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FILED
4/8/2021 12:27 PM
FELICIA PITRE
DISTRICT CLERK
DALLAS CO., TEXAS
Loaidi Grove DEPUTY
CAUSE NO. DC-20-19316
ARISTA INVESTMENTS, LLC; IN THE DISTRICT COURT
ARISTA INVESTMENTS 401K TRUST;
F. AARON EDWARDS; J. MARK
EARLY; and BRIAN FOX,
Plaintiffs,
Vv. DALLAS COUNTY, TEXAS
FIFTEENFORTYSEVEN CRITICAL
SYSTEMS REALTY, LLC; COREY
WELP; U.S. DATA CENTER
PORTFOLIO MANAGER, LLC;
RAMLAND HOLDINGS II, LLC; and 1 §
RAMLAND ROAD MANAGEMENT, 298TH JUDICIAL DISTRICT
LLC,
Defendants.
NONRESIDENT DEFENDANTS’ RESPONSE TO PLAINTIFFS’
EMERGENCY MOTION FOR CONTINUANCE AND MOTION TO COMPEL
DEPOSITIONS OF COREY WELP AND TODD RAYMOND
IN CONNECTION WITH SPECIAL APPEARANCE
TO THE HONORABLE EMILY G. TOBOLOWSKY:
Defendants U.S. Data Center Portfolio Manager, LLC (“Portfolio Manager”); Ramland
Holdings II, LLC (“Holdings II’); and 1 Ramland Road Management, LLC (“Ramland
Management”) (the “Nonresident Defendants”) file this response to Plaintiffs’ Emergency Motion
for Continuance of the Hearing on the Nonresident Defendants’ Amended Special Appearance
(“Motion for Continuance”) and Motion to Compel Depositions of Corey Welp and Todd
Raymond in Connection with Special Appearance (“Motion to Compel”) as follows:
SUMMARY OF ARGUMENT
This lawsuit concerns investments Plaintiffs made in a commercial real estate project in
Orangeburg, New York (the “Orangeburg Property’). Plaintiffs invested in the opportunity
through a Delaware limited partnership, 1547 Orangeburg Holdings, LP (“Orangeburg LP”).
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Plaintiffs agreed that disputes arising out of this transaction would be arbitrated, and Defendants
have separately moved to compel arbitration. The issue presently before the Court concerns
jurisdiction, as three of the defendants sued in this action have no connection to Texas and should
not have been sued here. Plaintiffs assert that, before the Court rules on the threshold issue of
jurisdiction, they should be entitled to engage in far flung, extensive discovery, including the two
depositions they are seeking to compel. Plaintiffs are wrong. Discovery would be an expensive
and futile fishing expedition. Plaintiffs have not and cannot allege any facts sufficient to support
their claim that these Defendants should be hauled into court in Texas to answer for damages
allegedly arising out ofa New York investment. In asserting a right to conduct broad discovery,
Plaintiffs cite to outdated case law and ignore binding Supreme Court precedent. Their request for
discovery should be denied, and the Nonresident Defendants’ motion to dismiss should be granted.
ARGUMENT AND AUTHORITIES
Texas Rule of Civil Procedure 120a(3) governs the availability of jurisdictional discovery.
Simply put, there is no automatic right to conduct such discovery. A party asking for leave to
onduct discovery before a court rules on the threshold issue of jurisdiction bears the burden of
presenting facts justifying the discovery. Tex. R. Civ. P. 120(a)(3).
Moreover, Rule 120a(3) does not authorize the postponement of a special appearance
hearing to allow a party to conduct discovery that is either unnecessary or irrelevant to the issue
of personal jurisdictional. /d. at 840. Rule 120a(3) requires that, if discovery is permitted at all,
it must be limited to facts that are “essential to justify [a party’s] opposition to the special
appearance.” /d. at 839; see also In re Doe, 444 S.W.3d 603, 608 (Tex. 2014). Part and parcel of
this rule is that merits discovery is not permitted. In re Stern, 321 S.W.3d 828, 839 (Tex. App.—
Response to Plaintiffs’ Motion for Continuance and Motion to Compel—Page 2
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Houston [1st Dist.] 2020, orig. proceeding); see also Nationwide Distribution Servs., Inc. v. Jones,
496 S.W.3d 221, 228 (Tex. App—Houston [1st Dist.] 2016, no pet.).
Plaintiffs, of course, are not entitled to engage in a fishing expedition in the hopes that a
favorable jurisdictional fact may emerge. As they acknowledge, Plaintiffs are required to provide
the Court with either a colorable basis for the exercise of personal jurisdiction or a reason to believe
that the discovery sought would reveal sufficient minimum contacts. Barron v. Vanier, 190
S.W.3d 841, 849-50 (Tex. App.—Fort Worth 2006, no pet.).! As discussed herein, they have done
neither.
A. Plaintiffs’ Arguments on General Jurisdiction Miss the Mark.
All of Plaintiffs’ requested discovery seeks either to explore the merits of the dispute
(which is not permitted) or is premised on an outmoded view of the concept of general
jurisdiction.” Plaintiffs assert that they should be entitled to conduct “extensive” jurisdictional
discovery to uncover unrelated actions Welp may have taken on the Nonresident Defendants’
behalf and the Nonresident Defendants’ “other contacts with Texas.” J. R. Arnett Affidavit at § 4.
This argument ignores binding Supreme Court precedent with regard to the concept of general
jurisdiction. In 2014, the high court clarified the scope of general jurisdiction in Daimler AG v.
Bauman, 571 U.S. 117. In Daimier, the Court reaffirmed the fact that a company’s state of
incorporation and its principal place of business are the paradigms for establishing general
jurisdiction. /d. at 137. The Court flatly rejected the argument that general jurisdiction could lie
elsewhere based solely on the existence of “a substantial, continuous, and systematic course of
| Plaintiffs’ blanket statement that the Texas Supreme Court has recognized parties can “clearly” participate in
jurisdictional discovery is misleading. Mtns. at 7. The case Plaintiffs cite for that proposition, Exito Electronics
Company, Ltd. v. Trejo, addressed the question of whether a party can waive his objection to the exercise of personal
jurisdiction by petitioning the trial court for a ruling on a discovery dispute relevant to his special appearance. 142
S.W.3d 302, 307 (Tex. 2004). The case does not address the scope of discovery available under Rule 120a(3).
? A copy of Plaintiffs’ Requests for Production of Documents and Things Regarding Defendants’ Special Appearance
is attached hereto as Exhibit A.
