,
there is a particularized need for compelling RSG's compliance with the Subpoena, since the relevant
documents and emails are not available from any other source.
A. Requests for Production.
Non-Party RSG is presently in the unique role of acquiring GGI's assets and retaining sole
custody, control, and access to emails and documents for certain "@goldsgym.com" custodians that
are discoverable in this case. Plaintiffs presently seek the following documents, records, and
information (including emails) from Non-Party RSG, for which RSG currently holds sole custody,
control, and access to:
1 Responsive documents and records for proposed supplemental searches specifically for
custodians Adam Zeitsiff and Paul Early, based on deficiencies in RSG's existing document
productions to date and failure to produce responsive documents from the prior
approximately 20,000 documents resulting from prior searches;
a. From Exhibit 7, on October 17, 2022, Plaintiff proposed searching Paul Early as a
custodian, from October 1, 2019 through April 15, 2019, for the search terms [profit!
OR portfolio! OR turnaround!], based on Mr. Early's testimony in GGI's Bankruptcy.
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Plaintiff proposed searching Adam Zeitsiff as a custodian, from October 1, 2019
through April 15, 2019, for only documents and emails exchanged with Mr. Early, for
the same search terms [profit! OR portfolio! OR turnaround!].
Documents, emails, or other written records of Defendant TR’ decision, communications,
and/or instruction to Gold's Gym International and its employees, including specifically Mr.
Paul Early, regarding the Chapter 11 Bankruptcy filing;
Paul Early's analyses of the "list of gyms identified as unprofitable" with "a decline of revenues
over the last couple years" that supported his testimony in the Bankruptcy Proceeding and are
responsive to Subpoena Request No. 5; and
Any and all communications, documents, correspondence, agreements, notes, emails and
memoranda relating to any efforts to market or sell the Tenant or the Tenant's business or
assets, including specifically Mr. Zeitsiff's contact to Club Fitness beginning in December of
2019 regarding sales of membership and/or exiting the St. Louis market, which are responsive
to Subpoena Request No. 7.
Despite Plaintiffs and their counsel sincerely understanding the extent of highly relevant
discovery sought from Non-Party RSG, and the competing obligations of RSG's counsel that has
prevented RSG from performing additional searches and supplementing its responsive production to
the Subpoena, nevertheless, Plaintiffs move this Court for an Order Compelling Discovery from RSG
simply as a means to find finality in receiving responsive documents from RSG within the discovery
period applicable to this case.
B. Request for a Written Privilege Log.
Plaintiffs’ Subpoena and subsequent correspondences with RSG's counsel have requested a
written privilege log from RSG's counsel for responsive materials withheld from RSG's production
on the basis of any applicable privilege. To date, as reflected in Exhibit 7, RSG's counsel has not
produced a privilege log or other written response regarding withheld materials, and has asserted that
all materials withheld on the basis of privilege are "core privilege" materials that do not require a
privilege log.
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Rule 193.3(¢) offers an exemption to the obligation to produce a written response identifying
and describing materials withheld on the basis of specific privilege(s), in the limited circumstance
where the privileged communication was:
1) created or made from the point at which a party consults a lawyer with a view to
obtaining professional legal services from the lawyer in the prosecution or defense of
a specific claim in the litigation in which discovery is requested, and
2) concerning the litigation in which the discovery is requested.
Tex. R. Cry. P. 193.3(c)(1)-(2) (emphasis added). Plaintiffs! Subpoena and all subsequent
conferrals and agreements for targeted search parameters for RSG's searches have all identified the
relevant time petiod beginning in 2018 (when Plaintiffs first began dealing with Defendants) through
the filing of GGI's Bankruptcy in mid-2020. This lawsuit was not filed until August 24, 2021, against
any Defendant, including the "@goldsgym.com" custodian specifically at issue in RSG's deficient
productions, Mr. Adam Zeitstiff. Consequently, Plaintiffs have sought additional clarification from
Non-Party RSG, without response, as to how searches of Mr. Zeitsiff's and other "@goldsgym.com"
custodians during pre-litigation timeframes could yield any "core privilege" materials for which a
privilege log is not required. Accordingly, Plaintiffs respectfully request that the Court compel RSG
to comply with the written privilege log requirements of Rule 193.3, for any applicable privileges for
materials withheld in response to the Subpoena.
IV. CONCLUSION
For the foregoing reasons, Plaintiffs respectfully pray that the Court grant this Motion to
Compel, order Non-Party RSG to produce responsive documents and records, and produce a written
privilege log, within 21 days of issuing an Order Compelling Discovery, and grant Plaintiffs such other
and further relief to which they may be justly entitled.
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Respectfully submitted,
KANE RUSSELL COLEMAN LOGAN P.C.
By: s/ Robert N. LeMay
Robert N. LeMay
State Bar No. 12188750
tlemay@krcl.com
Jaime M. DeWees
State Bar No. 24097593
jdewees@krcl.com
Brandon Keaton
State Bar No. 24128456
bkeaton@krcl.com
901 Main Street
Suite 5200
Dallas, Texas 75202
Telephone (214) 777-4254
Facsimile (214) 777-4299
ATTORNEYS FOR PLAINTIFFS
CERTIFICATE OF CONFERENCE
Counsel for Plaintiffs and counsel for Non-Party RSG have discussed the issues outlined in
this motion but have been unable to reach an agreement to the items addressed herein, specifically
whether RSG will perform supplemental searches as requested, and the date certain on which RSG
will comply with the Subpoena and produce all responsive documents. Consequently, these issues are
presented to the Court for determination.
S Robert N. LeMay
Robert N. LeMay
PLAINTIFFS’ MOTION TO COMPEL DISCOVERY FROM NON-PARTY RSG - Page 13
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CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the above and foregoing document was served
on all known counsel of record in this cause in accordance with the Texas Rules of Civil Procedure
on November 7, 2022 as follows:
VIA EMAIL:
Susan Hannagan
Gold's Gym, Senior Counsel
5420 LYNDON B. JOHNSON FREEWAY, SUITE 700
DALLAS, TX 75240
susan. hannagan@goldsgym.com
ATTORNEYS FOR NON-PARTY RSG GROUP USA, INC.
VIA EFILE
Elliot Strader
Xakema Henderson
AKERMAN LLP
2001 Ross Avenue, Suite 3600
Dallas, Tex: 5201
e ot.strader@al mai
xakema.hendetson@akerman.com
ATTORNEYS FOR DEFENDANTS
sl Robert N. LeMay
Robert N. LeMay
PLAINTIFFS’ MOTION TO COMPEL DISCOVERY FROM NON-PARTY RSG - Page 14
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FILED
11/2/2021 3:21 PM
FELICIA PITRE
DISTRICT CLERK
DALLAS CO., TEXAS
Christi Underwood DEPUTY
CAUSE NO. DC-21-11406
MILTON 635 GRAVOIS ROAD LLC, IN THE DISTRICT COURT
635 GRAVOIS ROAD LEASING LLC, and
635 GRAVOIS ROAD REAL ESTATE LLC,
Plaintiffs,
v. 44TH JUDICIAL DISTRICT
TRT HOLDINGS, INC.,
RBR REAL ESTATE HOLDINGS, LLC,
BRIAN ZELMAN, and ADAM ZEITSIFF,
Defendants. DALLAS COUNTY, TEXAS
NOTICE OF SUBPOENA DUCES TECUM TO NON-PARTY RSG GROUP USA, INC.
