Preview
FILED
6/21/2022 11:49 AM
FELICIA PITRE
DISTRICT CLERK
DALLAS CO., TEXAS
Marissa Gomez DEPUTY
CAUSE NO. DC-21-14068
GAMCO PROPERTIES, LLC, § IN THE DISTRICT COURT
GAMVEST, LP and LESA GAMBLE, §
§
Plaintiffs, §
§
V. § DALLAS COUNTY, TEXAS
§
WHAM TECH, INC. and WHAM §
TECHNOLOGIES, INC., §
§
Defendants. § 134TH JUDICIAL DISTRICT
PLAINTIFFS’
MOTION TO COMPEL
Pursuant to Texas Rules of Civil Procedure 192.6 and 193.4, Plaintiffsl respectfully request
that the Court overrule a series of baseless objections asserted by Defendants Wham Tech, Inc.
(“WhamTech”) and Wham Technologies, Inc. (collectively, “Defendants”) to Plaintiffs’ First Set
of Requests for Production and Interrogatories (collectively, the “Requests”) and compel
Defendants to appropriately respond to the same. In support, Plaintiffs would show:
I.
1. By this motion, Plaintiffs request that the Court compel Defendants to meaningfully
respond to the pending Requests. Indeed, in lieu of complying with their obligations under the
Texas Rules of Civil Procedure, Defendants instead: (1) seek to artificially restrict the scope of
discoverable information and (2) refuse to even attempt to identify responsive documents or
information—claiming that searching more than one computer for responsive documents would
impose an undue burden. Despite Defendants’ claims to the contrary, however, they may not
unilaterally “pick-and-choose” the Requests to which they are willing to respond and/or the
1
As used herein, “Plaintiffs” shall mean and refer to Plaintiffs Gamco Properties, LLC; Gamvest, LP; and Lesa
Gamble, collectively.
PLAINTIFFS’
MOTION TO COMPEL - Page 1
custodians they are willing to consult. Instead, Defendants must meet their obligations under the
Texas Rules of Civil Procedure—just like any other party appearing before the Court.
2. Based on the foregoing, and as set forth in further detail below, Plaintiffs
respectfully request that the Court: (1) overrule Defendants’ objections to the Requests, (2) compel
Defendants to produce documents responsive Plaintiffs’ First Set of Requests for Production and
(3) compel WhamTech to answer Gamco Properties, LLC’s First Set of Interrogatories.
II.
3. It is well-established that 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. McIlhany, 798 S.W.2d 550, 555 (Tex. 1990). Discovery may be obtained about any matter
relevant to the subject matter of the case and the claims and defenses at issue therein. See Tex. R.
Civ. P. 192.3; see also In re CSX Corp, 124 S.W.3d 149, 152 (Tex. 2003) (orig. proceeding).
Information is discoverable so long as it appears “reasonably calculated to lead to the discovery of
admissible evidence.” Id. At the very minimum, a party must be allowed to inquire into the facts
underlying its opponent’s case. See Hill and Griffith C0. v. Bryant, 139 S.W.3d 688, 695 (Tex.
App .—Tyler 2004, pet. denied). The Texas Rules of Civil Procedure limit the ability of a party to
resist discovery and place the burden of compliance squarely on the resisting party. See Tex. R.
Civ. P. 193.2.
III.
4. By this lawsuit, Plaintiffs seek recompense for Defendants’ violations of state and
federal securities laws. Indeed, to induce Plaintiffs’ investment in WhamTech, Defendants made
a series of misrepresentations concerning its strength, Viability, and (even) existence. For example,
Defendants claimed that WhamTech “own[ed] certain software and associated patents and trade
secrets” that were exceptionally marketable/valuable (the “Claimed Assets”). Defendants further
PLAINTIFFS’
MOTION TO COMPEL — Page 2
claimed that they were in active negotiations with several large companies concerning the
sale/licensing of the Claimed Assets—including (but not limited to): (1) Northrop Grumman
Corporation; (2) Magellan Health, Inc.; (3) Intel Corporation; (4) General Dynamics Corporation,
(5) United Healthcare, Inc. ; (6) Mastercard, Inc.; (7) Kaiser Permanente; and (8) PayPal Holdings,
Inc. (collectively, the “Putative Licensors”).