Response to Plaintiffs’ Motion for Continuance and Motion to Compel—Page 3
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business” in the forum state. /d. Only in the “exceptional case” in which a corporation’s contacts
with the forum “are so continuous and systematic as to render it essentially at home in the forum
state” might the exercise of general jurisdiction be appropriate. /d. at 139 n.19. As the Fifth Circuit
has recognized, following Daimler it is “incredibly difficult to establish general jurisdiction in a
forum other than the place of incorporation or principal place of business.” Monkton Ins. Servs.,
Ltd. v. Riter, 768 F.3d 429, 432 (5th Cir. 2014). Here, none of the Nonresident Defendants are
incorporated or have their principal place of business in Texas. As set forth in the Special
Appearance, each of the Nonresident Defendants is organized under the laws of the State of
Delaware and maintains its principal place of business in Matawan, New Jersey. J. Raymond
Special Appearance (“SA”) Decl. at§ 9-11. The exercise of general jurisdiction over each of them
is therefore proper in Delaware or New Jersey—not Texas. Daimler, 571 U.S. at 118.
The modern, restricted view of general jurisdiction necessarily impacts the scope and
availability of jurisdictional discovery. Following Daimler, numerous courts have rejected the
type of efforts Plaintiffs seek here to conduct discovery into issues of general jurisdiction. This is
because such fact gathering begins and ends with a simple question: where is the defendant’s
principal place of business and state of incorporation? Discovery into other matters would
therefore be an irrelevant and expensive fishing expedition. And a plaintiff is not entitled to
jurisdictional discovery when “the record shows that the requested discovery is not likely to
produce the facts needed to withstand” dismissal for lack of personal jurisdiction. My Fabric
Designs, Inc. v. F+W Media, Inc., No. 3:17-CV-2112-L, 2018 WL 1138436, at *9 (N.D. Tex. Mar.
2, 2018) (quoting Monkton, 768 F.3d at 434). Because Plaintiffs have failed to come forward with
any credible argument that this is one of the rare, “exceptional cases” in which the exercise of
general jurisdiction would be proper outside of the Nonresident Defendants’ state of organization
Response to Plaintiffs’ Motion for Continuance and Motion to Compel—Page 4
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or principal place of business, discovery into their alleged “other contacts with Texas” or unrelated
actions Welp may have taken on their behalf in Texas would be futile and should not be permitted.
Plaintiffs cite two cases in support of their request for jurisdictional discovery: Barron,
190 S.W.3d 841 and Lamar v. Poncon, 305 S.W.3d 130, 140 (Tex. App.—Houston [Ist Dist.]
2009, no pet.). The problem for Plaintiffs is that both these cases were decided well before Daimler
and thus address an outmoded and overruled concept of general jurisdiction. In short, they are
irrelevant. The current law is that, absent exceptional circumstances (which Plaintiffs have not
and cannot allege) general jurisdiction can no longer be premised on the existence of general
contacts with the forum. Discovery into those topics is therefore irrelevant.
Numerous federal courts, including federal courts in Texas, have reached this conclusion
in the years following the Supreme Court’s decision in Daimler. In Monkton, for example, the
Fifth Circuit affirmed the district court’s order denying plaintiff's request to conduct discovery
into defendant’s “other contacts with Texas.” 768 F.3d at 434. Because the plaintiff had been
“unable to state how such discovery could change the jurisdictional determination,” the Fifth
Circuit concluded “the district court was well within its discretion in denying” the discovery. /d.
In Rawls v. Old Republic General Insurance Group, Inc., the Southern District of Texas
similarly denied plaintiffs’ request for jurisdictional discovery in light of their failure to make
preliminary showing of general jurisdiction that would warrant the need for discovery” and the
“high threshold to find general jurisdiction” after Daimler. 489 F.Supp.3d 646, 2020 WL 6374621,
at *13 (S.D. Tex. 2020). The Western District of Texas recently reached the same conclusion in
DDG Group, LLC v. Lockhart Fine Foods, LLC, No. 1:20-CV-00330-RP, 2021 WL 308946, at *5
(W.D. Tex. Jan. 29, 2021). As that court noted, even assuming the defendant “. . . had more than
30 employees in Texas, maintained at least one office in Texas, and was undergoing significant
Response to Plaintiffs’ Motion for Continuance and Motion to Compel—Page 5
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growth in the Texas market . . . [its] activities do not demonstrate the degree of presence in Texas
the Supreme Court has required to exercise general jurisdiction over a nonresident defendant.” Jd.;
see also BNSF Ry. Co. v. Tyrrell, 137 S. Ct. 1549, 1559 (2017) (finding that defendant’s operation
of 2,000 miles of railroad track and presence of over 2,000 employees in forum state did not confer
general jurisdiction). Plaintiff's request for jurisdictional discovery in Lockhart was denied as it
was “highly unlikely that additional discovery would alter the result” given the undisputed facts
regarding the defendant’s contacts with Texas and the standard for the exercise of general
jurisdiction set by the United States Supreme Court. Jd.
Because the contours of jurisdiction are established by the Supreme Court, state courts in
Texas have followed federal guidance on this issue. In /n re Deutsche Bank Securities Inc., for
example, the court concluded the trial court abused its discretion in authorizing jurisdictional
discovery aimed at establishing general jurisdiction. No. 03—14-00744-CV, 2015 WL 4079280,
at *9 (Tex. App.—Austin July 3, 2015, orig. proceeding) (mem. op.). The court reasoned that
even if the requested discovery could establish “extensive business practices” in Texas, such
discovery would not be sufficient to establish an exceptional case justifying jurisdiction in Texas.
Id. at *6.
Even before Daimler was decided, Texas courts have been particularly cautious in
permitting depositions before issuing a ruling on a pending special appearance. In Moncrief Oil
International Inc. vy. OAO Gazprom, the Texas Supreme Court upheld the trial court’s denial of
the plaintiffs’ motions to compel depositions because plaintiffs had failed to “demonstrate[] what
additional jurisdictional facts the depositions would provide.” 414 S.W.3d 142, 158 (Tex. 2013).
Following Moncrief, courts have recognized that “unnecessary and overly burdensome depositions
should be avoided” and adhered to the rule that “special-appearance depositions are justified only
Response to Plaintiffs’ Motion for Continuance and Motion to Compel—Page 6
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when the plaintiff can identify some additional, non-cumulative information that is clearly relevant
to the jurisdictional inquiry which the deposition is likely to produce.” Jn re Miscavige, 436
S.W.3d 430, 439 (Tex. App.—Austin 2014, no pet.). Plaintiffs have failed to identify any such
information.