TO: CUSTODIAN OF RECORDS FOR RSG GROUP USA, INC., C/O PARACORP
INCORPORATED, 14001 W. HWY 29, SUITE 102, LIBERTY HILL, TEXAS 78642.
PLEASE TAKE NOTICE that, pursuant to Rules 200 & 205 of the Texas Rules of Civil
Procedute, Plaintiffs, MILTON 635 GRAVOIS ROAD LLC, 635 GRAVOIS ROAD LEASING
LLC, and 635 GRAVOIS ROAD REAL ESTATE LLC, serve this notice of intention to serve a
Subpoena Duces Tecum, attached as Exhibit 1, on non-party RSG Group USA, Inc.
The Subpoena Duces Tecum commands the production of documents and tangible items
identified in the attached Exhibit A to the Subpoena Duces Tecum twenty (20) days from the
service of the Subpoena Duces Tecum, at 10 a.m., electronically to Robert N. LeMay, Esq.,
rlemay@krcl.com, or, alternatively, at the offices of Special Delivery c/o Scott Thomas, 812 W. 11"
Street, Suite 207, Austin, TX 78701
ISSUED this 2nd day of November, 2021.
NOTICE OF SUBPOENA DUCES TECUM TO NON-PaRTY RSG Group USA, INC. - Page 1 of 3
8859104 v1 (72208.00006.000)
EXHIBIT 1 - Page 1 of 17
Respectfully submitted,
KANE RUSSELL COLEMAN LOGAN PC
By: /s/ Robert N. LeMay
Robert N. LeMay
State Bar No. 12188750
rlemay@krcl.com
Jaime M. DeWees
State Bar No. 24097593
Stephen A. Cord
State Bar No. 24105741
scord| krel.com
901 Main St., Ste. 5200
Dallas, Texas 75202
Telephone: (214) 777-4200
Facsimile: (214) 777-4299
CERTIFICATE OF SERVICE
Thereby certify by my signature above that on November 2, 2021, a true and correct copy of
the foregoing document was setved on the following counsel of record via the Court's electronic
case filing system:
VIA HAND DELIVERY
RSG Group USA, Inc.
c/o Paracorp Incorporated
14001 W. Hwy 29, Suite 102
Liberty Hill, Texas 78642
VIA EFILE
Elliot Strader
:
E 43 lliot.strader@akerman.com
Xakema Henderson
Xakema.henderson@akerman.com
AKERMAN LLP
2001 Ross Avenue, Suite 3600
Dallas, TX 75201
Attorneys for Defendants
/s/ Robert N. LeMay
Robert N. LeMay
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EXHIBIT 1
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CAUSE NO. DC-21-11406
MILTON 635 GRAVOIS ROAD LLC, IN THE DISTRICT COURT
635 GRAVOIS ROAD LEASING LLC, and
635 GRAVOIS ROAD REAL ESTATE LLC,
Plaintiffs,
v. 44TH JUDICIAL DISTRICT
TRT HOLDINGS, INC.,
RBR REAL ESTATE HOLDINGS, LLC,
BRIAN ZELMAN, and ADAM ZEITSIFF,
Defendants. DALLAS COUNTY, TEXAS
SUBPOENA DUCES TECUM TO NON-PARTY RSG GROUP USA, INC.
THE STATE OF TEXAS
ISSUED ON NOVEMBER 15, 2021
TO CUSTODIAN OF RECORDS FOR: RSG GROUP USA, INC.
C/O PARACOPR INCORPORATED
14001 W. HWY 29, SUITE 102
LIBERTY HILL, TEXAS 78642
TO ANY SHERIFF OR CONSTABLE OF THE STATE OF TEXAS OR OTHER
PERSON AUTHORIZED TO SERVE AND EXECUTE SUBPOENAS AS PROVIDED IN
TEXAS RULE OF CIVIL PROCEDURE 176.
YOU ARE HEREBY COMMANDED to produce and permit inspection and copying of
the inal or an exact duplicate of the original of the documents or tangible things described in
Exhibit A, attached hereto, that are in your possession, custody, or control on or before December
6, 2021. These documents shall be provided for inspection and/or produced electronically to
Robert N. LeMay, Esq. at rlemay@krcl.com, or, alternatively, at the offices of Special Delivery c/o
Scott Thomas, 812 W. 11" Street, Suite 207, Austin, TX 78701.
Pursuant to Texas Civil Practice and Remedies Code §22.004, payment in the amount of
$1.00 is also included with this subpoena. Additional payment for the reasonable costs of
reproducing these documents will be paid at the time of production.
FAILURE BY ANY PERSON WITHOUT ADEQUATE EXCUSE TO OBEY A
SUBPOENA SERVED UPON THAT PERSON MAY BE DEEMED IN 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.
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This subpoena was issued at the request of Plaintiffs whose attorney of record is:
Robert N. LeMay
State Bar No. 12188750
rlemay@krcl.com
901 Main St, Ste. 5200
Dallas, Texas 75202
Telephone: (214) 777-4200
Facsimile: (214) 777-4299
/s/ Robert N. LeMay
Robert N. LeMay
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OFFICER’S RETURN
Thereby state that on this day of November, 2021, I delivered a true and correct copy
hereof, along with all fees required by law, to the within named witness by serving
Returned this day of November, 2021.
Officer’s Signature
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EXHIBIT A
I DEFINITIONS
1 "You", "Your" or "RSG" means RSG Group USA, Inc. its present and former
employees, attorneys, representatives, parents, subsidiaries and all other persons or entities contolled
by or acting on its behalf.
2. "You," "Your," "Defendant" or "TRT Holdings" means Defendant TRT Holdings,
Inc., its present and former employees, attorneys, representatives, parents, subsidiaries and all other
persons or entities controlled by or acting on its behalf.
3 "Gravois LLC" means Plaintiff Milton 635 Gravois Road LLC, its present and
former employees, attorneys, representatives, parents, subsidiaries and all other persons or entities
controlled by or acting on its behalf.
4. "635 Gravois Road Leasing" means Plaintiff 635 Gravois Road Leasing LLC, its
present and former employees, attorneys, representatives, parents, subsidiaries and all other persons
or entities controlled by or acting on its behalf.
a
"635 Gravois Road RE" means 635 Gravois Road Real Estate LLC, its present and
former employees, attorneys, representatives, parents, subsidiaries and all other persons or entities
controlled by or acting on its behalf.
6. "RBR Holdings" means RBR Real Estate Holdings, LLC, its present and former
employees, attorneys, representatives, parents, subsidiaries and all other persons or entities
controlled by or acting on its behalf.
7
"Zelman" means Brian Zelman, his present and former employees, attorneys,
representatives, parents, subsidiaries and all other persons or entities controlled by or acting on his
behalf.
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8 "Zeitsiff' means Adam Zeitsiff, his present and former employees, attorneys,
representatives, parents, subsidiaries and all other persons or entities controlled by or acting on his
behalf.
9 "Plaintiffs" means Gravois LLC, 635 Gravois Road Leasing, and 635 Gravois Road
RE, including, but not limited to, their brokers, affiliates, representatives, agents, prinicpals or
attorneys, including but not limited to Leeton Real Estate, Inc., Mark Sher, Michael Shabsels, Mark
Graham or Mark Cohen.