5. Defendants also sent Plaintiffs “Pipeline Projections” at various times that
purported to show the revenue that would result from Defendants’ relationship with the Putative
Licensors. Therein, Defendants claimed that WhamTech would realize $23,512,500 and
$72,284,250 in revenue in 2018 and 2019, respectively—resulting in an overall “company
valuation” of $867,411,000. Defendants further represented that this would create a “12.59[]
Multiple on Original Share Price.” Unfortunately, however, it now appears that these
representations—as well as several others—were false. In fact, Defendants are seemingly
unwilling (or unable) to produce any evidence that the Claimed Assets ever existed—let alone that
the Putative Licensors were Willing to pay millions of dollars to use or acquire them.
6. Instead, it appears that Defendants are mere shell entities created for the sole
purpose of defrauding investors, as well as siphoning money to a core group of “employees.”
Indeed, despite Defendants’ bullish representations that WhamTech would realize an overall
company valuation in excess of $867 million, WhamTech’s financial records reveal that it has
experienced a retained earnings deficit of (at least) $73,160,060. Said another way, WhamTech
has (at least) $73 million more in cumulative losses than it has in gains. Even so, WhamTech’s
balance sheet indicates that it is (somehow) paying its “employees” between $2.3 and $2.7 million
in research and development costs year-over—year—without realizing any significant revenue.
This has left the company with exceeding little cash on hand. For example, WhamTech’s
PLAINTIFFS’
MOTION TO COMPEL - Page 3
consolidated balance sheet indicates that it had $2,241 in cash on December 31, 2021. The dire
financial condition of WhamTech is made all the more concerning by the fact that its balance sheet
also reveals that Defendants raised more than $54 million from unsuspecting investors—like
Plaintiffs.
7. To investigate the extent of Defendants’ varied misrepresentations, Plaintiffs
propounded written discovery that requested documents and information related to:
(1) The Claimed Assets;2
(2) Defendants’ relationship (if any) with the Putative Licensors;3
(3) The representations made by Defendants to investors—including (but not limited
to Plaintiffs);4
(4) Defendants’ use of investor fiinds;5
(5) Filing(s) made with state/federal regulatory bodies in connection with Defendants’
offering of securities to investors—including (but not limited to) Plaintiffs;6
(6) The financial condition, organization, and management of Defendants;7 and
(7) A series of allegations and defenses listed in Defendants’ Initial Disclosuress
2
Ex. A, at 1—17 (Defs.’ Resps. to Req. for Prod. Nos. 1—9, 13—15, 20, 23—27, 35—41, 50, 55, 57—61, and 64—73); Ex.
B, at 2—4 (Defs.’ Answers to Interrog. Nos. 1, 5—8, and 12—15).
3
Ex. A, at 1—17 (Defs.’ Resps. to Req. for Prod. Nos. 1—9, 13—16, 20, 36—37, 39—41, 50, 55, 57, 61, 67—73); Ex. B, at
2—4 (Defs.’ Answers to Interrog. Nos. 1, 5—6, 8—10, and 12—15).
4
Ex. A, at 1—17 (Defs.’ Resps. to Req. for Prod. Nos. 1—15, 17—20, 23—48, 50, and 52—75); Ex. B, at 2—4 (Defs’
Answers to Interrog. Nos. 1—9 and 12—15).
5
Ex. A, at 1—17 (Defs.’ Resps. to Req. for Prod. Nos. 1—15, 20—22, 31—35, 48, 50, 52—70, and 72—73); Ex. B, at 2—4
(Defs.’ Answers to Interrog. Nos. 1, 3—8, and 10—15).
6
Ex. A, at 1—17 (Defs.’ Resps. to Req. for Prod. Nos. 1—9, 13—19, 50, 52—55, 57—60, and 71—73); Ex. B, at 2—4 (Defs.’
Answers to Interrog. Nos. 1—2, 5—6, and 12—15).
7
Ex. A, at 1—17 (Defs.’ Resps. to Req. for Prod. Nos. 11—18, 20—22, 28—48, 50, 52—63, and 70—75); Ex. B, at 2—4
(Defs.’ Answers to Interrog. Nos. 1—6 and 8—15).
8
Ex. A, at 1—17 (Defs.’ Resps. to Req. for Prod. Nos. 12, 17—20, 49—51, 55, and 57—75); Ex. B, at 2—4 (Defs.’ Answers
to Interrog. Nos. 1—15).
PLAINTIFFS’
MOTION TO COMPEL - Page 4
These requests are unquestionably relevant to the instant dispute. See Tex. R. CiV. P. 192.3(a)
(noting that a party may seek discovery on any matter that is “relevant to the subject matter of the
pending action” and/or “reasonably calculated to lead to the discovery of admissible evidence”).