Even if Plaintiffs’ requested discovery were to reveal that Welp engaged in unrelated
conduct on behalf of each of the Nonresident Defendants in Texas or that each of the Nonresident
Defendants maintained some “other contacts . . . with Texas,” the exercise of general jurisdiction
would still be improper. It is irrelevant, for example, whether any of the Nonresident Defendants
maintained unrelated contracts with entities in Texas (Request No. 1), communicated with
financial institutions in Texas (Request No. 2), or sold goods and services in Texas (Request No.
3). None of Plaintiffs’ proposed discovery is aimed at making an “exceptional case” to thread the
needle of asserting general jurisdiction over the Nonresident Defendants in Texas. Plaintiffs’
demand for extensive discovery into the Nonresident Defendants > 6 other contacts with Texas”
should be denied.
B. Plaintiffs’ Request to Conduct Discovery into Issues of Specific Jurisdiction Fails
as Well.
Having addressed the fallacies in Plaintiffs’ efforts to seek discovery aimed at the issue of
general jurisdiction, we turn now to the only other basis for establishing personal jurisdiction:
specific jurisdiction. While it does not appear that any of the deposition topics Plaintiffs identify
in their Motion to Compel or any of the eighty-two requests for production are aimed at
establishing specific jurisdiction, the overbreadth of the discovery being sought coupled with
Plaintiffs’ failure to more specifically identify the facts they are seeking to uncover requires the
Nonresident Defendants to address this avenue of establishing jurisdiction as well. In order to
assert specific jurisdiction over any of the Nonresident Defendants, Plaintiffs would need to
Response to Plaintiffs’ Motion for Continuance and Motion to Compel—Page 7
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establish a purposeful connection between the Nonresident Defendants, this forum, and the causes
of action pled against them. Kelly v. Gen. Interior Const. Inc., 310 S.W.3d 653, 658 (Tex. 2010).
But Plaintiffs have failed to articulate any legitimate basis for the exercise of specific jurisdiction
over the Nonresident Defendants. Plaintiffs’ central claim is that they were duped into investing
in the Orangeburg Property based on false promises regarding the quality of the investment. None
of the Nonresident Defendants are alleged to have participated in luring Plaintiffs into making this
investment. Indeed, two of them were not even in existence when the investments were made.
Portfolio Manager was not formed until 2015, and Ramland Management was not formed until
2018—years after Plaintiffs made their investments. See Original Petition at § 31; J. Raymond SA
Decl. at f§ 10-11. The third Nonresident Defendant, Ramland II, was set up as a special purpose
entity in 2012 to satisfy certain requirements of the lenders financing the acquisition of the
Orangeburg Property. J. Raymond SA Decl. at § 9. Ramland II has never engaged in any business
activity anywhere, including Texas. /d.
Plaintiffs have not contested any of these facts, nor have they come forward with any
evidence tending to show that any of the Nonresident Defendants committed any tortious conduct
related to this case in Texas. Special Appearance at Jj 14-16. Plaintiffs’ threadbare allegation
that the Nonresident Defendants were either participants in a conspiracy aimed at residents of
Texas or directed tortious conduct into Texas is insufficient as a matter of law. The Texas Supreme
Court has flatly rejected the exercise of personal jurisdiction based on either theory. See Michiana
Easy Livin’ Country, Inc. v. Holten, 168 S.W.3d 777, 788-92 (Tex. 2005) (rejecting the concept of
“directed-a-tort jurisdiction” and affirming jurisdiction “based solely upon the effects of an alleged
conspiracy” is improper). As the Texas long-arm statute makes clear, for the exercise of specific
jurisdiction to be proper, the Nonresident Defendants must have committed torts “in whole or in
Response to Plaintiffs’ Motion for Continuance and Motion to Compel—Page 8
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part in this State” —a fact Plaintiffs have not even attempted to establish. Tex. Civ. Prac. & Rem.
Code§ 17.042(2).
Plaintiffs seek to blame their failure to articulate a credible theory of personal jurisdiction
on the Nonresident Defendants’ unwillingness to engage in jurisdictional discovery. This logic is
backwards, and the argument would eviscerate Rule 120a(3). That rule requires a plaintiff to
present evidence justifying the need for discovery in seeking to delay a special appearance hearing.
Simply stating that no discovery has been conducted is insufficient, and indeed employs the type
of circular logic that would render Rule 120a(3) meaningless. See Haferkamp v. Grunstein, No.
11-10-00194, 2012 WL 1632009, at *9 (Tex. App.—Eastland May 10, 2012, pet. denied) (mem.
op.). Plaintiffs have failed to articulate any colorable basis for the exercise of personal jurisdiction
over the Nonresident Defendants or to contest a single fact contained in the declaration supporting
the Nonresident Defendants’ Special Appearance. Their demand for jurisdictional discovery
should be denied on this basis alone. See In re Deutsche Bank Securities Inc., No. 03—14—00744
CV, 2015 WL 4079280, at *9 (Tex. App.—Austin July 3, 2015, orig. proceeding) (mem. op.)
(concluding the trial court abused its discretion in ordering jurisdictional discovery where plaintiffs
failed to contest the affidavit submitted in support of defendant’s special appearance or to allege
any minimum contacts that would ensure exercising jurisdiction over the defendant would comport
with due process).
C. Plaintiffs Have Not Provided the Court with Any Reason to Believe the Discovery
They are Seeking Would be Fruitful.
Plaintiffs seek to conduct an expansive fishing expedition in a blind effort to unearth some
helpful jurisdictional fact. In addition to the depositions sought by Plaintiffs’ Motion to Compel,
Plaintiffs have served Defendants with eighty-two requests for production purportedly aimed at
contesting the Special Appearance. See Ex. A. Request numbers one through sixty-five each seek
Response to Plaintiffs’ Motion for Continuance and Motion to Compel—Page 9
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discovery of unrelated contacts with the State of Texas in a futile attempt to establish general
jurisdiction. These requests are excessively overbroad and call for the production of a wide range
of irrelevant documents. The requests, for example, seek documents reflecting any payments made
to or received from any entity in Texas; any travel to Texas for any purpose; and any
communications with anyone in Texas on any topic from January 1, 2012 through the present. See
Ex. A at Request Nos. 15, 16, 19, 29. Plaintiffs also presumably intend to depose Welp and
Raymond on an equally far-reaching range of topics. None of this discovery should be permitted,
for the reasons set forth herein. In truth, all discovery should occur in the arbitration Plaintiffs
have already filed, as they agreed to resolve their disputes in that forum. Regardless, Plaintiffs
have not (and cannot) meet their burden in connection with the jurisdictional discovery they seek.