10. "Defendants" means TRI Holdings, RBR RE Holdings, Zelman, and Zeitsiff,
including, but not limited to, their brokers, affiliates, representatives, agents or attorneys.
11. "Tenant" means Gold's St. Louis, LLC, its present and former employees, attorneys,
representatives, parents, subsidiaries and all other persons or entities controlled by or acting on its
behalf.
12. "PSA" means the Agreement of Purchase and Sale by and between Leeton Real
Estate, Inc. and RBR RE Holdings.
ot "Amendment" means any and all amendments to the PSA, as defined herein.
14. "Lease Agreement" means that lease agreement dated July 31, 2006 by and between
Gold's St. Louis, LLC and Scannell Properties #61, LLC.
15. "Shopping Center Lease" means the Amended and Restated Shopping Center Lease
agreement between RBR RE Holdings and Golds Gym dated August 31, 2018 and amended in
November of 2019.
16. "Premises" means 635 Gravois Road, Fenton, Missouri.
ale "Assignment and Assumption" means that Assignment and Assumption of Leases
dated November 26, 2019 by and between RBR RE Holdings and Gravois, LLC.
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18. "Bankruptcy" means the Bankruptcy filed under Case No. 20-31318-hdh in the
United States Bankruptcy Court in the Northern District of Texas by Gold's Gym.
19. "Broker" means Aaron Johnson, including, but not limited to, his affiliates,
representatives, agents, attorneys or principals, including but not limited to, Holliday Fenoglio
Fowler L.P. or Jones, Lang, LaSalle Incorporated or any of their affiliates.
20. "Gold's Gym" means Gold's Gym International, Inc., its present and former
employees, attorneys, representatives, parents, subsidiaries and all other persons or entities
controlled by or acting in its behalf.
21. "Document" means the originals and each non-identical copy or reproduction of any
written or recorded matter in your possession, custody or control, or the custody or control of your
servants, employees, attorneys or other agents or any other person or entity acting on your behalf --
whether printed, recorded, reproduced by any process, or written or produced by hand. This
definition includes all handwritten, typewritten, printed, photocopied, photographic or recorded
matter, and includes pictures, photographs, diagrams, sound recordings, films, tapes, and
information stored in, or accessible through, computer or other information storage or retrieval
systems, including emails, text messages and instant messages, together with the codes and/or
programming instructions and other materials necessary to understand and use such systems.
22. "Relating to" means embodying, pertaining, concerning, involving, constituting,
commenting upon, comprising, reflecting, discussing, evidencing, mentioning, referring to,
consisting of, responding to, supporting or controverting a contention, or having any logical or
factual connection whatsoever with the subject matter in question,
23% "Communications" means any contact or act by which any information is
transmitted or conveyed between two or more persons, and shall include, without limitation, written
contact by such means as letters, memoranda, telegrams, telexes, electronically transmitted messages,
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emails, text message, or by any Document, and any oral contact by such means as face to face
meetings or conversations and telephone conversations which are transcribed, notated or in any
other manner memorialized in written, typed or recorded form.
24. "Including" means "including but not limited to", and is not restrictive or limiting.
25. "Identify" or any form of that word as used herein in connection with a document
means to state:
@) the name, date and subject of the document;
) the type of document (¢.g,, letter, memorandum, note, report);
© the identity of the author and all recipients of the document;
@) the identity of the custodian or possessor of the document or a copy thereof;
and
© the location of the document or a copy thereof.
26. "Identify" or any form of that word as used herein with respect to a person, if the
person is an individual, means to state:
@) the name;
) the present employer, if known; and
© the present address and telephone number or, if unknown, the last known
address and telephone number and last known employer of such person.
27. "Identify" or any form of that word, as used herein with respect to a person, if the
person is a corporation, partnership or other legal entity, means to:
@) state the name;
) identify that state of legal formation and current existence;
identify all officers, directors, partners and/or principals; and
@) state the address of the entity's principal place of business.
SUBPOENA DUCES TECUM TO
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FILED 11/7/2022 4:53 PM FELICIA PITRE DISTRICT CLERK DALLAS CO., TEXAS Jenifer Trujillo DEPUTY CAUSE NO. DC-21-11406 MILTON 635 GRAVOIS ROAD LLC, 635 IN THE DISTRICT COURT GRAVOIS ROAD LEASING LLC, and 635 GRAVOIS ROAD REAL ESTATE LLC, Plaintiffs, v. 44TH JUDICIAL DISTRICT TRT HOLDINGS, INC., RBR REAL ESTATE HOLDINGS, LLC, BRIAN ZELMAN, and ADAM ZEITSIFF, Defendants. DALLAS COUNTY, TEXAS PLAINTIFFS' MOTION TO COMPEL DISCOVERY FROM NON-PARTY RSG GROUP USA, INC. Pursuant to Rules 176, 193.3, and 205 of the Texas Rules of Civil Procedure, Plaintiffs Milton 635 Gravois Road LLC, 635 Gravois Road Leasing LLC, and 635 Gravois Road Real Estate LLC (collectively, "Plaintiffs") file this Motion to Compel Discovery ("Motion") from Non-Party RSG Group USA, Ine. ("RSG"), and respectfully show the Court as follows: I. INTRODUCTION Non-Party RSG acquired certain assets of Gold's Gym International, its parent GGI Holdings, and their affiliates, through their consolidated Chapter 11 Bankruptcy, which include infer alia a significant portion of documents and electronic records (including emails) that are highly relevant and discoverable in this litigation against Defendants. By virtue of its bankruptcy acquisition,’ Non-Party RSG currently holds sole custody, control, and access to certain tesponsive custodians! emails for ' See Case No. 20-31318-hdh11, In Re: GGI Holdings, LLG, et al., in the United States Bankruptcy Court for the Northern District of Texas, Dallas Division, ECF Doc. No. 428 (filed 7/30/20), "ORDER (1) APPROVING THE SALE OF ASSETS TO THE SUCCESSFUL BIDDER FREE ID CLEAR OF LIENS, CLAIMS AND ENCUMBRANCES, (If) APPROVING THE ASSET PURCHASE AGRI ENT, (H) AUTHORIZING THE DEBTORS TO ASSUME. AND ASSIGN EXECUTORY CONTRACTS AND UNEXPIRED LEASES IN CONNECTION WITH THE SALE, AND (IV) GRANTING RELATED RELIEF," identifying RSG Group USA, Inc. as the "Purchaset" (p. 2). PLAINTIFFS’ MOTION TO COMPEL DISCOVERY FROM NON-PARTY RSG - Page 1 9564637 v3 (72208.00006.000) relevant fact witnesses that are mutually identified in this case by Plaintiffs and Defendants, including specifically a named Defendant Adam Zeitsiff, and Mr. Paul Early. These custodians had "@goldsgym.com" email addresses for which Non-Party RSG now owns and controls those email servers and databases. To Plaintiffs' knowledge, Non-Party RSG has no other affiliation with Plaintiffs ot Defendants; rather, simply because it independently acquired Gold's Gym International's assets (including its email servers and databases), RSG has highly relevant and discoverable documents and records that neither Plaintiffs nor Defendants can reasonably obtain from any other source except RSG. Plaintiffs have diligently worked with Non-Party RSG and its counsel to identify, target, and search with reasonable particularity the responsive documents and electronic