Preview
FILED
1/18/2023 1:48 PM
FELICIA PITRE
DISTRICT CLERK
DALLAS CO., TEXAS
SADAF RAJPUT DEPUTY
CAUSE NO. DC-21-11406
MILTON 635 GRAVOIS ROAD LLC, et al., § IN THE DISTRICT COURT
Plaintiff(s),
VS. 44TH JUDICIAL DISTRICT
TRT HOLDINGS, INC., et al.,
Defendant(s). DALLAS COUNTY, TEXAS
RETURN OF SERVICE
Came to my hand on Tuesday, January 17, 2023 at 12:45 PM,
Executed at: 1999 BRYAN STREET, SUITE 900, DALLAS, TX 75201
at 1:25 PM, on Tuesday, January 17, 2023,
by delivering to the within named:
KPMG LLP
by delivering to its Registered Agent, CT CORPORATION SYSTEM
by delivering to its Authorized Employee, TERRI THONGSAVAT
a true copy of this
NOTICE OF SUBPOENA DUCES TECUM TO NON-PARTY KPMG LLP and SUBPOENA
DUCES TECUM TO NON-PARTY KPMG LLP with EXHIBIT A
having first endorsed thereon the date of the delivery.
[ama person not less than eighteen (18) years of age and I am competent to make this oath. I am a resident of the State of
Texas. I have personal knowledge of the facts and statements contained herein and aver that each is true and correct. | am
not a party to nor related or affiliated with any party to this suit. I have no interest in the outcome of the suit. I have never
been convicted of a felony or of a misdemeanor involving moral turpitude. 1 am familiar with the Texas Rules of Civil
Procedure, and the Texas Civil Practice and Remedies Codes as they apply to service of process. I am certified by the
Judicial Branch Certification Commission to deliver citations and other notices from any District, County and Justice Courts
in and for the State of Texas in compliance with rule 103 and 501.2 of the TRCP.”
My name is Tracy Edwards, my date of birth is September 15, 1963 and my address is $470 L.B.J. Freeway, Dallas,
Texas, 75240 in the county of Dallas, United States of America. I declare under penalty of perjury that the foregoing
is true and correct.
Executed in Dallas County, State of Texas, on Wednesday, January 18, 2023
fete
Tracy Edwards - PSC 1872 - Exp 03/31/24
served@specialdelivery.com
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
TICE OF SUBPOENA DUCES TECUM TO = PMG LLP
TO: CUSTODIAN OF RECORDS FOR KPMG LLP, C/O CT CORPORATION SYSTEM
1999 BRYAN STREET, SUITE 900, DALLAS, TEXAS 75201.
PLEASE TAKE NOTICE that, pursuant to Rules 200 & 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, serve this notice of intention to serve a
Subpoena Duces Tecum, attached as Exhibit 1, on non-party KPMG LLP.
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 Duecs Tecum, at 10 a.m., electronically to Robert N. LeMay, Esq.,
rlemay@krcl.com, or, alternatively, at the offices of KANT RUSSELI. COLEMAN LOGAN, 901 Main
Street, Suite 5200, Dallas, TX 75202
ISSUED this 17th day of January, 2023.
NOTICE OF SUBPOENA DUCES TECUM TO NON-PARTY KPMG LLP - Page 1 of3
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Respectfully submitted,
KANE Ru L COLEMAN LOGAN PC
By: Ls/ Robert N. LeMgy
Robert N. LeMay
State Bar No. 12188750
y@krel.co
Jaime M. DeWees
State Bar No. 24097593
901 Main St., Ste. 5200
Dallas, Texas 75202
Telephone: (214) 777-4200
Facsimile: (214) 777-4299
CERTIFICATE OF SERVICE
I hereby certify by my signature above that on January 17, 2023, a true and correct copy of
the foregoing document was served on the following counsel of record via the Court's electronic
case filing system:
VIA HAND DELIVERY
KPMG LLP
c/o CT Corporation System
999 Bryan Street, Suite 900
Dallas, Texas 75201
VIA EFILE
Elliot Strader
ui jot strader@aks com
Xakema Henderson
Xakema.henderson@akerman.com
AKERMAN LLP
2001 Ross Avenue, Suite 3600
Dallas, TX 75201
Attorney's for Defendants
's/ Robert N.