As Plaintiffs acknowledge, they bear the burden of justifying that the discovery they seek would
reveal sufficient minimum contacts. Barron, 190 S.W.3d at 850. In spite of that
acknowledgement, Plaintiffs’ motion fails to identify the facts they believe discovery would
uncover or to explain how those facts would support the exercise of personal jurisdiction over any
of the Nonresident Defendants. The discovery Plaintiffs seek is facially overbroad, and all of it
should be denied. See In re Stern, 321 S.W.3d at 843.
Plaintiffs’ remaining requests for production are aimed at conducting merits-based
discovery that is improper at this stage of the proceeding. See Ex. A at Request Nos. 66-82.
Among other categories, the requests seek documents related to the investor communications sent
to Plaintiffs by Orangeburg GP cited in the Petition, documents relating to the underlying purchase
and sale transaction Plaintiffs seek to challenge, and documents related to the value of the
Orangeburg Property. Presumably Plaintiffs intend to depose Welp and Raymond on these topics
as well. None of these areas of inquiry have any bearing on the exercise of personal jurisdiction,
Response to Plaintiffs’ Motion for Continuance and Motion to Compel—Page 10
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and the discovery should not be permitted. “Tt is well-settled that Rule 120a requires discovery
to be limited to jurisdiction before the trial court rules on a special appearance.” In re Cho, No.
02-17-00254-CV, 2017 WL 3911002, at *2 (Tex. App.—Fort Worth Sept. 7, 2017, orig.
proceeding) (mem. op.). Discovery relevant to the merits of this case is not permitted because it
is not relevant to the pending special appearance. In re Fed. Corp., No. 13-16-00219-CV, 2016
WL 6519110, at *7 (Tex. App.—Corpus Christi-Edinburg Nov. 1, 2016, no pet.); see also IRN
Realty Corp. v. Hernandez, 300 S.W.3d 900, 902-03 (Tex. App.—Eastland 2009, no pet.) (holding
that plaintiff was not entitled to order compelling merits-based discovery before the trial court
tuled on special appearance). Plaintiffs are plainly not entitled to merits-based discovery at this
stage of the proceedings.
CONCLUSION
WHEREFORE, and subject to and without waiving the Nonresident Defendants’ Special
Appearance, Defendants U.S. Data Center Portfolio Manager, LLC; Ramland Holdings II, LLC;
and 1 Ramland Road Management, LLC respectfully request that the Court deny Plaintiffs’
Emergency Motion for Continuance of the Hearing on Defendants Amended Special Appearance
and Plaintiffs’ Motion to Compel Depositions of Corey Welp and Todd Raymond in Connection
with Special Appearance and grant any other and further relief to which they may be justly entitled.
Response to Plaintiffs’ Motion for Continuance and Motion to Compel—Page 11
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Dated: April 6, 2021 Respectfully submitted,
BECK REDDEN LLP
/s/ Fields Alexander
Fields Alexander
Texas State Bar No. 783528
falexander@beckredden.com
Amy Parker Beeson
Texas State Bar No. 24051156
abeeson@beckredden.com
1221 McKinney St., Suite 4500
Houston, Texas 77010-2010
Telephone No. (713) 951-3700
Facsimile No. (713) 951-3720
ATTORNEYS FOR DEFENDANTS U.S. DATA CENTER
PORTFOLIO MANAGER, LLC; RAMLAND
HOLDINGS II, LLC; AND 1 RAMLAND ROAD
MANAGEMENT, LLC
CERTIFICATE OF SERVICE
I certify that on April 6, 2021 a true and correct copy of this pleading was served upon the
following counsel of record via e-filing and e-service in compliance with the Texas Rules of Civil
Procedure:
Michael L. Gaubert
michael@gaubertlawgroup.com
GAUBERT LAW GROUP, P.C.
100 Crescent Court, 7th Floor
Dallas, Texas 75201
J. Robert Arnett IT
barnett@carterarnett.com
CARTER ARNETT PLLC
8150 N. Central Expressway, Suite 500
Dallas, Texas 7520
Attorneys for Plaintiffs
/s/ Fields Alexander
Fields Alexander
Response to Plaintiffs’ Motion for Continuance and Motion to Compel—Page 12
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EXHIBIT A
CAUSE NO. DC-20-19316
ARISTA INVESTMENTS, LLC, § IN THE DISTRICT COURT
ARISTA INVESTMENTS 401K TRUST, §
AARON EDWARDS, MARK EARLEY, §
AND BRIAN FOX,
Plaintiffs,
VS. 298" JUDICIAL DISTRICT
FIFTEENFORTYSEVEN CRITICAL
SYSTEMS REALTY (1547), COREY WELP,
U.S. DATA CENTER PORTFOLIO
MANAGER, LLC, RAMLAND HOLDINGS
II, LLC, AND 1 RAMLAND ROAD
MANAGEMENT, LLC,
Defendants. DALLAS COUNTY, TEXAS
PLAINTIFFS’ REQUEST FOR PRODUCTION OF DOCUMENTS AND
THINGS REGARDING DEFENDANTS’ SPECIAL APPEARANCE
TO: Defendants U.S. Data Center Portfolio Manager, LLC, Ramland Holdings, II, LLC,
and 1 Ramland Road Management, LLC by and through their attorney of record,
Fields Alexander, Beck Redden, LLP, 1221 McKinney Street, Suite 4500, Houston,
Texas 77010.
Pursuant to the Texas Rules of Civil Procedure, Plaintiffs Arista Investments, LLC, Arista
Investments 401K Trust, Aaron Edwards, Mark Earley, and Brian Fox (collectively, “Plaintiffs”)
serve the following requests for production to Defendants U.S. Data Center Portfolio Manager, LLP
(“Portfolio Manager”), Ramland Holdings, II, LLC (“Holdings II”), and 1 Ramland Road
Management, LLC (“Ramland Management”) (collectively, “Defendants”) regarding their special
appearance, as follows:
L
INSTRUCTIONS
1 The following documents, electronic information (as defined below) and/or items are
to be produced for inspection, examination and copying on or before thirty (30) days after service of
this request for production, at 10:00 a.m., or at such other time as is agreed upon by the attorneys of
PLAINTIFFS’ REQUEST FOR PRODUCTION OF DOCUMENTS AND
THINGS REGARDING DEFENDANTS’ SPECIAL APPEARANCE PAGE 1
the respective parties, at a location to be agreed upon by the attorneys of the respective parties, or if
no agreement is reached, at the offices of Carter Arnett, PLLC, 8150 N. Central Expressway, Suite
500, Dallas, Texas 75206. Each discovery request also is requesting versions and copies of the
requested document, material or information stored electronically, as electronic data on computer
disk or hard drive, or on any other device which stores or compiles data or information. Each request
for production seeks responsive documents in their entirety, without abbreviation, deletion or
redaction.