records sought by Plaintiffs' Subpoena Duces Tecum to RSG served on November 2, 2021 (the "Subpoena"). Together, respective counsel for Plaintiffs and RSG have communicated in numerous emails and conference calls since December 2021 and throughout this year to identify, test, and narrow search terms to capture responsive documents and records. As detailed in this Motion, Plaintiffs and RSG have cooperatively addressed certain of RSG's Objections to the Subpoena, served on January 3, 2022 ("RSG's Objections"), and identified with reasonable particularity the specific custodians of records for categories of responsive documents and records sought by Plaintiffs. After engaging in numerous conferrals, RSG's counsel most recently updated Plaintiffs' counsel regarding its application of narrowed search terms for emails searches performed by RSG, for custodians of records controlled by RSG that are critical to Plaintiffs' claims against Defendants. From a volume of approximately 20,000 potentially responsive documents and emails yielded by the narrowed search terms, RSG produced only 46 additional responsive documents after months of conferrals and has not produced a written privilege log identifying materials withheld on any applicable privilege. More critically, a significant portion of documents responsive to Plaintiffs! Subpoena are PLAINTIFFS’ MOTION TO COMPEL DISCOVERY FROM NON-PARTY RSG - Page 2 9564637 v3 (72208.00006.000) still missing from RSG's production, despite its agreements and obligations to locate and produce the same. Accordingly, in light of Plaintiffs’ obligations in this case to diligently obtain discovery during the discovery period, and for good cause demonstrated in this Motion, Plaintiffs request that the Court order Non-Patty RSG to produce responsive documents and records within 21 days of issuing an Order Compelling Discovery. II. BACKGROUND A. Factual Background As detailed in Plaintiffs' Second Amended Petition, filed May 13, 2022,? Defendant TRT is a ptivate holding company based in Dallas, Texas, that owns, holds, controls, and/or operates numerous business interests and investments, including i#/r alia the luxury hotel chain Omni Hotels & Resorts and, prior to the events at issue herein, the popular gym franchise Gold's Gym International and its affiliates. Defendant RBR is an affiliate of Defendant TRT, and was the real estate holding company that owns and/or holds certain real estate assets affiliated with TRT, including its then existing interests in certain Gold's Gym locations. In the beginning of 2018, Defendants TRT and RBR were marketing for sale the real estate development containing a long-term lease of a Gold's Gym location located at 635 Gravois Road, Fenton, Missouri 63026 (the "Premises"). The Premises were owned by Defendant RBR, with an existing long-term lease to a Gold's Gym tenant, Gold's St. Louis, LLC ("Tenant"), and listed by Defendants' brokers on behalf of RBR, as seller. Tenant was an affiliate of TRT and RBR. In May, 2019, RBR and Leeton Real Estate, Inc. ("Leeton"), an affiliate of Plaintiffs and ultimately the manager of Gravois LLC, entered into an Agreement of Purchase and Sale ("PSA") with a due diligence period and no earnest money at risk. The PSA lapsed and negotiations between 2 For the sake of efficiency, Plaintiffs respectfully incorporate the factual allegations and supporting evidence included therein and recite only a limited portion of the facts relevant to this Motion below. PLAINTIFFS’ MOTION TO COMPEL DISCOVERY FROM NON-PARTY RSG - Page 3 9564637 v3 (72208.00006.000) Defendants and the principals of Plaintiffs continued, including due diligence regarding specific information and details regarding the Premises and the Tenant. In order to further entice Plaintiffs' principals! interest and induce the purchase and acquisition of the Premises, Defendants represented to Plaintiffs’ principals that Gold's Gym International, Inc. was a "solid company" that was "a fiscally well-managed company" and could "assure financial performance" of the Premises being marketed for sale anchored by the lease to Tenant. In furtherance of Defendants’ representations regarding the Premises' value and as an inducement to Plaintiffs’ principals, Defendants agreed that upon Plaintiffs' re-commitment to purchase the Premises after the lapsing of the PSA, Defendants TRT and RBR would cause Tenant to agree to a six-year extension of the lease with a rent increase above market, thereby securing the future income stream which anchored the value of the Premises (the "Lease Extension"). Consequently, in reliance on Defendants' representations regarding the existing and future income stream via the lease and the Lease Extension from the Tenant and the assurance of existing solid business and operational performance by the Tenant at the Premises, Plaintiffs’ affiliate Leeton on behalf of Plaintiffs entered into a First Amendment to Agreement of Purchase and Sale ("APSA") on or about September 27, 2019, with Defendant RBR, for the purchase and sale of the Premises. Plaintiff Gravois Leasing received rent payments for the Premises for approximately four (4) months, until approximately May 2020 (April 2020 was the last rent payment received). Neither Gold's Gym International, Inc. nor Gold's St. Louis, LLC ever performed under the terms of the Lease Extension. Rather, as detailed in Plaintiffs! Second Amended Petition, on or about May 4, 2020, Gold's Gym International, Inc. and its affiliates and subsidiaries, including Gold's St. Louis, LLC [the Tenant], as Debtors, filed for Chapter 11 bankruptcy in the United States Bankruptcy Court for the Northern District of Texas, Dallas Division (the "Bankruptcy Proceeding"). PLAINTIFFS’ MOTION TO COMPEL DISCOVERY FROM NON-PARTY RSG - Page 4 9564637 v3 (72208.00006.000) As part of the Bankruptcy Proceeding, Debtors' representative, Mr. Paul Early, testified under oath at the first-day hearings that several locations in the St. Louis market, including the Premises in Fenton, MO, purchased by Plaintiffs, were among those locations for which leases would be rejected due to inier alia "the lack of profitability" and/or "lack of enough consumer demographics to support a profitable gym after rents that [were being paid] . . . at or above market." Mr. Early testified that the Debtor had attempted to market the St. Louis locations for sale, including the Tenant, and stated that "the level of unprofitability there really made it unsellable" due to "the decline of the revenues over the last couple years." In fact, Mr. Early testified that "pre the pandemic" his team "already had a list of gyms identified which were unprofitable," which included the Tenant in Fenton, MO. Mr. Early's testimony in the Bankruptcy Proceedings, and his underlying analyses of unprofitable gyms that included the Premises purchased by Plaintiffs, directly conflicts with and exposes Defendants' express misrepresentations that the Tenant was a solid-performing location and its business was capable of sustaining the Tenant's performance under the lease (and even supporting extended terms and increased above-market rents via the Lease Extension). Through its consolidated Chapter 11 Bankruptcy, Gold's Gym International, Inc. rejected the Lease Extension with the Tenant, among others, and sold its assets through Bankruptcy Court Order to Non-Party RSG. Through numerous conferrals concerning the custodians of records in this case, Plaintiffs and RSG have mutually identified employees of Defendants TRT and/or RBR,* and those who were Gold's Gym International employ: 's that Non-Party RSG