In lieu of responding, however, Defendants assert a series of nonsensical objections that they
contend alleviate them of their obligations under the Texas Rules of Civil Procedure.
8. For example, Defendants assert that they are not required to respond to the vast
majority (if any) of Plaintiffs’ Requests because:
Plaintiffs disclosures state they believe “Defendants overstated the strength and
viability of Defendants’ business, prospects for future business, expected growth
and anticipated returns on Plaintiffs’ investments.” These are subjective matters
that depend upon What was known to Defendants at the time of the investments.
Therefore, [these requests are] wholly unnecessary in order to litigate the issues in
this case, and would involve substantial expense . . . .9
Despite Defendants’ claims to the contrary, however, they may not unilaterally declare what they
contend is the scope of relevant discovery. See Tex. R. Civ. P. 192.3 (a), (b). Even so, Defendants
refiise to produce a wide swath of relevant pre and post-investment materials. 1°
9. For example, Defendants refuse to produce any minutes taken during “Board of
Directors’ meetings [] from January l, 2015 through present”—claiming that a request for the
same “seeks irrelevant material and is therefore not reasonably calculated to lead to the discovery
of admissible evidence.”“ However, minutes from Board of Directors meetings, both before and
after Plaintiffs’ initial investment, would provide invaluable insight into (at a minimum): (l) the
operation/management of Defendants; (2) negotiations (if any) with the Putative Licensors; (3) the
9
See Ex. A, at l (Defs.’ General Objections to Pls.’ Req. for Prod); Ex. B, at l (Defs.’ General Objections to Pls.’
Interrogs.)
1°
See, e.g., Ex. A, at 1—17 (Defs.’ General Objections to Pls.’ Req. for Prod, as well as to Reqs. Nos. 1—2, 4—9, 11—
12, 23—27, 35—36, 38—40, 50, 57—73); Ex. B, at 2—4 (Defs.’ General Objections to Pls.’ Interrogs., as well as to Interrog.
Nos. 1—2).
See, e.g., Ex.
11
A, at 13 (Defs.’ Resps. to Req. for Prod. No. 55).
PLAINTIFFS’
MOTION TO COMPEL - Page 5
development (or existence) of the Claimed Assets; (4) representations made to investors regarding
the Defendants, the Putative Licensors, and/or the Claimed Assets; (5) Defendants’ use of investor
12
funds; and/or (6) the basis for (or any corrections made to) Defendants’ claimed valuation. This
is particularly likely as Defendants claim that “the Claimed Assets are the core assets around which
WhamTech has put together a business plan.”13
10. By asserting similarly unfounded objections to the majority of the Requests,
Defendants attempt to “pick and choose” the documents they will produce and/or the custodians
they will consult. For example, in some instances Defendants refuse to even attempt to identify
14
responsive documents or information—claiming that searching more than one computer for
15
responsive documents would impose an undue burden. See Ex. A, at 4—5 (Defs.’ Resps. to Req.
for Prod. Nos. 11—12) (“Subject to these objections and Without waiving same, Defendants will
search the computer of Mark Armstrong for such information pertaining to investment
presentations to Plaintiffs”). In other instances, Defendants assert that they are permitted to
unilaterally select and produce “representative” documents from the universe of responsive
material.“ See Ex. B, at 7—8 (Defs.’ Resps. to Req. for Prod. Nos. 23—27) (“Defendants will
produce representative documents with regard to the subject of this request”), 6 (Defs.’ Resps. to
Req. for Prod. Nos. 17—18) (“For the purposes of this lawsuit, it should be sufficient to examine
12
See id.
See, e.g., Ex.
13
A, at 1—4, 9—10, 12 (Defs.’ Resps. to Req. for Prod. Nos. 1, 4—9, 35—36, 38—40, 50).
14
See Ex. A, at 1—17 (Defs.’ General Objections to Pls.’ Req. for Prod, as well as to Reqs. Nos. 1—2, 4—9, 11—12, 23—
50, 52—73); Ex. B, at 2—4 (Defs.’ General Objections to Pls.’ Interrogs., as well as to Interrog. Nos. 1—2).
15
See also id. at 1—17 (Defs.’ General Objections to Pls.’ Req. for Prod, as well as to Reqs. Nos. 1—2, 4—9, 11—12,
23—50, 52—73).