2 For purposes of interpreting or construing the scope of these discovery requests, all
terms shall be given their most expansive and inclusive interpretation, unless otherwise specifically
limited by the language of an individual request. This includes, without limitation, the following:
(a) construing "and" as well as " in the disjunctive or conjunctive, as necessary to make the request
more inclusive; (b) construing the singular form of the word to include the plural, and the plural form
to include the singular; (c) construing the masculine to include the feminine and vice versa; and (d)
onstruing the term "including" to mean "including but not limited to."
3 Unless otherwise indicated, the use in these discovery requests of the name of any
party, person or business organization shall specifically include all agents, employees, shareholders,
owners, officers, directors, joint ventures, representatives, attorneys and all other persons acting on
behalf of the subject party, person or business organization.
4 It is requested that all documents, information or other data compilations, electronic
or otherwise, that are relevant to or might have impact on the subject matter of this litigation be
preserved and that any ongoing process of destruction involving such documents or data
compilations cease.
5 These discovery requests are intended to include all documents and/or information in
your possession or subject to your custody or control whether directly or indirectly. A document or
information is deemed to be within your possession, custody or control if:
(a) it is within your actual knowledge or possession;
(b) it is in your physical control or ownership;
(c) you have a right to possession of the document or information that is equal to
or superior to the person who has actual physical possession of the document or
information.
6 These discovery requests are intended to be continuing in nature. In the event that
any document and/or information comes to your attention, possession, custody or control, or the
attention, possession, custody or control of your associates or your attorneys, subsequent to the filing
of your response(s), which document and/or information is responsive to any discovery request, you
are required to furnish said additional information or material to the opposing attorney as soon as
possible or, otherwise, as required by the applicable rules of practice and procedure.
| All responsive documents and/or information should be produced in the form in which
they are kept in the usual course of business. For all responsive Electronic Information (as defined
below), you are to produce it in native format (i.e., original or true format of a given computer file
PLAINTIFFS’ REQUEST FOR PRODUCTION OF DOCUMENTS AND
THINGS REGARDING DEFENDANTS’ SPECIAL APPEARANCE PAGE 2
or segment of data) with associated Metadata intact, together with the name of the owner of the
information, the source of the information (e.g., custodian workstation, network servers, back-up
tapes, etc.), and a description of the of the information application necessary to open and review the
information or materials. All responsive Electronic Information should be stored and provided to the
undersigned attorneys on a removable computer hard drive(s) of typical configuration. All responsive
documents that are maintained exclusively as hard-copy or printed form should be produced as single
page TIF images which bear the file extension .tif. Any load files that were created during the
imaging process should also be provided. You should provide a detailed description of the imaging
applications used and the load file format. If the information or materials exist in a medium and
application that is not publicly available or that is proprietary to you, then reduce the information or
materials to a paper copy and permit inspection of the medium.
8 Unless otherwise specified in the specific discovery request, the relevant time period
is January 1, 2012, to the present.
9 If any document requested is withheld on the basis of any claim or privilege or work
product or otherwise, you are requested to comply with the requirements set forth in Rule 193.3 of
the Texas Rules of Civil Procedure.
IL
DEFINITIONS
10. The term “documents” is used in the broadest sense and includes, but is not limited
to, electronic information (as defined below), originals and any non-identical copies or reproductions
of any written or recorded matter, whether printed, reproduced by any other mechanical or electronic
process, or handwritten, including, but not limited to, drafts of any documents, revisions of drafts of
any documents, and original or preliminary notes concerning drafts of any documents, books,
accounts, journals, correspondence, memorandum, letters, reports, agreements, communications
(including inter- and intra-office and inter- and intra-company communications), e-mails, Internet
communications, telegrams, telexes, cables, indices, pictures, blueprints, sketches, plans, drawings,
diagrams, projections, bulletins, advertising literature, brochures, pamphlets, circulars, codes as well
as other devices to decipher abbreviations or other notations, computer printouts, analytical records,
memoranda, summaries, diaries, forecasts, photographs, photocopies, recordings, tape recordings,
motion picture films, graphs, note charts, notebooks, charts, minutes, notes or recordings of meetings,
documents distributed at, generated for or as a result of meetings, lists of persons attending meetings,
records, notes, reports and/or summaries of interviews, conversations, telephone calls, conferences,
investigations or negotiations, opinions or reports of consultants, appraisals, press releases,
newspaper articles, mailing lists, contracts, agreements, drafts, notes, marginal comments appearing
on or affixed to any document, calendars, day-timers, datebooks, messages, letters of credit, financial
statements, invoices, statements of account, receipts, promissory notes, security agreements, deeds
of trust, instruments purporting to grant or evidencing any security interest or lien, loan agreements,
credit and debit memoranda, cancelled checks and drafts (both front and back), check stubs, securities
ledgers, and any other papers or writings of any character or description, including, but not limited
to, any information contained in any computer or information retrieval device, and electronically
stored data.
PLAINTIFFS’ REQUEST FOR PRODUCTION OF DOCUMENTS AND
THINGS REGARDING DEFENDANTS’ SPECIAL APPEARANCE PAGE3
11. The terms “communication” or “communicate” include any transfer or exchange
between two or more persons of any information, whether through an intermediary or by written,
electronic, computer or oral means, including, but not limited to, personal conversations, meetings,
telephone calls, correspondence, e-mails, Internet communications, telegrams, telexes, cables,
memoranda, and any other understandings between two or more people.
12. The term “person” includes natural persons, groups of natural persons acting in a
collegial capacity (e.g., a committee or council), corporations, partnerships, associations, joint
ventures, and any other incorporated or unincorporated business, governmental, public, social or
legal entity. A reference to any person or entity shall include, when applicable, its parent and
subsidiary companies, partners, general partners, limited partners, joint venturers, controlled persons,
controlling persons, shareholders, officers, directors, employees, servants, agents, representatives,
principals, privies or other persons acting on its behalf.