now holds sole custody, control, and access to the records of those custodians: 3 Plaintiffs have sought relevant discovery directly from Defendants TRT, RBR, Zelman, and Zeitsiff, on the same subject matters and identifiable sources of responsive documents and information sought to be compelled from Non-Party RSG. Defendants’ counsel has conferred with Plaintiffs' counsel separately on other discovery matters, and has agreed that certain relevant fact witnesses identified in initial disclosures—including specifically Adam Zeitsiff and Paul Early, mong others discussed below—were Gold's employees for which Non-Party RSG, by virtue of its bankruptcy acquisition, now holds sole custody, control, and acc to the records of those custodians. PLAINTIFFS’ MOTION TO COMPEL DISCOVERY FROM NON-PARTY RSG - Page 5 9564637 v3 (72208.00006.000) TRT/RBR (5 custodians): Brian Zelman (individual Defendant); Blake Rowling; Robert Rowling; Paul Jorge; Janett O'Dwyer Gold's Gym (6 custodians): Adam Zeitsiff (individual Defendant); Paul Early; Kerry Smalley; Brandon Bean; Ian Dunhill; Cliff Fielden B. Procedural Background On or about November 2, 2021, Plaintiffs served the Subpoena to Non-Party RSG. A true and correct and complete copy of the Notice of Subpoena and Subpoena to RSG is attached hereto as Exhibit 1. On or about December 2, 2021, counsel for RSG made contact with Plaintiffs’ counsel, and began several conferrals to understand the scope of the Subpoena. A true and correct copy of correspondence between counsel for RSG and Plaintiffs' counsel during this timeframe is attached hereto as Exhibit 2. On or about January 3, 2022, RSG served its Objections and Response to the Subpoena, true and correct and complete copy of which is attached hereto as Exhibit 3. RSG's Objections and Response did not include any accompanying responsive document production, but RSG otherwise responded that it would produce responsive documents to most of Plaintiffs’ Requests. On or about January 11, 2022, and continuing throughout February, March, and April 2022, Plaintiffs' counsel and counsel for RSG conferred in email correspondence and telephonic conferrals regarding certain of RSG's Objections, and worked together to identify and narrow the relevant custodians of records in RSG's possession, custody, and control. A true and correct copy of correspondence between counsel for RSG and Plaintiffs' counsel during this timeframe is attached hereto as Exhibit 4. On or about April 18, 2022, and continuing throughout May, June, July, and August 2022, Plaintiffs' counsel and counsel for RSG conferred in email correspondence and telephonic conferrals regarding RSG's applications of Plaintiffs' proposed search terms to the relevant custodians in RSG's PLAINTIFFS’ MOTION TO COMPEL DISCOVERY FROM NON-PARTY RSG - Page 6 9564637 v3 (72208.00006.000) custody and control, and worked together to revise and narrow those seatch terms with reasonable particularity. On or about June 24, 2022, counsel for RSG produced a small sub-set of documents (6) responsive to the Subpoena. On or about July 22, 2022, counsel for RSG advised Plaintiffs' counsel that it had approximately 20,000 documents and records generated from the search terms across six (6) Gold's Gym custodians, that are potentially responsive to the Subpoena. On or about July 25, 2022, Plaintiffs’ counsel (at Plaintiffs' expense) coordinated the set-up of a document review database from a web-based review platform, Reveal, in order for counsel for RSG to review and produce responsive documents yielded by the search results. A true and correct copy of correspondence between counsel for RSG and Plaintiffs' counsel during this timeframe is attached hereto as Exhibit 2.5 On or about August 17, 2022, Plaintiffs' counsel and counsel for RSG held a lengthy telephonic conferral to discuss the progress of counsel for RSG's review of responsive documents yielded by the search results, which RSG's counsel conceded had not yet been completed and had stalled in progress due to competing deadlines in other matters and unfamiliarity with the Reveal platform. Plaintiffs' counsel also conferred on the status of RSG's supplemental production of other responsive documents it agreed to produce in its Response to the Subpoena, which include: Documents, emails, or other written records of Defendant TRT's decision, communications, and/or instruction to Gold's Gym International and its employees, including specifically Mr. Paul Early, regarding the Chapter 11 Bankruptcy filing; and Paul Early's analyses of the "list of gyms identified as unprofitable" with "a decline of revenues over the last couple years" that supported his testimony in the Bankruptcy Proceeding. A true and correct copy of correspondence between counsel for RSG and Plaintiffs' counsel during this timeframe is attached hereto as Exhibit 6. On or about October 11, 2022, RSG supplemented its existing production with an additional forty six (46) documents responsive to Plaintiffs' Subpoena, and held a conferral call with Plaintiffs! PLAINTIFFS’ MOTION TO COMPEL DISCOVERY FROM NON-PARTY RSG - Page 7 9564637 v3 (72208.00006.000) counsel on October 13, 2022, regarding the deficiencies remaining in RSG's responsive productions. Plaintiffs' counsel and RSG's counsel discussed RSG's feedback that certain key words applied in the email searches had turned out to be overbroad, and conferred on whether the search parameters could be more fine-tuned; i.e. over a shorter time period, with more specific key words, and/or a focus on specific custodians. On or about October 17, 2022, Plaintiffs' counsel sent correspondence to RSG's counsel about proposed supplemental searches to identify relevant documents associated with two specific custodians: Defendant Adam Zeitsiff, and Paul Early. In the October 17, 2022 correspondence to RSG's counsel, Plaintiffs' counsel demonstrated the direct relevance of specific requests posed to RSG for Mr. Zeitsiff and Mr. Early; namely, Mr. Zeitsiff's involvement with Gold's Gym's sales of memberships in the St. Louis market in late 2019-early 2020, and Mr. Early's analysis of profitable and non-profitable stores that comprised his testimony in GGI's bankruptcy, excerpted as follows: "Pre the pandemic, part of what my team was looking at is the overall real estate portfolio. And what I like to do is do a full analysis of every gym, the profitability, the remaining lease term, and categorize that one into turnaround operation of try to get out of because it's unprofitable. So leading into this, we already had a list of gyms identified which were unprofitable which we were looking to figure out a lease termination for or a rent reduction." On October 28, 2022, after apparent reluctance from RSG to agree to parameters of supplemental responsive searches, Plaintiffs' counsel pointed out the specific requests in the Subpoena for which RSG has still not provided responsive documents that are known to exist: REQUE NO. 5: Any and all communications, correspondence, documents, agreements, notes, emails and memoranda prepared by, for or in relation to the analysis performed by or in conjunction with Paul Early or his team regarding the profitability and/or demographics supporting the business of the Tenant or other Gold's Gym fitness centers and any resulting analyses regarding or leading to the rejection of real estate leases, including but not limited to the Shopping Center Lease. REQUEST NO. 7: Any and all communications, documents, correspondence, agreements, notes, emails and memoranda relating to any efforts to market or sell the Tenant or the Tenant's