16
See, e.g., Ex. A, at 1—17 (Defs.’ General Objections to Pls.’ Req. for Prod., as well as to Reqs. Nos. 1—2, 4—9, 11—
12, 23—27, 35—36, 38—40, 50, 57—73); Ex. B, at 2—4 (Defs.’ General Objections to Pls.’ Interrogs., as well as to Interrog.
Nos. 1—2).
PLAINTIFFS’
MOTION TO COMPEL - Page 6
the facts as set forth in the subscription documents to determine how the offering should be legally
categorized”).
11. First, Defendants’ claim that searching more than one computer would impose an
undue burden is outlandish—particularly as Defendants claim that they are a technology company
that specializes in the development of “security-centric distributed Virtual data, master data and
graph data management, and analytics technology software products.” Indeed, assuming the
accuracy of Defendants’ various representations, Defendants possess a unique expertise that
should allow them to review and produce responsive documents more-efficiently than the vast
majority of parties appearing before the Court.
12. Similarly, Defendants may not unilaterally appoint themselves the final arbiter of
“representative documents” that they would like to produce. Instead, Defendants must produce all
responsive materials/ information within their possession, custody, and/or control. See Tex. R. Civ.
P. 192.3 (a), (b).
13. Based on the foregoing, Plaintiffs respectfully request that the Court: (l) hold a
hearing pursuant to Texas Rule of Civil Procedure 193.4 on Defendants’ objections to Request for
Production Nos. 1 through 2 and 4 through 75, as well as Interrogatories Nos. l through 3 and 5
through 8; (2) overrule the baseless objections asserted by Defendants to the Requests and (3)
compel Defendants to appropriately respond to the same.
IV.
WHEREFORE, Plaintiffs request and pray that the Court hold a hearing pursuant to Texas
Rule of Civil Procedure 193.4 and thereafter issue an order (1) overruling Defendants’ objections
to the Requests, (2) requiring Defendants to supplement their document production, (3) requiring
WhamTech to fully respond to Gamco Properties, LLC’s First Set of Interrogatories.
PLAINTIFFS’
MOTION TO COMPEL - Page 7
Respectfully submitted,
KESSLER & COLLINS, PC
By: /s/ Daniel P. Callahan
DANIEL P. CALLAHAN
State Bar No. 03648700
STEPHEN J. HUSCHKA
State Bar No. 24097861
dpc@kesslercollins.com
shuschka@kesslercollins.com
2100 Ross Avenue, Suite 750
Dallas, Texas 75201
(214) 379-0722 - Office
(214) 373-4714 - Fax
ATTORNEYS FOR PLAINTIFFS
CERTIFICATE OF SERVICE
I hereby certify that a true copy of the foregoing has been served on all counsel of record
via the E-File Texas electronic filing system on this 21st day of June, 2022 in accordance with
the Texas Rules of Civil Procedure.
/s/ Stephen J. Huschka
STEPHEN J. HUSCHKA
CERTIFICATE OF CONFERENCE
I certify that counsel for movant and counsel for respondent have personally conducted a
conference at which there was a substantive discussion of every item presented to the Court in this
motion and despite best efforts the counsel have not been able to resolve those matters presented.
/s/ Stephen J. Huschka
STEPHEN J. HUSCHKA
PLAINTIFFS’
MOTION TO COMPEL - Page 8
Automated Certificate of eService
This automated certificate of service was created by the efiling system.
The filer served this document via email generated by the efiling system
on the date and to the persons listed below. The rules governing
certificates of service have not changed. Filers must still provide a
certificate of service that complies with all applicable rules.
Gaile Willard on behalf of Stephen Huschka
Bar No. 24097861
gld@kesslercollins.com
Envelope ID: 65624252
Status as of 6/22/2022 9:43 AM CST
Associated Case Party: WHAM TECH, INC.