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,
Plainuffs,
v. 44TH JUDICIAL DISTRICT
TRT HOLDINGS, INC.,
RBR REAL ESTATE HOLDINGS, LLC,
BRIAN ZELMAN, and ADAM ZEITSIFF,
Defendants. DALLAS COUNTY, TEXAS
POEN. ICES TECUM TO NO’ -P. ‘PMG LLP
THE STATE OF TEXAS
ISSUED ON JANUARY 27, 2023
TO CUSTODIAN OF RECORDS FOR: KPMG LLP
C/O CT CORPORATION SYSTEM
1999 BRYAN STREET, SUITE 900
DALLAS, TX 75201
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 original 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 by 10 A.M. on or before
twenty (20) days from the service of this Subpoena Duces Tecum. These documents shall be
provided for inspection and/or produced clectronically to Robert N. LeMay, Esq. at
slemay@krel.com, or, alternatively, at the offices of KANE RUSSELL. COLEMAN LOGAN, 901 Main
Street, Suite 5200, Dallas, TX 75202.
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
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COURT IN THE COUNTY IN WHICH THE SUBPOENA IS SERVED, AND MAY BE
PUNISHED BY FINE OR CONFINEMENT, OR BOTH.
This subpoena was issued at the request of Plaintiffs whose attorncy of record is:
Robert N. LeMay
State Bar ne 12188750
re
901 Main St., Ste. 5200
Dallas, Texas 75202
Telephone: (214) 777-4200
Facsimile: (214) 777-4299
Ls] Robert N. LeMay
Robert N. LeMay
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OFFICER’S RETURN
T hereby state that on this day of , 2023, 1 delivered a truc and
correct copy hercof, along with all fees required by law, to the within named witness by serving
Returned this day of, 2023.
Officer’s Signature
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EXHIBITA
1, DEFINITIONS
1 "You", "Your" or "KPMG" means KPMG LLP, its present and former employees,
attorneys, representatives, parents, subsidiaries and all other persons or entities controlled 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. "RSG" means RSG Group USA, Inc., its present and former employees, attorneys,
representatives, parents, subsidiaries and all other persons or entities controlled by or acting on its
behalf.
4, “Gravois LLC" means Plaintiff Milton 635 Gravois Road LLC, its present and
former employces, attorneys, representatives, parents, subsidiaries and all other persons or entities
controlled by or acting on its behalf.
eS
>. "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.
6 "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.
7. "RBR Holdings" means RBR Real Estate Holdings, LLC, its present and former
employees, attorneys, representatives, parents, subsidiaries and all other persons or entitics
controlled by or acting on its behalf.
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8. "Zelman" means Brian Zelman, his present and former employces, attorncys,
representatives, parents, subsidiaries and all other persons or entities controlled by or acting on his
behalf.
9. “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.
10. "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.
ti "Defendants" means TRT Holdings, RBR RE Holdings, Zelman, and Zeitsiff,
including, but not limited to, their brokers, affiliates, representatives, agents or attorneys.
12. "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.
13. "PSA" means the Agreement of Purchase and Sale by and berween Leeton Real
Estate, Inc. and RBR RE Holdings.
14. “Amendment" means any and all amendments to the PSA, as defined herein.
15. "Lease Agreement" means that lease agreement dated July 31, 2006 by and between
Gold's St. Louis, LLC and Scannell Properties #61, LLC.
16. “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.
7, “Premises” means 635 Gravois Road, Fenton, Missouri.
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18. "Assignment and Assumption" means that Assignment and Assumption of Leases
dated November 26, 2019 by and between RBR RIE Holdings and Gravois, LLC.
19. "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.
20. "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.
21. "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.
22. "Document" means the originals and cach 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.
23 "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.
24, "Communications" means any contact or act by which any information is
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transmitted or conveyed between two or more persons, and shall include, without limitation, written
contact by such means as letters, memoranda, telegrams, tclexes, electronically transmitted messages,
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.
25. “Including” means "including but not limited to", and is not restrictive or limiting.
26. "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 (eg, letter, memorandum, note, report);
{c) the identity of the author and all recipients of the document;
(d) the identity of the custodian or possessor of the document or a copy thereof,
and
(©) the location of the document or a copy thereof.
27. "Identify" or any form of that word as used herein with respect to a person, if the
person is an individual, means to state:
(a) 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.
28. "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:
(a) state the name;
(b) identi y that state of legal formation and current existence;
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© identify all officers, directors, partners and/or principals; and
(4) state the address of the entity's principal place of business.