business or assets. PLAINTIFFS’ MOTION TO COMPEL DISCOVERY FROM NON-PARTY RSG - Page 8 9564637 v3 (72208.00006.000) True and correct copies of correspondence between counsel for RSG and Plaintiffs' counsel during this timeframe (October), and excerpts of the emails’ non-confidential attachments, are attached hereto as Exhibit 7. These conferrals also reflect RSG's counsel's assertions of "core privilege" with respect to all of the materials withheld for "@goldsgym.com" custodians from RSG's responsive productions to Plaintiffs! Subpoena. As of the date of filing this Motion, despite several follow-ups with counsel for RSG, Plaintiffs and their counsel have not received any supplemental responsive production from RSG, nor any substantive update from counsel for RSG about whether it will agree to perform the supplemental searches to address RSG's deficient document production. In sum, Plaintiffs do not have a date certain that RSG will comply with the Subpoena and produce all responsive documents in its possession, custody, and control, or produce a written privilege log for materials withheld that require the same. III. ARGUMENT & AUTHORITY, AND DISCOVERY AT ISSUE The purpose of discovery is to seek the truth, so that disputes may be decided by what the facts reveal, not by what facts are concealed. Axelson, Inc. v. Melthany, 798 S.W.2d 550, 555 (Tex. 1990). The scope of discovery is broad, such that discovery may be obtained about any issue relevant to the subject matter of the case. TEX. R. Civ. P. 192.3(a). A party may obtain discovery regarding any matter that is not privileged and is relevant to the subject matter of the pending action, whether it relates to the claim or defense of the party seeking discovery or the claim or defense of any other party. TEX. R. Clv. P. 192.3(a). In other words, information is discoverable so long as it appears to be "reasonably calculated to lead to the discovery of admissible evidence." The documents requested are considered relevant if they tend to make the existence of a fact that is of consequence to the determination of the action more or less probable than it would be without the information. Id; TEX. R. Evi. 401. As against a non-party, Plaintiffs may compel discovery from a non-party like RSG by serving PLAINTIFFS’ MOTION TO COMPEL DISCOVERY FROM NON-PARTY RSG - Page 9 9564637 v3 (72208.00006.000) a Subpoena compelling production of documents, with required notice that identifies each item and category with reasonable particularity. TEX. R. Civ. P. 205.1; 205.3(b). In this case, highly material, relevant, and discoverable documents and communications, including specifically emails between the named Defendants and former employees of Gold's Gym International, appear to exist but have not yet been produced as part of RSG's responsive document productions to date. Additionally, RSG itself has conceded to the relevance and discoverability of certain documents and records sought by Plaintiffs, and has agreed in its Response to the Subpoena to produce responsive documents. These relevant subject matters—including specifically Mr. Zeitsiff's involvement with Gold's Gym's sales of memberships in the St. Louis market in late 2019-early 2020, and Mr. Early's analysis of profitable and non-profitable stores—are demonstrably proportional to the needs of the case and the amounts in controversy. Moreover, considering that Non-Party RSG admittedly has sole custody, control, and possession of the emails and documents needed by both Plaintiffs and Defendants to resolve the case, there is a particularized need for compelling RSG's compliance with the Subpoena, since the relevant documents and emails are not available from any other source. A. Requests for Production. Non-Party RSG is presently in the unique role of acquiring GGI's assets and retaining sole custody, control, and access to emails and documents for certain "@goldsgym.com" custodians that are discoverable in this case. Plaintiffs presently seek the following documents, records, and information (including emails) from Non-Party RSG, for which RSG currently holds sole custody, control, and access to: 1 Responsive documents and records for proposed supplemental searches specifically for custodians Adam Zeitsiff and Paul Early, based on deficiencies in RSG's existing document productions to date and failure to produce responsive documents from the prior approximately 20,000 documents resulting from prior searches; a. From Exhibit 7, on October 17, 2022, Plaintiff proposed searching Paul Early as a custodian, from October 1, 2019 through April 15, 2019, for the search terms [profit! OR portfolio! OR turnaround!], based on Mr. Early's testimony in GGI's Bankruptcy. PLAINTIFFS’ MOTION TO COMPEL DISCOVERY FROM NON-PARTY RSG - Page 10 9564637 v3 (72208.00006.000) Plaintiff proposed searching Adam Zeitsiff as a custodian, from October 1, 2019 through April 15, 2019, for only documents and emails exchanged with Mr. Early, for the same search terms [profit! OR portfolio! OR turnaround!]. Documents, emails, or other written records of Defendant TR’ decision, communications, and/or instruction to Gold's Gym International and its employees, including specifically Mr. Paul Early, regarding the Chapter 11 Bankruptcy filing; Paul Early's analyses of the "list of gyms identified as unprofitable" with "a decline of revenues over the last couple years" that supported his testimony in the Bankruptcy Proceeding and are responsive to Subpoena Request No. 5; and Any and all communications, documents, correspondence, agreements, notes, emails and memoranda relating to any efforts to market or sell the Tenant or the Tenant's business or assets, including specifically Mr. Zeitsiff's contact to Club Fitness beginning in December of 2019 regarding sales of membership and/or exiting the St. Louis market, which are responsive to Subpoena Request No. 7. Despite Plaintiffs and their counsel sincerely understanding the extent of highly relevant discovery sought from Non-Party RSG, and the competing obligations of RSG's counsel that has prevented RSG from performing additional searches and supplementing its responsive production to the Subpoena, nevertheless, Plaintiffs move this Court for an Order Compelling Discovery from RSG simply as a means to find finality in receiving responsive documents from RSG within the discovery period applicable to this case. B. Request for a Written Privilege Log. Plaintiffs’ Subpoena and subsequent correspondences with RSG's counsel have requested a written privilege log from RSG's counsel for responsive materials withheld from RSG's production on the basis of any applicable privilege. To date, as reflected in Exhibit 7, RSG's counsel has not produced a privilege log or other written response regarding withheld materials, and has asserted that all materials withheld on the basis of privilege are "core privilege" materials that do not require a privilege log. PLAINTIFFS’ MOTION TO COMPEL DISCOVERY FROM NON-PARTY RSG - Page 11 9564637 v3 (72208.00006.000) Rule 193.3(¢) offers an exemption to the obligation to produce a written response identifying and describing materials withheld on the basis of specific privilege(s), in the limited circumstance where the privileged communication was: 1) created or made from the point at which a party consults a lawyer with a view to obtaining professional legal services from the lawyer in the prosecution or defense of a specific claim in the litigation in which discovery is requested, and 2) concerning the litigation in which the discovery is requested. Tex. R. Cry. P. 193.3(c)(1)-(2) (emphasis