Name BarNumber Email TimestampSubmitted Status
Dennis Roossien droossien@munsch.com 6/21/2022 11:49:54 AM SENT
Lisa Garrett lgarrett@munsch.com 6/21/2022 11:49:54 AM SENT
Sharon BLACKSTOCK sblackstock@munsch.com 6/21/2022 11:49:54 AM SENT
Dennis L.Roossien droossien@munsch.com 6/21/2022 11:49:54 AM SENT
Case Contacts
Name BarNumber Email TimestampSubmitted Status
Daniel P. Callahan 3648700 dpc@kesslercol|ins.com 6/21/2022 11:49:54 AM SENT
Francine Ly fly@dallascourts.org 6/21/2022 11:49:54 AM SENT
Gaile Willard gwillard@kesslercollins.com 6/21/2022 11:49:54 AM SENT
Stephen JHuschka shuschka@kesslercollins.com 6/21/2022 11:49:54 AM SENT
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FILED 6/21/2022 11:49 AM FELICIA PITRE DISTRICT CLERK DALLAS CO., TEXAS Marissa Gomez DEPUTY CAUSE NO. DC-21-14068 GAMCO PROPERTIES, LLC, § IN THE DISTRICT COURT GAMVEST, LP and LESA GAMBLE, § § Plaintiffs, § § V. § DALLAS COUNTY, TEXAS § WHAM TECH, INC. and WHAM § TECHNOLOGIES, INC., § § Defendants. § 134TH JUDICIAL DISTRICT PLAINTIFFS’ MOTION TO COMPEL Pursuant to Texas Rules of Civil Procedure 192.6 and 193.4, Plaintiffsl respectfully request that the Court overrule a series of baseless objections asserted by Defendants Wham Tech, Inc. (“WhamTech”) and Wham Technologies, Inc. (collectively, “Defendants”) to Plaintiffs’ First Set of Requests for Production and Interrogatories (collectively, the “Requests”) and compel Defendants to appropriately respond to the same. In support, Plaintiffs would show: I. 1. By this motion, Plaintiffs request that the Court compel Defendants to meaningfully respond to the pending Requests. Indeed, in lieu of complying with their obligations under the Texas Rules of Civil Procedure, Defendants instead: (1) seek to artificially restrict the scope of discoverable information and (2) refuse to even attempt to identify responsive documents or information—claiming that searching more than one computer for responsive documents would impose an undue burden. Despite Defendants’ claims to the contrary, however, they may not unilaterally “pick-and-choose” the Requests to which they are willing to respond and/or the 1 As used herein, “Plaintiffs” shall mean and refer to Plaintiffs Gamco Properties, LLC; Gamvest, LP; and Lesa Gamble, collectively. PLAINTIFFS’ MOTION TO COMPEL - Page 1 custodians they are willing to consult. Instead, Defendants must meet their obligations under the Texas Rules of Civil Procedure—just like any other party appearing before the Court. 2. Based on the foregoing, and as set forth in further detail below, Plaintiffs respectfully request that the Court: (1) overrule Defendants’ objections to the Requests, (2) compel Defendants to produce documents responsive Plaintiffs’ First Set of Requests for Production and (3) compel WhamTech to answer Gamco Properties, LLC’s First Set of Interrogatories. II. 3. It is well-established that 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. McIlhany, 798 S.W.2d 550, 555 (Tex. 1990). Discovery may be obtained about any matter relevant to the subject matter of the case and the claims and defenses at issue therein. See Tex. R. Civ. P. 192.3; see also In re CSX Corp, 124 S.W.3d 149, 152 (Tex. 2003) (orig. proceeding). Information is discoverable so long as it appears “reasonably calculated to lead to the discovery of admissible evidence.” Id. At the very minimum, a party must be allowed to inquire into the facts underlying its opponent’s case. See Hill and Griffith C0. v. Bryant, 139 S.W.3d 688, 695 (Tex. App .—Tyler 2004, pet. denied). The Texas Rules of Civil Procedure limit the ability of a party to resist discovery and place the burden of compliance squarely on the resisting party. See Tex. R. Civ. P. 193.2. III. 4. By this lawsuit, Plaintiffs seek recompense for Defendants’ violations of state and federal securities laws. Indeed, to induce Plaintiffs’ investment in WhamTech, Defendants made a series of misrepresentations concerning its strength, Viability, and (even) existence. For example, Defendants claimed that WhamTech “own[ed] certain software and associated patents and trade secrets” that were exceptionally marketable/valuable (the “Claimed Assets”). Defendants further PLAINTIFFS’ MOTION TO COMPEL — Page 2 claimed that they were in active negotiations with several large companies concerning the sale/licensing of the Claimed Assets—including (but not limited to): (1) Northrop Grumman Corporation; (2) Magellan Health, Inc.; (3) Intel Corporation; (4) General Dynamics Corporation, (5) United Healthcare, Inc. ; (6) Mastercard, Inc.; (7) Kaiser Permanente; and (8) PayPal Holdings, Inc. (collectively, the “Putative Licensors”). 