13. The terms “identification,” “identify,” or “identity” when used in reference to: (1)
anatural individual, requires you to state his/her: (a) full name; (b) residential and business addresses
and telephone numbers; and (c) any title(s) or position(s) held; (2) a corporation, requires you to state
its: (a) full corporate name and any names under which it does business; (b) state and date of
incorporation; (c) the address and telephone number of its principal place of business; and (d) the
addresses of all of its offices; (3) a business, requires you to state: (a) the full name or style under
which the business is conducted; (b) its business address or addresses and telephone numbers; (c) the
type(s) of business(es) in which it is engaged; (d) the geographical area(s) in which it conducts those
business(es); and (e) the identity of the person(s) who owns, operates and controls the business(es);
(4) a document, requires you to state: (a) the number of pages and the nature of the document (e.g.,
letter, memorandum, e-mail, Internet communication); (b) its title and subject matter; (c) its date; (d)
the name or names of its authors or persons who contributed to the authorship; (e) its recipients; and
(f) its present location and custodian; (5) a communication or representation, requires you: (a) if any
part of the communication or representation was written, to identify the document or documents
which refer to or evidence the communication or representation; and (b) to the extent the
communication or representation was nonwritten to (i) identify the person participating in the
communication or representation; (ii) state the date, manner, place, and substance of the
communication or representation; (6) a meeting, requires you: (a) if any part of the meeting was
memorialized in writing, to identify the document(s) that refers to or evidences the meeting; and (b)
to the extent that the meeting was not memorialized in writing, to (i) state the date and time of the
meeting; (ii) state the location of the meeting; (iii) state the substance of the discussion at the meeting;
and (iv) identify all persons who were present at or attended the meeting; (7) a lawsuit, requires you
to state: (a) the name/style of the lawsuit; (b) the cause number; and (c) the city, state and court where
it was filed.
14. The terms “relating,” “relate,” “related,” “concern,” or “concerning” mean
referring to, having any relationship to, pertaining to, evidencing or constituting evidence of, in
whole or in part, of the subject matter of the request.
15. The term “1547 CSR” means fifteenfortyseven Critical Systems Realty, LLC, its
parent and subsidiary companies, partners, general partners, limited partners, joint venturers,
PLAINTIFFS’ REQUEST FOR PRODUCTION OF DOCUMENTS AND
THINGS REGARDING DEFENDANTS’ SPECIAL APPEARANCE PAGE 4
controlled persons, controlling persons, shareholders, officers, directors, employees, servants,
agents, representatives, principals, privies or other persons acting on its behalf.
16. The term “Portfolio Manager” means Defendant U.S. Data Center Portfolio
Manager, LLC, its subsidiary companies, members, managers, controlled persons, controlling
persons, officers, employees, servants, agents, representatives, principals, privies or other persons
acting on its behalf.
17. The term “Holdings IT” means Defendant Ramland Holdings II, LLC, its subsidiary
companies, members, managers, controlled persons, controlling persons, officers, employees,
servants, agents, representatives, principals, privies or other persons acting on its behalf.
18. The term “Ramland Management” means Defendant 1 Ramland Road
Management, LLC, its subsidiary companies, members, managers, controlled persons, controlling
persons, officers, employees, servants, agents, representatives, principals, privies or other persons
acting on its behalf.
19. The terms “Defendants,” “you,” and “your” mean any one or more of Defendants
Portfolio Manager, Holdings II, and Ramland Management.
20. The term “Arista” means Plaintiff Arista Investments, LLC, its parent and subsidiary
companies, partners, general partners, limited partners, joint venturers, controlled persons,
controlling persons, shareholders, officers, directors, employees, servants, agents, representatives,
principals, privies or other persons acting on its behalf.
21. The term “Arista Trust’ means Plaintiff Arista Investments 401K Trust, its parent
and subsidiary companies, partners, general partners, limited partners, joint venturers, controlled
persons, controlling persons, shareholders, officers, directors, employees, servants, agents,
representatives, principals, privies or other persons acting on its behalf.
22. The term “Edwards” means Plaintiff Aaron Edwards, individually.
23. The term “Earley” means Plaintiff Mark Earley, individually.
24. The term “Fox” means Plaintiff Brian Fox, individually.
25s. The term “Plaintiffs” means Plaintiffs Arista, Arista Trust, Edwards, Earley, and Fox,
collectively.
26. The terms “this Action” and “this Lawsuit” refer to the above-captioned lawsuit, as
may be amended and/or supplemented, including all claims, defenses and affirmative defenses filed
in that cause.
27. The term “electronic information” refers to any electronically stored data on
magnetic or optical storage media (e.g., hard drives or disks, backup tapes, CD-ROMs, DVD-ROMs,
JAZ and Zip drives, and floppy disks) as an “active” file or files (i.e., readily readable by one or more
PLAINTIFFS’ REQUEST FOR PRODUCTION OF DOCUMENTS AND
THINGS REGARDING DEFENDANTS’ SPECIAL APPEARANCE PaGE5
computer applications or forensic software); any “deleted” but recoverable electronic files on said
media; any electronic file fragments (i.e., files that have been deleted and partially overwritten with
new data); and “slack” (i.e., data fragments stored randomly from random access memory on said
media during the normal operation of a computer (RAM slacks) or residual data left on said media
after new data has overwritten some but not all of previously stored data).
28. The term “metadata” refers to file information that is not readily visible during
conventional access, including but not limited to the file name; name or identity of the actual author
and the platform or software used to create the file; the date the file was created and a revision history
setting forth the dates that underlying or related files were written to, modified, erased or deleted;
the dates and times that the file was opened or otherwise accessed; comments, links and other hidden
components; the storage path of the underlying and related files; the identity and location of the other
related authors and documents; the directories and subdirectories of the file; and deleted files and
temporary files that were erased and over-written.
29. The term “computer” shall include, but is not limited to, microchips, microcomputers
(also known as personal computers), laptop computers, portable computers, notebook computers,
palmtop computers (also known as personal digital assistants or PDA's), mobile telephones with
internet capabilities, minicomputers and mainframe computers.