Il. INSTRUCTIONS F OC ESTS
1 Defendants’ responses to these Requests must be served, including the production of
documents, within thirty (30) days from the date you are served at the following address, during
normal business hours:
KANE RUSSELL COLEMAN LOGAN PC
Attn: Robert N. LeMay
901 Main Street, Suite 5200
Dallas, Texas 75202
2. In producing documents, you are to produce all documents in your possession,
custody, or control, regardless of whether such documents are directly in your possession, custody,
or control, or in the possession, custody, or control of your attorneys, agents, representatives, or any
other persons acting or purporting to act on your behalf or under your direction or control. These
Requests shall be treated as secking any and all information within the care, custody or control of
Defendants.
3. Where you are asked to identify or describe a document and the document is in a
paper format, state the date of the document, identify any persons that authored the document,
identify any recipients of the document, and identify all custodians of any copy of the document.
4 All responsive material and documents should be produced in native format and
converted into single page searchable Tagged Image File Format (TIFF), unless otherwise specified.
All. metadata associated with the responsive material and documents shall be maintained. For
material documents that cannot be converted into TIFF, notify requesting party of the intended
form of production that is either reasonably usable or as it is ordinarily kept. All Data responsive to
the requests below shall be provided via CD, DVD, or Floppy Disk in user readable format Ctxt or
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similar file types), or as otherwise agreed in a supplemental writing by the parties. For any
electronically stored information produced:
a. Searchable Database Files: Provide document images and database load files that
are in a format suitable for direct input into Reveal database programs. The
database files shall have the following minimum characteristics:
i Images: Images will be delivered in Group IV Single Page TIFF images,
scanned at 300 dpi or more. Each imaged page will be branded with a
unique sequential number consisting of an alpha prefix and numeric digits
("Bates Number'),
Document Breaks: Physical document boundaries will be captured during
scanning and the load file will reflect those document boundaries. A
document break will indicate where folders, redwells, binders, clips, rubber
bands, staples, etc. originally appeared;
iii. OCR DATA: Document OCR will be performed. OCR will be provided
on a document level. There will be one OCR text file per document,
named the same as that document's beginning bates number. The OCR
text file for a document should reside in the same location (file directory)
as the images for that document. The OCR file associated with any
redacted document may exclude the redacted text.
b. Document Index: For each document production, you shall provide both a paper
copy index and a matching tab delimited text file containing the following values
for each document:
i Beginning bates number;
ii, Ending bates number;
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iii. The document's custodian; and
iv. The document's physical location before scanning.
a
5. When you are asked to identify or describe a document and the document is in an
electronic or digital formar, identify the format of the document, the system or media in which the
document is maintained, and identify all personnel with access to that system or media.
6 If you assert any privilege or protection as trial-preparation material as a ground for
failing to produce documents responsive to any Request, you shall respond to that part of each such
Request that, in your view, does not seek allegedly privileged or otherwise protected information or
communications. For each document, or portion thereof, responsive to a Request for which you
claim a privilege or other protection, you shall describe the factual basis for such claim in sufficient
detail to permit adjudication of the validity of that claim, including without limitation, the following
information:
an identification or description of the document withheld;
the name, title and job description of each person who has received or utilized
the document;
a description of the subject matter of the document; and
d. the nature of the privilege or other protection claimed
7. If any document is not or cannot be produced in full, you are to produce the
document to the extent possible, indicating which portion of such document is not or cannot be
produced and the reason.
8. In producing documents, you are to produce an exact copy of the original together
with all non-identical copies and drafts of such documents. Each document shall be bound, stapled,
or otherwise organized in the same manner as the original. Documents attached to cach other shall
not be separated.
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9% If any requested documents have been lost, destroyed, or are otherwise no longer in
your possession, custody, or control, such documents or material shall be identified as completely as
possible.
10. The Requests are continuing in nature. If additional information is obtained or
becomes available, you have a duty to supplement any response to the Requests as necessary.
Ill. REQUEST FOR PRODUCTION
REQUEST NO. 1: Any and all documents and/or communications relating to, reflecting or
evidencing the date that the Consolidated Financial Statements, With Independent Auditors' Report
Thercon, of Gold's Gym and its subsidiaries as of December 31, 2018, was completed ahd delivered
to Gold's Gym.
RESPONSE:
REQUEST NO. 2: Any and all documents and/or communications relating to, reflecting or
evidencing to whom (person{s]) at Gold's Gym the Consolidated Financial Statements, With
Independent Auditors’ Report Thereon, of Gold's Gym and its subsidiaries as of December 31,
2018, was delivered to.
RESPONSE:
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