5. Defendants also sent Plaintiffs “Pipeline Projections” at various times that purported to show the revenue that would result from Defendants’ relationship with the Putative Licensors. Therein, Defendants claimed that WhamTech would realize $23,512,500 and $72,284,250 in revenue in 2018 and 2019, respectively—resulting in an overall “company valuation” of $867,411,000. Defendants further represented that this would create a “12.59[] Multiple on Original Share Price.” Unfortunately, however, it now appears that these representations—as well as several others—were false. In fact, Defendants are seemingly unwilling (or unable) to produce any evidence that the Claimed Assets ever existed—let alone that the Putative Licensors were Willing to pay millions of dollars to use or acquire them. 6. Instead, it appears that Defendants are mere shell entities created for the sole purpose of defrauding investors, as well as siphoning money to a core group of “employees.” Indeed, despite Defendants’ bullish representations that WhamTech would realize an overall company valuation in excess of $867 million, WhamTech’s financial records reveal that it has experienced a retained earnings deficit of (at least) $73,160,060. Said another way, WhamTech has (at least) $73 million more in cumulative losses than it has in gains. Even so, WhamTech’s balance sheet indicates that it is (somehow) paying its “employees” between $2.3 and $2.7 million in research and development costs year-over—year—without realizing any significant revenue. This has left the company with exceeding little cash on hand. For example, WhamTech’s PLAINTIFFS’ MOTION TO COMPEL - Page 3 consolidated balance sheet indicates that it had $2,241 in cash on December 31, 2021. The dire financial condition of WhamTech is made all the more concerning by the fact that its balance sheet also reveals that Defendants raised more than $54 million from unsuspecting investors—like Plaintiffs. 7. To investigate the extent of Defendants’ varied misrepresentations, Plaintiffs propounded written discovery that requested documents and information related to: (1) The Claimed Assets;2 (2) Defendants’ relationship (if any) with the Putative Licensors;3 (3) The representations made by Defendants to investors—including (but not limited to Plaintiffs);4 (4) Defendants’ use of investor fiinds;5 (5) Filing(s) made with state/federal regulatory bodies in connection with Defendants’ offering of securities to investors—including (but not limited to) Plaintiffs;6 (6) The financial condition, organization, and management of Defendants;7 and (7) A series of allegations and defenses listed in Defendants’ Initial Disclosuress 2 Ex. A, at 1—17 (Defs.’ Resps. to Req. for Prod. Nos. 1—9, 13—15, 20, 23—27, 35—41, 50, 55, 57—61, and 64—73); Ex. B, at 2—4 (Defs.’ Answers to Interrog. Nos. 1, 5—8, and 12—15). 3 Ex. A, at 1—17 (Defs.’ Resps. to Req. for Prod. Nos. 1—9, 13—16, 20, 36—37, 39—41, 50, 55, 57, 61, 67—73); Ex. B, at 2—4 (Defs.’ Answers to Interrog. Nos. 1, 5—6, 8—10, and 12—15). 4 Ex. A, at 1—17 (Defs.’ Resps. to Req. for Prod. Nos. 1—15, 17—20, 23—48, 50, and 52—75); Ex. B, at 2—4 (Defs’ Answers to Interrog. Nos. 1—9 and 12—15). 5 Ex. A, at 1—17 (Defs.’ Resps. to Req. for Prod. Nos. 1—15, 20—22, 31—35, 48, 50, 52—70, and 72—73); Ex. B, at 2—4 (Defs.’ Answers to Interrog. Nos. 1, 3—8, and 10—15). 6 Ex. A, at 1—17 (Defs.’ Resps. to Req. for Prod. Nos. 1—9, 13—19, 50, 52—55, 57—60, and 71—73); Ex. B, at 2—4 (Defs.’ Answers to Interrog. Nos. 1—2, 5—6, and 12—15). 7 Ex. A, at 1—17 (Defs.’ Resps. to Req. for Prod. Nos. 11—18, 20—22, 28—48, 50, 52—63, and 70—75); Ex. B, at 2—4 (Defs.’ Answers to Interrog. Nos. 1—6 and 8—15). 8 Ex. A, at 1—17 (Defs.’ Resps. to Req. for Prod. Nos. 12, 17—20, 49—51, 55, and 57—75); Ex. B, at 2—4 (Defs.’ Answers to Interrog. Nos. 1—15). PLAINTIFFS’ MOTION TO COMPEL - Page 4 These requests are unquestionably relevant to the instant dispute. See Tex. R. CiV. P. 192.3(a) (noting that a party may seek discovery on any matter that is “relevant to the subject matter of the pending action” and/or “reasonably calculated to lead to the discovery of admissible evidence”). In lieu of responding, however, Defendants assert a series of nonsensical objections that they contend alleviate them of their obligations under the Texas Rules of Civil Procedure. 8. For example, Defendants assert that they are not required to respond to the vast majority (if any) of Plaintiffs’ Requests because: Plaintiffs disclosures state they believe “Defendants overstated the strength and viability of Defendants’ business, prospects for future business, expected growth and anticipated returns on Plaintiffs’ investments.” These are subjective matters that depend upon What was known to Defendants at the time of the investments. Therefore, [these requests are] wholly unnecessary in order to litigate the issues in this case, and would involve substantial expense . . . .9 Despite Defendants’ claims to the contrary, however, they may not unilaterally declare what they contend is the scope of relevant discovery. See Tex. R. Civ. P. 192.3 (a), (b). Even so, Defendants refiise to produce a wide swath of relevant pre and post-investment materials. 1° 9. For example, Defendants refuse to produce any minutes taken during “Board of Directors’ meetings [] from January l, 2015 through present”—claiming that a request for the same “seeks irrelevant material and is therefore not reasonably calculated to lead to the discovery of admissible evidence.”“ However, minutes from Board of Directors meetings, both before and after Plaintiffs’ initial investment, would provide invaluable insight into (at a minimum): (l) the operation/management of Defendants; (2) negotiations (if any) with the Putative Licensors; (3) the 9 See Ex. A, at l (Defs.’ General Objections to Pls.’ Req. for Prod); Ex. B, at l (Defs.’ General Objections to Pls.’ Interrogs.) 1° See, e.g., Ex. A, at 1—17 (Defs.’ General Objections to Pls.’ Req. for Prod, as well as to Reqs. Nos. 1—2, 4—9, 11— 12, 23—27, 35—36, 38—40, 50, 57—73); Ex. B, at 2—4 (Defs.’ General Objections to Pls.’ Interrogs., as well as to Interrog. Nos. 1—2). See, e.g., Ex. 11 A, at 13 (Defs.’ Resps. to Req. for Prod. No. 55). PLAINTIFFS’ MOTION TO COMPEL - Page 5 development (or existence) of the Claimed Assets; (4) representations made to investors regarding the Defendants, the Putative Licensors, and/or the Claimed Assets; (5) Defendants’ use of investor 12 funds; and/or (6) the basis for (or any corrections made to) Defendants’ claimed valuation. This is particularly likely as Defendants claim that “the Claimed Assets are the core assets around which WhamTech has put together a business plan.”13 10. By asserting similarly unfounded objections to the majority of the Requests, Defendants attempt to “pick and choose” the documents they will produce and/or the custodians they will consult. For example, in some instances Defendants refuse to even attempt to identify 14 responsive documents or information—claiming that searching more than one computer for 15 responsive documents would impose an undue burden. See Ex. A, at 4—5 (Defs.’ Resps. to Req. for Prod. Nos. 11—12) (“Subject to these objections and Without waiving same, Defendants will search the computer of Mark Armstrong for such information pertaining to investment presentations to Plaintiffs”). In other instances, Defendants assert that they are permitted to unilaterally select and produce “representative” documents from the universe of responsive material.“ See Ex. B, at 7—8 (Defs.’ Resps. to Req. for Prod. Nos. 23—27) (“Defendants will produce representative documents with regard to the subject of this request”), 6 (Defs.’ Resps. to Req. for Prod. Nos. 17—18) (“For the purposes of this lawsuit, it should be sufficient to examine 12 See id. See, e.g., Ex. 13 A, at 1—4, 9—10, 12 (Defs.’ Resps. to Req. for Prod. Nos. 1, 4—9, 35—36, 38—40, 50). 14 See Ex. A, at 1—17 (Defs.’ General Objections to Pls.’ Req. for Prod, as well as to Reqs. Nos. 1—2, 4—9, 11—12, 23— 50, 52—73); Ex. B, at 2—4 (Defs.’ General Objections to Pls.’ Interrogs., as well as to Interrog. Nos. 1—2). 15 See also id. at 1—17 (Defs.’ General Objections to Pls.’ Req. for Prod, as well as to Reqs. Nos. 1—2, 4—9, 11—12, 23—50, 52—73). 