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DOCKET NO: AAN-CV-18-6031256-S : SUPERIOR COURT
DEFOREST W. SMITH, et al. : J.D. OF ANSONIA/MILFORD
v. : AT MILFORD
H. PEARCE REAL ESTATE COMPANY, INC. : JANUARY 21, 2022
OBJECTIONS TO PLAINTIFF’S REQUESTS FOR PRODUCTION
The defendant hereby gives notice that it has filed objections to the following
Requests for Production set forth in the Corrected Re-Notice of Deposition of Barbara L.
Pearce, and the Corrected Notices of Deposition of John Bergin and Carl Russell, all
dated December 27, 2021. Because the requests for production in each notice are
identical, the defendant attaches only the Corrected Re-Notice of Deposition of Barbara
L. Pearce for the court’s reference as Exhibit 1.
REQUESTS FOR PRODUCTION
1. The following documents for the properties identified in Schedule 1.1(a) to the
Asset Purchase Agreement between H. PEARCE REAL ESTATE COMPANY, INC.,
DEFOREST INDUSTRIES, INC. and DEFOREST W. SMITH, a copy of which is
appended hereto as Exhibit 1, for the period of time from from June 19, 2012 to the
present, including, but not limited to all:
a. checks, cancelled checks, payments, and communications regarding same;
b. commissions, including amounts received and communications regarding
same;
c. documents concerning how commissions were calculated;
d. documents concerning the proposed calculation of commissions;
e. the division of commissions between the defendant and any other person
whether that person was affiliated with the defendant in anyway or not, and
communications regarding same;
f. the proposed division of commissions between the defendant and any other
person whether that person was affiliated with the defendant in anyway or not,
and communications regarding same;
g. internal financial accounting and/or ledger entries: and
h. listing agreements, and extensions or modifications thereto.
OBJECTION: The defendant objects to this request on the grounds that it
is unduly broad, overly burdensome, general, and vague, and it seeks information
that is irrelevant and immaterial to the plaintiff’s claims. This action was
commenced in 2018 by the filing of a Complaint in which the plaintiff alleged he
was entitled to bonus compensation for some unidentified transactions. To date,
the plaintiff has identified four (4) properties for which he claims he did not
receive proper compensation: 126 Boston Post Road, Milford; 323 Cromwell
Avenue, Rocky Hill; 1947 Center Groton Road, Ledyard; and 9 Depot Street,
Milford. In the request for production of documents attached to the notice of
deposition, plaintiff seeks discovery concerning seventy-two (72) properties. To
date, no claims have been raised concerning the vast majority of these properties
in the pleadings or in responses to discovery requests. As such, this is the
quintessential “fishing expedition,” into the defendant’s business which should
not be permitted. Moreover, the plaintiff apparently claims that he had at least
some involvement with all of these other properties yet he apparently does not
know whether closings occurred, leases were executed or renewed, or whether
any commissions were paid in connection with these properties. Some of the
agreements identified in Schedule 1.1(a) appear to have been entered into as long
ago as 2008, and many of these purported claims would appear to be barred by a
statute of limitations. In addition, the information provided by the plaintiff
concerning many of the properties listed under “Seller Agreements” is not
sufficient to enable the defendant to search its records. Notwithstanding and
without waiving this objection, the defendant has previously produced
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documents kept in the ordinary course of business by its accounting department
concerning the properties and any commissions it received that are listed on the
3rd and 4th pages of Schedule 1.1(a) under “Excluded Agreements.” Those
documents previously produced were marked as HP001-HP082 and were
produced on January 19, 2020, more than two years ago. This court should not
indulge the plaintiff’s mere suspicion that he did not receive commissions for any
other property transactions. This case is scheduled for trial on March 17, 2022,
and the defendant still does not know exactly what the plaintiff’s claims are
because they have never been specifically identified in the pleadings, which was
one of the grounds upon which the defendant moved to strike certain counts in
the Complaint more than three (3) years ago. See, Motion to Strike, dated January
16, 2019 (entry no. 102.00).
2. To the extent not produced in response to request #1 above, all other documents
and communications concerning the properties identified in request #1 above for the
period of time specified in said request.
OBJECTION: The defendant incorporates by reference it’s objections to
request #1 as its objections to request #2.
3. All documents and communications concerning the interpretation of Article II,
paragraph 2.1 of the Asset Purchase Agreement between the parties to this litigation.