added). Plaintiffs! Subpoena and all subsequent conferrals and agreements for targeted search parameters for RSG's searches have all identified the relevant time petiod beginning in 2018 (when Plaintiffs first began dealing with Defendants) through the filing of GGI's Bankruptcy in mid-2020. This lawsuit was not filed until August 24, 2021, against any Defendant, including the "@goldsgym.com" custodian specifically at issue in RSG's deficient productions, Mr. Adam Zeitstiff. Consequently, Plaintiffs have sought additional clarification from Non-Party RSG, without response, as to how searches of Mr. Zeitsiff's and other "@goldsgym.com" custodians during pre-litigation timeframes could yield any "core privilege" materials for which a privilege log is not required. Accordingly, Plaintiffs respectfully request that the Court compel RSG to comply with the written privilege log requirements of Rule 193.3, for any applicable privileges for materials withheld in response to the Subpoena. IV. CONCLUSION For the foregoing reasons, Plaintiffs respectfully pray that the Court grant this Motion to Compel, order Non-Party RSG to produce responsive documents and records, and produce a written privilege log, within 21 days of issuing an Order Compelling Discovery, and grant Plaintiffs such other and further relief to which they may be justly entitled. PLAINTIFFS’ MOTION TO COMPEL DISCOVERY FROM NON-PARTY RSG - Page 12 9564637 v3 (72208.00006.000) Respectfully submitted, KANE RUSSELL COLEMAN LOGAN P.C. By: s/ Robert N. LeMay Robert N. LeMay State Bar No. 12188750 tlemay@krcl.com Jaime M. DeWees State Bar No. 24097593 jdewees@krcl.com Brandon Keaton State Bar No. 24128456 bkeaton@krcl.com 901 Main Street Suite 5200 Dallas, Texas 75202 Telephone (214) 777-4254 Facsimile (214) 777-4299 ATTORNEYS FOR PLAINTIFFS CERTIFICATE OF CONFERENCE Counsel for Plaintiffs and counsel for Non-Party RSG have discussed the issues outlined in this motion but have been unable to reach an agreement to the items addressed herein, specifically whether RSG will perform supplemental searches as requested, and the date certain on which RSG will comply with the Subpoena and produce all responsive documents. Consequently, these issues are presented to the Court for determination. S Robert N. LeMay Robert N. LeMay PLAINTIFFS’ MOTION TO COMPEL DISCOVERY FROM NON-PARTY RSG - Page 13 9564637 v3 (72208.00006.000) CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the above and foregoing document was served on all known counsel of record in this cause in accordance with the Texas Rules of Civil Procedure on November 7, 2022 as follows: VIA EMAIL: Susan Hannagan Gold's Gym, Senior Counsel 5420 LYNDON B. JOHNSON FREEWAY, SUITE 700 DALLAS, TX 75240 susan. hannagan@goldsgym.com ATTORNEYS FOR NON-PARTY RSG GROUP USA, INC. VIA EFILE Elliot Strader Xakema Henderson AKERMAN LLP 2001 Ross Avenue, Suite 3600 Dallas, Tex: 5201 e ot.strader@al mai xakema.hendetson@akerman.com ATTORNEYS FOR DEFENDANTS sl Robert N. LeMay Robert N. LeMay PLAINTIFFS’ MOTION TO COMPEL DISCOVERY FROM NON-PARTY RSG - Page 14 9564637 v3 (72208.00006.000) FILED 11/2/2021 3:21 PM FELICIA PITRE DISTRICT CLERK DALLAS CO., TEXAS Christi Underwood DEPUTY CAUSE NO. DC-21-11406 MILTON 635 GRAVOIS ROAD LLC, IN THE DISTRICT COURT 635 GRAVOIS ROAD LEASING LLC, and 635 GRAVOIS ROAD REAL ESTATE LLC, Plaintiffs, v. 44TH JUDICIAL DISTRICT TRT HOLDINGS, INC., RBR REAL ESTATE HOLDINGS, LLC, BRIAN ZELMAN, and ADAM ZEITSIFF, Defendants. DALLAS COUNTY, TEXAS NOTICE OF SUBPOENA DUCES TECUM TO NON-PARTY RSG GROUP USA, INC. TO: CUSTODIAN OF RECORDS FOR RSG GROUP USA, INC., C/O PARACORP INCORPORATED, 14001 W. HWY 29, SUITE 102, LIBERTY HILL, TEXAS 78642. PLEASE TAKE NOTICE that, pursuant to Rules 200 & 205 of the Texas Rules of Civil Procedute, Plaintiffs, MILTON 635 GRAVOIS ROAD LLC, 635 GRAVOIS ROAD LEASING LLC, and 635 GRAVOIS ROAD REAL ESTATE LLC, serve this notice of intention to serve a Subpoena Duces Tecum, attached as Exhibit 1, on non-party RSG Group USA, Inc. The Subpoena Duces Tecum commands the production of documents and tangible items identified in the attached Exhibit A to the Subpoena Duces Tecum twenty (20) days from the service of the Subpoena Duces Tecum, at 10 a.m., electronically to Robert N. LeMay, Esq., rlemay@krcl.com, or, alternatively, at the offices of Special Delivery c/o Scott Thomas, 812 W. 11" Street, Suite 207, Austin, TX 78701 ISSUED this 2nd day of November, 2021. NOTICE OF SUBPOENA DUCES TECUM TO NON-PaRTY RSG Group USA, INC. - Page 1 of 3 8859104 v1 (72208.00006.000) EXHIBIT 1 - Page 1 of 17 Respectfully submitted, KANE RUSSELL COLEMAN LOGAN PC By: /s/ Robert N. LeMay Robert N. LeMay State Bar No. 12188750 rlemay@krcl.com Jaime M. DeWees State Bar No. 24097593 Stephen A. Cord State Bar No. 24105741 scord| krel.com 901 Main St., Ste. 5200 Dallas, Texas 75202 Telephone: (214) 777-4200 Facsimile: (214) 777-4299 CERTIFICATE OF SERVICE Thereby certify by my signature above that on November 2, 2021, a true and correct copy of the foregoing document was setved on the following counsel of record via the Court's electronic case filing system: VIA HAND DELIVERY RSG Group USA, Inc. c/o Paracorp Incorporated 14001 W. Hwy 29, Suite 102 Liberty Hill, Texas 78642 VIA EFILE Elliot Strader : E 43 lliot.strader@akerman.com Xakema Henderson Xakema.henderson@akerman.com AKERMAN LLP 2001 Ross Avenue, Suite 3600 Dallas, TX 75201 Attorneys for Defendants /s/ Robert N. LeMay Robert N. LeMay NOTICE OF SUBPOENA DUCES TECUM TO NON-Party RSG Group USA, INC. - Page 2 of 3 8859104 v1 (72208.00006.000) EXHIBIT 1 - Page 2 of 17 EXHIBIT 1 NOTICE OF SUBPOENA DUCES TECUM TO NON-ParTy RSG Group USA, INC. - Page 3 of 3 8859104 v1 (72208.00006.000) EXHIBIT 1 - Page 3 of 17 CAUSE NO. DC-21-11406 MILTON 635 GRAVOIS ROAD LLC, IN THE DISTRICT COURT 635 GRAVOIS ROAD LEASING LLC, and 635 GRAVOIS ROAD REAL ESTATE LLC, Plaintiffs, v. 44TH JUDICIAL DISTRICT TRT HOLDINGS, INC., RBR REAL ESTATE HOLDINGS, LLC, BRIAN ZELMAN, and ADAM ZEITSIFF, Defendants. DALLAS COUNTY, TEXAS SUBPOENA DUCES TECUM TO NON-PARTY RSG GROUP USA, INC. THE STATE OF TEXAS ISSUED ON NOVEMBER 15, 2021 TO CUSTODIAN OF RECORDS FOR: RSG GROUP USA, INC. C/O PARACOPR INCORPORATED 14001 W. HWY 29, SUITE 102 LIBERTY HILL, TEXAS 78642 TO ANY SHERIFF OR CONSTABLE OF THE STATE OF TEXAS OR OTHER PERSON AUTHORIZED TO SERVE AND EXECUTE SUBPOENAS AS PROVIDED IN TEXAS RULE OF CIVIL PROCEDURE 176. YOU ARE HEREBY COMMANDED to produce and permit inspection and copying of the inal or an exact duplicate of the original of the documents or tangible things described in Exhibit A, attached hereto, that are in your possession, custody, or control on or before December 6, 2021. These documents shall be provided for inspection and/or produced electronically to Robert N. LeMay, Esq. at rlemay@krcl.com, or, alternatively, at the offices of Special Delivery c/o Scott Thomas, 812 W. 11" Street, Suite 207, Austin, TX 78701. Pursuant to Texas Civil Practice and Remedies Code §22.004, payment in the amount of $1.00 is also included with this subpoena. Additional payment for the reasonable costs of reproducing these documents will be paid at the time of production. FAILURE BY ANY PERSON WITHOUT ADEQUATE EXCUSE TO OBEY A SUBPOENA SERVED UPON THAT PERSON MAY BE DEEMED IN 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. SUBPOENA DUCES TECUM TO NON-ParTy RSG Group USA, INC. - Page 1 of 13 8849912 v1 (72208.00006.000) EXHIBIT 1 - Page 4 of 17 This subpoena was issued at the request of Plaintiffs whose attorney of record is: Robert N. LeMay State Bar No. 12188750 rlemay@krcl.com 901 Main St, Ste. 5200 Dallas, Texas 75202 Telephone: (214) 777-4200 Facsimile: (214) 777-4299 /s/ Robert N. LeMay Robert N. LeMay SUBPOENA DUCES TECUM TO NON-Party RSG Group USA, INC. - Page 2 of 13 8849912 v1 (72208.00006.000) EXHIBIT 1 - Page 5 of 17 OFFICER’S RETURN Thereby state that on this day of November, 2021, I delivered a true and correct copy hereof, along with all fees required by law, to the within named witness by serving Returned this day of November, 2021. Officer’s Signature SUBPOENA DUCES TECUM TO NON-ParTy RSG Group USA, INC. - Page 3 of 13 8849912 v1 (72208.00006.000) EXHIBIT 1 - Page 6 of 17 EXHIBIT A I DEFINITIONS 1 "You", "Your" or "RSG" means RSG Group USA, Inc. its present and former employees, attorneys, representatives, parents, subsidiaries and all other persons or entities contolled by or acting on its behalf. 