30. The term “computer system” when used in reference to any computer, includes, but
is not limited to, the following information:
(a) computer type, brand and model;
(b) brand & version of all software, including operating system, private-and
custom- developed applications, commercial applications, and/or shareware; and
(©) communications capability, including asynchronous and/or synchronous,
including, but not limited to, terminal to mainframe emulation, data download and/or upload
capability to mainframe, and computer to computer connections via network, modem and/or
direct connection.
Til.
PRIVILEGED
OR EXEMPT DOCUMENTS
If any document requested is withheld on the basis of any claim of privilege or work product,
or otherwise, you are requested to, for each document withheld, provide Plaintiff with a description
of the withheld document or information sufficient to enable Plaintiff to assess the applicability of
the privilege, including the type of document, the general subject matter of the document, the date of
the document, and where appropriate, the author, addressee, custodian, and recipients of the
document along with any and all privilege(s) asserted with respect to the withheld document.
When a document contains both privileged and non-privileged material, the non-privileged
material must be disclosed to the fullest extent possible without thereby disclosing the privileged
material. Ifa privilege is asserted with regard to part of the material contained in a document, the
PLAINTIFFS’ REQUEST FOR PRODUCTION OF DOCUMENTS AND
THINGS REGARDING DEFENDANTS’ SPECIAL APPEARANCE PAGE 6
party claiming the privilege must clearly indicate the portions as to which the privilege is claimed.
When a document has been redacted or altered in any fashion, identify as to each document the
reason for the redaction or alteration, the date of the redaction or alteration, and the person
performing the redaction or alteration. Any redaction must be clearly visible on the redacted
document.
Iv.
ELECTRONICALLY
STORED INFORMATION
The Requests include all documents, including electronically stored information (“ESI”), in
or subject to your possession, custody, or control. Plaintiffs are prepared to discuss with you the
methods of producing ESI. In the absence of an agreement, ESI should be produced in the following
form: (1) all ESI should be produced as Type IV single page tiff files with the name of each tiff file
being the Bates number contained on the corresponding page; (2) documents should not be divided
across folder directories and an image load file (e.g., “.LFP” file) that defines all document page
breaks should be provided; (3) the extracted full text from the body of each document should be
produced as a “.TXT” file, and for each document
Preview
FILED 4/8/2021 12:27 PM FELICIA PITRE DISTRICT CLERK DALLAS CO., TEXAS Loaidi Grove DEPUTY CAUSE NO. DC-20-19316 ARISTA INVESTMENTS, LLC; IN THE DISTRICT COURT ARISTA INVESTMENTS 401K TRUST; F. AARON EDWARDS; J. MARK EARLY; and BRIAN FOX, Plaintiffs, Vv. DALLAS COUNTY, TEXAS FIFTEENFORTYSEVEN CRITICAL SYSTEMS REALTY, LLC; COREY WELP; U.S. DATA CENTER PORTFOLIO MANAGER, LLC; RAMLAND HOLDINGS II, LLC; and 1 § RAMLAND ROAD MANAGEMENT, 298TH JUDICIAL DISTRICT LLC, Defendants. NONRESIDENT DEFENDANTS’ RESPONSE TO PLAINTIFFS’ EMERGENCY MOTION FOR CONTINUANCE AND MOTION TO COMPEL DEPOSITIONS OF COREY WELP AND TODD RAYMOND IN CONNECTION WITH SPECIAL APPEARANCE TO THE HONORABLE EMILY G. TOBOLOWSKY: Defendants U.S. Data Center Portfolio Manager, LLC (“Portfolio Manager”); Ramland Holdings II, LLC (“Holdings II’); and 1 Ramland Road Management, LLC (“Ramland Management”) (the “Nonresident Defendants”) file this response to Plaintiffs’ Emergency Motion for Continuance of the Hearing on the Nonresident Defendants’ Amended Special Appearance (“Motion for Continuance”) and Motion to Compel Depositions of Corey Welp and Todd Raymond in Connection with Special Appearance (“Motion to Compel”) as follows: SUMMARY OF ARGUMENT This lawsuit concerns investments Plaintiffs made in a commercial real estate project in Orangeburg, New York (the “Orangeburg Property’). Plaintiffs invested in the opportunity through a Delaware limited partnership, 1547 Orangeburg Holdings, LP (“Orangeburg LP”). 1599937 Plaintiffs agreed that disputes arising out of this transaction would be arbitrated, and Defendants have separately moved to compel arbitration. The issue presently before the Court concerns jurisdiction, as three of the defendants sued in this action have no connection to Texas and should not have been sued here. Plaintiffs assert that, before the Court rules on the threshold issue of jurisdiction, they should be entitled to engage in far flung, extensive discovery, including the two depositions they are seeking to compel. Plaintiffs are wrong. Discovery would be an expensive and futile fishing expedition. Plaintiffs have not and cannot allege any facts sufficient to support their claim that these Defendants should be hauled into court in Texas to answer for damages allegedly arising out ofa New York investment. In asserting a right to conduct broad discovery, Plaintiffs cite to outdated case law and ignore binding Supreme Court precedent. Their request for discovery should be denied, and the Nonresident Defendants’ motion to dismiss should be granted. ARGUMENT AND AUTHORITIES Texas Rule of Civil Procedure 120a(3) governs the availability of jurisdictional discovery. Simply put, there is no automatic right to conduct such discovery. A party asking for leave to onduct discovery before a court rules on the threshold issue of jurisdiction bears the burden of presenting facts justifying the discovery. Tex. R. Civ. P. 120(a)(3). Moreover, Rule 120a(3) does not authorize the postponement of a special appearance hearing to allow a party to conduct discovery that is either unnecessary or irrelevant to the issue of personal jurisdictional. /d. at 840. Rule 120a(3) requires that, if discovery is permitted at all, it must be limited to facts that are “essential to justify [a party’s] opposition to the special appearance.” /d. at 839; see also In re Doe, 444 S.W.3d 603, 608 (Tex. 2014). Part and parcel of this rule is that merits discovery is not permitted. In re Stern, 321 S.W.3d 828, 839 (Tex. App.— Response to Plaintiffs’ Motion for Continuance and Motion to Compel—Page 2 1599937 Houston [1st Dist.] 2020, orig. proceeding); see also Nationwide Distribution Servs., Inc. v. Jones, 496 S.W.3d 221, 228 (Tex. App—Houston [1st Dist.] 2016, no pet.). Plaintiffs, of course, are not entitled to engage in a fishing expedition in the hopes that a favorable jurisdictional fact may emerge. As they acknowledge, Plaintiffs are required to provide the Court with either a colorable basis for the exercise of personal jurisdiction or a reason to believe that the discovery sought would reveal sufficient minimum contacts. Barron v. Vanier, 190 S.W.3d 841, 849-50 (Tex. App.