OBJECTION: The defendant objects to this request on the grounds that it
is unduly broad, burdensome, general, and vague, and it seeks information that is
protected from discovery by the attorney-client privilege, attorney work product
doctrine, and/or Practice Book § 13-3. Moreover, this request is identical to a
previous request to which an objection was filed on January 21, 2020.
Notwithstanding and without waiving this objection, the defendant has produced
3
documents kept in the ordinary course of business by its accounting department
concerning these properties and any commissions it received, marked as HP001-
HP082.
4. All documents and communications concerning the application of Article II,
paragraph 2.1 of the Asset Purchase Agreement between the parties to this litigation.
OBJECTION: This request is identical to a previous request to which an
objection was filed on January 21, 2020. The defendant objects to this request on
the grounds that it appears to be repetitive of request #3, and it is unduly broad,
burdensome, general, and vague, and it seeks information that is protected from
discovery by the attorney-client privilege, attorney work product doctrine, and/or
Practice Book § 13-3. Notwithstanding and without waiving this objection, the
defendant has produced documents kept in the ordinary course of business by
its accounting department concerning these properties and any commissions it
received, marked as HP001-HP082.
5. All documents and communications concerning payments made pursuant to
Article II, paragraph 2.1 of the Asset Purchase Agreement between the parties to this
litigation.
OBJECTION: This request is identical to a previous request to which an
objection was filed on January 21, 2020. The defendant objects to this request on
the grounds that it appears to be repetitive of requests #1, 2, 3 and 4, and it is
unduly broad, burdensome, general, and vague, and it seeks information that is
protected from discovery by the attorney-client privilege, attorney work product
doctrine, and/or Practice Book § 13-3. Notwithstanding and without waiving this
objection, the defendant has produced documents kept in the ordinary course of
4
business by its accounting department concerning these properties and any
commissions it received, marked as HP001-HP082.
6. The required privilege log within the time specified by law for all information
withheld under a claim of privilege or work product. Practice Book § 13-3(d).
H. PEARCE REAL ESTATE COMPANY, INC.
By: /s/ Peter T. Fay
Peter T. Fay
NEUBERT, PEPE & MONTEITH, P.C.
195 Church Street, 13th Floor
New Haven, CT 06510
Tel: (203) 821-2000
Fax: (203) 821-2009
Juris. No. 407996
pfay@npmlaw.com
CERTIFICATION
THIS IS TO CERTIFY THAT a copy of the foregoing was sent by electronic mail on
the 21st day of January, 2022, to the following counsel of record and that written
consent has been received from all counsel receiving electronic delivery:
John-Henry M. Steele
DEY SMITH STEELE, LLC
9 Depot Street, 2nd Floor
Milford, CT 06460
jhs@deysmith.com
/s/ Peter T. Fay
Peter T. Fay
NEUBERT, PEPE & MONTEITH, P.C.
5
EXHIBIT 1
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DOCKET NO.: AAN-CV16-6031256-S : SUPERIOR COURT
DEFOREST W. SMITH and
DEFOREST INDUSTRIES, INC. : J.D. OF ANSONIA / MILFORD
V. : AT MILFORD
H. PEARCE REAL ESTATE :
COMPANY, INC. : DECEMBER 27, 2021
CORRECED SECOND RE-NOTICE OF DEPOSITION
PLEASE TAKE NOTICE that the plaintiffs will take the deposition of the
defendant’s President, BARBARA L. PEARCE, commencing at 10:00 AM on
Wednesday, February 2, 2022, at DEY SMITH STEELE, LLC, 9 Depot Street, 2nd
Floor Milford, CT 06460, before Christine Mannix, RPR, LSR, or other or other
competent authority authorized to administer oaths and take testimony. Notice is further
given that the deponent is required to produce at the time of said deposition all of the
documents, communications, information and tangible things set forth in Schedule A
included herewith.
The deposition will continue from day-to-day until complete.