16 See, e.g., Ex. A, at 1—17 (Defs.’ General Objections to Pls.’ Req. for Prod., as well as to Reqs. Nos. 1—2, 4—9, 11— 12, 23—27, 35—36, 38—40, 50, 57—73); Ex. B, at 2—4 (Defs.’ General Objections to Pls.’ Interrogs., as well as to Interrog. Nos. 1—2). PLAINTIFFS’ MOTION TO COMPEL - Page 6 the facts as set forth in the subscription documents to determine how the offering should be legally categorized”). 11. First, Defendants’ claim that searching more than one computer would impose an undue burden is outlandish—particularly as Defendants claim that they are a technology company that specializes in the development of “security-centric distributed Virtual data, master data and graph data management, and analytics technology software products.” Indeed, assuming the accuracy of Defendants’ various representations, Defendants possess a unique expertise that should allow them to review and produce responsive documents more-efficiently than the vast majority of parties appearing before the Court. 12. Similarly, Defendants may not unilaterally appoint themselves the final arbiter of “representative documents” that they would like to produce. Instead, Defendants must produce all responsive materials/ information within their possession, custody, and/or control. See Tex. R. Civ. P. 192.3 (a), (b). 13. Based on the foregoing, Plaintiffs respectfully request that the Court: (l) hold a hearing pursuant to Texas Rule of Civil Procedure 193.4 on Defendants’ objections to Request for Production Nos. 1 through 2 and 4 through 75, as well as Interrogatories Nos. l through 3 and 5 through 8; (2) overrule the baseless objections asserted by Defendants to the Requests and (3) compel Defendants to appropriately respond to the same. IV. WHEREFORE, Plaintiffs request and pray that the Court hold a hearing pursuant to Texas Rule of Civil Procedure 193.4 and thereafter issue an order (1) overruling Defendants’ objections to the Requests, (2) requiring Defendants to supplement their document production, (3) requiring WhamTech to fully respond to Gamco Properties, LLC’s First Set of Interrogatories. PLAINTIFFS’ MOTION TO COMPEL - Page 7 Respectfully submitted, KESSLER & COLLINS, PC By: /s/ Daniel P. Callahan DANIEL P. CALLAHAN State Bar No. 03648700 STEPHEN J. HUSCHKA State Bar No. 24097861 dpc@kesslercollins.com shuschka@kesslercollins.com 2100 Ross Avenue, Suite 750 Dallas, Texas 75201 (214) 379-0722 - Office (214) 373-4714 - Fax ATTORNEYS FOR PLAINTIFFS CERTIFICATE OF SERVICE I hereby certify that a true copy of the foregoing has been served on all counsel of record via the E-File Texas electronic filing system on this 21st day of June, 2022 in accordance with the Texas Rules of Civil Procedure. /s/ Stephen J. Huschka STEPHEN J. HUSCHKA CERTIFICATE OF CONFERENCE I certify that counsel for movant and counsel for respondent have personally conducted a conference at which there was a substantive discussion of every item presented to the Court in this motion and despite best efforts the counsel have not been able to resolve those matters presented. /s/ Stephen J. Huschka STEPHEN J. HUSCHKA PLAINTIFFS’ MOTION TO COMPEL - Page 8 Automated Certificate of eService This automated certificate of service was created by the efiling system. The filer served this document via email generated by the efiling system on the date and to the persons listed below. The rules governing certificates of service have not changed. Filers must still provide a certificate of service that complies with all applicable rules. Gaile Willard on behalf of Stephen Huschka Bar No. 24097861 gld@kesslercollins.com Envelope ID: 65624252 Status as of 6/22/2022 9:43 AM CST Associated Case Party: WHAM TECH, INC. Name BarNumber Email TimestampSubmitted Status Dennis Roossien droossien@munsch.com 6/21/2022 11:49:54 AM SENT Lisa Garrett lgarrett@munsch.com 6/21/2022 11:49:54 AM SENT Sharon BLACKSTOCK sblackstock@munsch.com 6/21/2022 11:49:54 AM SENT Dennis L.Roossien droossien@munsch.com 6/21/2022 11:49:54 AM SENT Case Contacts Name BarNumber Email TimestampSubmitted Status Daniel P. Callahan 3648700 dpc@kesslercol|ins.com 6/21/2022 11:49:54 AM SENT Francine Ly fly@dallascourts.org 6/21/2022 11:49:54 AM SENT Gaile Willard gwillard@kesslercollins.com 6/21/2022 11:49:54 AM SENT Stephen JHuschka shuschka@kesslercollins.com 6/21/2022 11:49:54 AM SENT