2. "You," "Your," "Defendant" or "TRT Holdings" means Defendant TRT Holdings, Inc., its present and former employees, attorneys, representatives, parents, subsidiaries and all other persons or entities controlled by or acting on its behalf. 3 "Gravois LLC" means Plaintiff Milton 635 Gravois Road LLC, its present and former employees, attorneys, representatives, parents, subsidiaries and all other persons or entities controlled by or acting on its behalf. 4. "635 Gravois Road Leasing" means Plaintiff 635 Gravois Road Leasing LLC, its present and former employees, attorneys, representatives, parents, subsidiaries and all other persons or entities controlled by or acting on its behalf. a "635 Gravois Road RE" means 635 Gravois Road Real Estate LLC, its present and former employees, attorneys, representatives, parents, subsidiaries and all other persons or entities controlled by or acting on its behalf. 6. "RBR Holdings" means RBR Real Estate Holdings, LLC, its present and former employees, attorneys, representatives, parents, subsidiaries and all other persons or entities controlled by or acting on its behalf. 7 "Zelman" means Brian Zelman, his present and former employees, attorneys, representatives, parents, subsidiaries and all other persons or entities controlled by or acting on his behalf. SUBPOENA DUCES TECUM TO NON-ParTy RSG Group USA, INC. - Page 4 of 13 8849912 v1 (72208.00006.000) EXHIBIT 1 - Page 7 of 17 8 "Zeitsiff' means Adam Zeitsiff, his present and former employees, attorneys, representatives, parents, subsidiaries and all other persons or entities controlled by or acting on his behalf. 9 "Plaintiffs" means Gravois LLC, 635 Gravois Road Leasing, and 635 Gravois Road RE, including, but not limited to, their brokers, affiliates, representatives, agents, prinicpals or attorneys, including but not limited to Leeton Real Estate, Inc., Mark Sher, Michael Shabsels, Mark Graham or Mark Cohen. 10. "Defendants" means TRI Holdings, RBR RE Holdings, Zelman, and Zeitsiff, including, but not limited to, their brokers, affiliates, representatives, agents or attorneys. 11. "Tenant" means Gold's St. Louis, LLC, its present and former employees, attorneys, representatives, parents, subsidiaries and all other persons or entities controlled by or acting on its behalf. 12. "PSA" means the Agreement of Purchase and Sale by and between Leeton Real Estate, Inc. and RBR RE Holdings. ot "Amendment" means any and all amendments to the PSA, as defined herein. 14. "Lease Agreement" means that lease agreement dated July 31, 2006 by and between Gold's St. Louis, LLC and Scannell Properties #61, LLC. 15. "Shopping Center Lease" means the Amended and Restated Shopping Center Lease agreement between RBR RE Holdings and Golds Gym dated August 31, 2018 and amended in November of 2019. 16. "Premises" means 635 Gravois Road, Fenton, Missouri. ale "Assignment and Assumption" means that Assignment and Assumption of Leases dated November 26, 2019 by and between RBR RE Holdings and Gravois, LLC. SUBPOENA DUCES TECUM TO NON-ParTy RSG Group USA, INC. - Page 5 of 13 8849912 v1 (72208.00006.000) EXHIBIT 1 - Page 8 of 17 18. "Bankruptcy" means the Bankruptcy filed under Case No. 20-31318-hdh in the United States Bankruptcy Court in the Northern District of Texas by Gold's Gym. 19. "Broker" means Aaron Johnson, including, but not limited to, his affiliates, representatives, agents, attorneys or principals, including but not limited to, Holliday Fenoglio Fowler L.P. or Jones, Lang, LaSalle Incorporated or any of their affiliates. 20. "Gold's Gym" means Gold's Gym International, Inc., its present and former employees, attorneys, representatives, parents, subsidiaries and all other persons or entities controlled by or acting in its behalf. 21. "Document" means the originals and each non-identical copy or reproduction of any written or recorded matter in your possession, custody or control, or the custody or control of your servants, employees, attorneys or other agents or any other person or entity acting on your behalf -- whether printed, recorded, reproduced by any process, or written or produced by hand. This definition includes all handwritten, typewritten, printed, photocopied, photographic or recorded matter, and includes pictures, photographs, diagrams, sound recordings, films, tapes, and information stored in, or accessible through, computer or other information storage or retrieval systems, including emails, text messages and instant messages, together with the codes and/or programming instructions and other materials necessary to understand and use such systems. 22. "Relating to" means embodying, pertaining, concerning, involving, constituting, commenting upon, comprising, reflecting, discussing, evidencing, mentioning, referring to, consisting of, responding to, supporting or controverting a contention, or having any logical or factual connection whatsoever with the subject matter in question, 23% "Communications" means any contact or act by which any information is transmitted or conveyed between two or more persons, and shall include, without limitation, written contact by such means as letters, memoranda, telegrams, telexes, electronically transmitted messages, SUBPOENA DUCES TECUM TO NON-ParTy RSG Group USA, INC. - Page 6 of 13 8849912 v1 (72208.00006.000) EXHIBIT 1 - Page 9 of 17 emails, text message, or by any Document, and any oral contact by such means as face to face meetings or conversations and telephone conversations which are transcribed, notated or in any other manner memorialized in written, typed or recorded form. 24. "Including" means "including but not limited to", and is not restrictive or limiting. 25. "Identify" or any form of that word as used herein in connection with a document means to state: @) the name, date and subject of the document; ) the type of document (¢.g,, letter, memorandum, note, report); © the identity of the author and all recipients of the document; @) the identity of the custodian or possessor of the document or a copy thereof; and © the location of the document or a copy thereof. 26. "Identify" or any form of that word as used herein with respect to a person, if the person is an individual, means to state: @) the name; ) the present employer, if known; and © the present address and telephone number or, if unknown, the last known address and telephone number and last known employer of such person. 27. "Identify" or any form of that word, as used herein with respect to a person, if the person is a corporation, partnership or other legal entity, means to: @) state the name; ) identify that state of legal formation and current existence; identify all officers, directors, partners and/or principals; and @) state the address of the entity's principal place of business. SUBPOENA DUCES TECUM TO