THE PLAINTIFFS,
BY: /s/ John-Henry M. Steele (#404743)
DEY SMITH STEELE, LLC (#412130)
9 Depot Street, 2nd Floor
Milford, CT 06460
Tel.: (203) 882-3351
Fax: (203) 882-3359
Email: jhs@deysmith.com
Schedule A
To the Notice of Deposition for Barbara L. Pearce
Smith, et al. v. H. Pearce Real Estate Co., Inc., AAN-CV16-6031256-S
1. The following documents for the properties identified in Schedule 1.1(a) to
the Asset Purchase Agreement between H. PEARCE REAL ESTATE COMPANY, INC.,
DEFOREST INDUSTRIES, INC., and DEFOREST W. SMITH, a copy of which is
appended hereto as Exhibit 1, for the period of time from June 19, 2012 to the present,
including, but not limited to all:
a. checks, cancelled checks, payments, and communications regarding
same;
b. commissions, including amounts received and communications regarding
same;
c. documents concerning how commissions were calculated;
d. documents concerning the proposed calculation of commissions;
e. the division of commissions between the defendant and any other person
whether that person was affiliated with the defendant in anyway or not,
and communications regarding same;
f. the proposed division of commissions between the defendant and any
other person whether that person was affiliated with the defendant in
anyway or not, and communications regarding same;
g. internal financial accounting and/or ledger entries; and
h. listing agreements, and extensions or modifications thereto.
2. To the extent not produced in response to request #1 above, all other
documents and communications concerning the properties identified in request #1
above for the period of time specified in said request.
3. All documents and communications concerning the interpretation of Article
II, paragraph 2.1 of the Asset Purchase Agreement between the parties to this litigation.
4. All documents and communications concerning the application of Article II,
paragraph 2.1 of the Asset Purchase Agreement between the parties to this litigation.
5. All documents and communications concerning payments made pursuant
to Article II, paragraph 2.1 of the Asset Purchase Agreement between the parties to this
litigation.
6. The required privilege log within the time specified by law for all
information withheld under a claim of privilege or work product. Practice Book § 13-3(d).
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CERTIFICATION
I certify that a copy of the above was or will immediately be mailed or delivered
electronically or non-electronically on Monday, December 27, 2021, to all counsel and
self-represented parties of record, and that written consent for electronic delivery was
received from all counsel and self-represented parties of record who were or will
immediately be electronically served.
Peter T. Fay, Esq.
Neubert, Pepe & Monteith, P.C.
195 Church Street, 13th Floor
New Haven, CT 06510
Tel.: 203.821.2000
Fax: 203.821.2009
E-mail: PFay@npmlaw.com
/s/ John-Henry M. Steele (#404743)
3
Exhibit 1
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DOCKET NO: AAN-CV-18-6031256-S : SUPERIOR COURT DEFOREST W. SMITH, et al. : J.D. OF ANSONIA/MILFORD v. : AT MILFORD H. PEARCE REAL ESTATE COMPANY, INC. : JANUARY 21, 2022 OBJECTIONS TO PLAINTIFF’S REQUESTS FOR PRODUCTION The defendant hereby gives notice that it has filed objections to the following Requests for Production set forth in the Corrected Re-Notice of Deposition of Barbara L. Pearce, and the Corrected Notices of Deposition of John Bergin and Carl Russell, all dated December 27, 2021. Because the requests for production in each notice are identical, the defendant attaches only the Corrected Re-Notice of Deposition of Barbara L. Pearce for the court’s reference as Exhibit 1. REQUESTS FOR PRODUCTION 1. The following documents for the properties identified in Schedule 1.1(a) to the Asset Purchase Agreement between H. PEARCE REAL ESTATE COMPANY, INC., DEFOREST INDUSTRIES, INC. and DEFOREST W. SMITH, a copy of which is appended hereto as Exhibit 1, for the period of time from from June 19, 2012 to the present, including, but not limited to all: a. checks, cancelled checks, payments, and communications regarding same; b. commissions, including amounts received and communications regarding same; c. documents concerning how commissions were calculated; d. documents concerning the proposed calculation of commissions; e. the division of commissions between the defendant and any other person whether that person was affiliated with the defendant in anyway or not, and communications regarding same; f. the proposed division of commissions between the defendant and any other person whether that person was affiliated with the defendant in anyway or not, and communications regarding same; g. internal financial accounting and/or ledger entries: and h. listing agreements, and extensions or modifications thereto. OBJECTION: The defendant objects to this request on the grounds that it is unduly broad, overly burdensome, general, and vague, and it seeks information that is irrelevant and immaterial to the plaintiff’s claims. This action was commenced in 2018 by the filing of a Complaint in which the plaintiff alleged he was entitled to bonus compensation for some unidentified transactions. To date, the plaintiff has identified four (4) properties for which he claims he did not receive proper compensation: 126 Boston Post Road, Milford; 323 Cromwell Avenue, Rocky Hill; 1947 Center Groton Road, Ledyard; and 9 Depot Street, Milford. In the request for production of documents attached to the notice of deposition, plaintiff seeks discovery concerning seventy-two (72) properties. To date, no claims have been raised concerning the vast majority of these properties in the pleadings or in responses to discovery requests. As such, this is the quintessential “fishing expedition,” into the defendant’s business which should not be permitted. Moreover, the plaintiff apparently claims that he had at least some involvement with all of these other properties yet he apparently does not know whether closings occurred, leases were executed or renewed, or whether any commissions were paid in connection with these properties. Some of the agreements identified in Schedule 1.1(a) appear to have been entered into as long ago as 2008, and many of these purported claims would appear to be barred by a statute of limitations. In addition, the information provided by the plaintiff concerning many of the properties listed under “Seller Agreements” is not sufficient to enable the defendant to search its records. Notwithstanding and without waiving this objection, the defendant has previously produced 2 documents kept in the ordinary course of business by its accounting department concerning the properties and any commissions it received that are listed on the 3rd and 4th pages of Schedule 1.1(a) under “Excluded Agreements.” Those documents previously produced were marked as HP001-HP082 and were produced on January 19, 2020, more than two years ago. This court should not indulge the plaintiff’s mere suspicion that he did not receive commissions for any other property transactions. This case is scheduled for trial on March 17, 2022, and the defendant still does not know exactly what the plaintiff’s claims are because they have never been specifically identified in the pleadings, which was one of the grounds upon which the defendant moved to strike certain counts in the Complaint more than three (3) years ago. See, Motion to Strike, dated January 16, 2019 (entry no. 102.00). 2. To the extent not produced in response to request #1 above, all other documents and communications concerning the properties identified in request #1 above for the period of time specified in said request. OBJECTION: The defendant incorporates by reference it’s objections to request #1 as its objections to request #2. 3. All documents and communications concerning the interpretation of Article II, paragraph 2.1 of the Asset Purchase Agreement between the parties to this litigation. OBJECTION: The defendant objects to this request on the grounds that it is unduly broad, burdensome, general, and vague, and it seeks information that is protected from discovery by the attorney-client privilege, attorney work product doctrine, and/or Practice Book § 13-3. Moreover, this request is identical to a previous request to which an objection was filed on January 21, 2020. Notwithstanding and without waiving this objection, the defendant has produced 3 documents kept in the ordinary course of business by its accounting department concerning these properties and any commissions it received, marked as HP001- HP082. 4. All documents and communications concerning the application of Article II, paragraph 2.1 of the Asset Purchase Agreement between the parties to this litigation. OBJECTION: This request is identical to a previous request to which an objection was filed on January 21, 2020. The defendant objects to this request on the grounds that it appears to be repetitive of request #3, and it is unduly broad, burdensome, general, and vague, and it seeks information that is protected from discovery by the attorney-client privilege, attorney work product doctrine, and/or Practice Book § 13-3. Notwithstanding and without waiving this objection, the defendant has produced documents kept in the ordinary course of business by its accounting department concerning these properties and any commissions it received, marked as HP001-HP082. 5. All documents and communications concerning payments made pursuant to Article II, paragraph 2.1 of the Asset Purchase Agreement between the parties to this litigation. OBJECTION: This request is identical to a previous request to which an objection was filed on January 21, 2020. The defendant objects to this request on the grounds that it appears to be repetitive of requests #1, 2, 3 and 4, and it is unduly broad, burdensome, general, and vague, and it seeks information that is protected from discovery by the attorney-client privilege, attorney work product doctrine, and/or Practice Book § 13-3. Notwithstanding and without waiving this objection, the defendant has produced documents kept in the ordinary course of 4 business by its accounting department concerning these properties and any commissions it received, marked as HP001-HP082. 6. The required privilege log within the time specified by law for all information withheld under a claim of privilege or work product. Practice Book § 13-3(d). H. PEARCE REAL ESTATE COMPANY, INC. By: /s/ Peter T. Fay Peter T. Fay NEUBERT, PEPE & MONTEITH, P.C. 195 Church Street, 13th Floor New Haven, CT 06510 Tel: (203) 821-2000 Fax: (203) 821-2009 Juris. No. 407996 pfay@npmlaw.com CERTIFICATION THIS IS TO CERTIFY THAT a copy of the foregoing was sent by electronic mail on the 21st day of January, 2022, to the following counsel of record and that written consent has been received from all counsel receiving electronic delivery: John-Henry M. Steele DEY SMITH STEELE, LLC 9 Depot Street, 2nd Floor Milford, CT 06460 jhs@deysmith.com /s/ Peter T. Fay Peter T. Fay NEUBERT, PEPE & MONTEITH, P.C. 5 EXHIBIT 1 6 DOCKET NO.: AAN-CV16-6031256-S : SUPERIOR COURT DEFOREST W. SMITH and DEFOREST INDUSTRIES, INC. : J.D. OF ANSONIA / MILFORD V. : AT MILFORD H. PEARCE REAL ESTATE : COMPANY, INC. : DECEMBER 27, 2021 CORRECED SECOND RE-NOTICE OF DEPOSITION PLEASE TAKE NOTICE that the plaintiffs will take the deposition of the defendant’s President, BARBARA L. PEARCE, commencing at 10:00 AM on Wednesday, February 2, 2022, at DEY SMITH STEELE, LLC, 9 Depot Street, 2nd Floor Milford, CT 06460, before Christine Mannix, RPR, LSR, or other or other competent authority authorized to administer oaths and take testimony. Notice is further given that the deponent is required to produce at the time of said deposition all of the documents, communications, information and tangible things set forth in Schedule A included herewith. The deposition will continue from day-to-day until complete. THE PLAINTIFFS, BY: /s/ John-Henry M. Steele (#404743) DEY SMITH STEELE, LLC (#412130) 9 Depot Street, 2nd Floor Milford, CT 06460 Tel.: (203) 882-3351 Fax: (203) 882-3359 Email: jhs@deysmith.com Schedule A To the Notice of Deposition for Barbara L. Pearce Smith, et al. v. H. Pearce Real Estate Co., Inc., AAN-CV16-6031256-S 1. The following documents for the properties identified in Schedule 1.1(a) to the Asset Purchase Agreement between H. PEARCE REAL ESTATE COMPANY, INC., DEFOREST INDUSTRIES, INC., and DEFOREST W. SMITH, a copy of which is appended hereto as Exhibit 1, for the period of time from June 19, 2012 to the present, including, but not limited to all: a. checks, cancelled checks, payments, and communications regarding same; b. commissions, including amounts received and communications regarding same; c. documents concerning how commissions were calculated; d. documents concerning the proposed calculation of commissions; e. the division of commissions between the defendant and any other person whether that person was affiliated with the defendant in anyway or not, and communications regarding same; f. the proposed division of commissions between the defendant and any other person whether that person was affiliated with the defendant in anyway or not, and communications regarding same; g. internal financial accounting and/or ledger entries; and h. listing agreements, and extensions or modifications thereto. 2. To the extent not produced in response to request #1 above, all other documents and communications concerning the properties identified in request #1 above for the period of time specified in said request. 3. All documents and communications concerning the interpretation of Article II, paragraph 2.1 of the Asset Purchase Agreement between the parties to this litigation. 4. All documents and communications concerning the application of Article II, paragraph 2.1 of the Asset Purchase Agreement between the parties to this litigation. 5. All documents and communications concerning payments made pursuant to Article II, paragraph 2.1 of the Asset Purchase Agreement between the parties to this litigation. 6. The required privilege log within the time specified by law for all information withheld under a claim of privilege or work product. Practice Book § 13-3(d). 2 CERTIFICATION I certify that a copy of the above was or will immediately be mailed or delivered electronically or non-electronically on Monday, December 27, 2021, to all counsel and self-represented parties of record, and that written consent for electronic delivery was received from all counsel and self-represented parties of record who were or will immediately be electronically served. Peter T. Fay, Esq. Neubert, Pepe & Monteith, P.C. 195 Church Street, 13th Floor New Haven, CT 06510 Tel.: 203.821.2000 Fax: 203.821.2009 E-mail: PFay@npmlaw.com /s/ John-Henry M. Steele (#404743) 3 Exhibit 1