—Fort Worth 2006, no pet.).! As discussed herein, they have done neither. A. Plaintiffs’ Arguments on General Jurisdiction Miss the Mark. All of Plaintiffs’ requested discovery seeks either to explore the merits of the dispute (which is not permitted) or is premised on an outmoded view of the concept of general jurisdiction.” Plaintiffs assert that they should be entitled to conduct “extensive” jurisdictional discovery to uncover unrelated actions Welp may have taken on the Nonresident Defendants’ behalf and the Nonresident Defendants’ “other contacts with Texas.” J. R. Arnett Affidavit at § 4. This argument ignores binding Supreme Court precedent with regard to the concept of general jurisdiction. In 2014, the high court clarified the scope of general jurisdiction in Daimler AG v. Bauman, 571 U.S. 117. In Daimier, the Court reaffirmed the fact that a company’s state of incorporation and its principal place of business are the paradigms for establishing general jurisdiction. /d. at 137. The Court flatly rejected the argument that general jurisdiction could lie elsewhere based solely on the existence of “a substantial, continuous, and systematic course of | Plaintiffs’ blanket statement that the Texas Supreme Court has recognized parties can “clearly” participate in jurisdictional discovery is misleading. Mtns. at 7. The case Plaintiffs cite for that proposition, Exito Electronics Company, Ltd. v. Trejo, addressed the question of whether a party can waive his objection to the exercise of personal jurisdiction by petitioning the trial court for a ruling on a discovery dispute relevant to his special appearance. 142 S.W.3d 302, 307 (Tex. 2004). The case does not address the scope of discovery available under Rule 120a(3). ? A copy of Plaintiffs’ Requests for Production of Documents and Things Regarding Defendants’ Special Appearance is attached hereto as Exhibit A. Response to Plaintiffs’ Motion for Continuance and Motion to Compel—Page 3 1599937 business” in the forum state. /d. Only in the “exceptional case” in which a corporation’s contacts with the forum “are so continuous and systematic as to render it essentially at home in the forum state” might the exercise of general jurisdiction be appropriate. /d. at 139 n.19. As the Fifth Circuit has recognized, following Daimler it is “incredibly difficult to establish general jurisdiction in a forum other than the place of incorporation or principal place of business.” Monkton Ins. Servs., Ltd. v. Riter, 768 F.3d 429, 432 (5th Cir. 2014). Here, none of the Nonresident Defendants are incorporated or have their principal place of business in Texas. As set forth in the Special Appearance, each of the Nonresident Defendants is organized under the laws of the State of Delaware and maintains its principal place of business in Matawan, New Jersey. J. Raymond Special Appearance (“SA”) Decl. at§ 9-11. The exercise of general jurisdiction over each of them is therefore proper in Delaware or New Jersey—not Texas. Daimler, 571 U.S. at 118. The modern, restricted view of general jurisdiction necessarily impacts the scope and availability of jurisdictional discovery. Following Daimler, numerous courts have rejected the type of efforts Plaintiffs seek here to conduct discovery into issues of general jurisdiction. This is because such fact gathering begins and ends with a simple question: where is the defendant’s principal place of business and state of incorporation? Discovery into other matters would therefore be an irrelevant and expensive fishing expedition. And a plaintiff is not entitled to jurisdictional discovery when “the record shows that the requested discovery is not likely to produce the facts needed to withstand” dismissal for lack of personal jurisdiction. My Fabric Designs, Inc. v. F+W Media, Inc., No. 3:17-CV-2112-L, 2018 WL 1138436, at *9 (N.D. Tex. Mar. 2, 2018) (quoting Monkton, 768 F.3d at 434). Because Plaintiffs have failed to come forward with any credible argument that this is one of the rare, “exceptional cases” in which the exercise of general jurisdiction would be proper outside of the Nonresident Defendants’ state of organization Response to Plaintiffs’ Motion for Continuance and Motion to Compel—Page 4 1599937 or principal place of business, discovery into their alleged “other contacts with Texas” or unrelated actions Welp may have taken on their behalf in Texas would be futile and should not be permitted. Plaintiffs cite two cases in support of their request for jurisdictional discovery: Barron, 190 S.W.3d 841 and Lamar v. Poncon, 305 S.W.3d 130, 140 (Tex. App.—Houston [Ist Dist.] 2009, no pet.). The problem for Plaintiffs is that both these cases were decided well before Daimler and thus address an outmoded and overruled concept of general jurisdiction. In short, they are irrelevant. The current law is that, absent exceptional circumstances (which Plaintiffs have not and cannot allege) general jurisdiction can no longer be premised on the existence of general contacts with the forum. Discovery into those topics is therefore irrelevant. Numerous federal courts, including federal courts in Texas, have reached this conclusion in the years following the Supreme Court’s decision in Daimler. In Monkton, for example, the Fifth Circuit affirmed the district court’s order denying plaintiff's request to conduct discovery into defendant’s “other contacts with Texas.” 768 F.3d at 434. Because the plaintiff had been “unable to state how such discovery could change the jurisdictional determination,” the Fifth Circuit concluded “the district court was well within its discretion in denying” the discovery. /d. In Rawls v. Old Republic General Insurance Group, Inc., the Southern District of Texas similarly denied plaintiffs’ request for jurisdictional discovery in light of their failure to make preliminary showing of general jurisdiction that would warrant the need for discovery” and the “high threshold to find general jurisdiction” after Daimler. 489 F.Supp.3d 646, 2020 WL 6374621, at *13 (S.D. Tex. 2020). The Western District of Texas recently reached the same conclusion in DDG Group, LLC v. Lockhart Fine Foods, LLC, No. 1:20-CV-00330-RP, 2021 WL 308946, at *5 (W.D. Tex. Jan. 29, 2021). As that court noted, even assuming the defendant “. . . had more than 30 employees in Texas, maintained at least one office in Texas, and was undergoing significant Response to Plaintiffs’ Motion for Continuance and Motion to Compel—Page 5 1599937 growth in the Texas market . . . [its] activities do not demonstrate the degree of presence in Texas the Supreme Court has required to exercise general jurisdiction over a nonresident defendant.” Jd.; see also BNSF Ry. Co. v. Tyrrell, 137 S. Ct. 1549, 1559 (2017) (finding that defendant’s operation of 2,000 miles of railroad track and presence of over 2,000 employees in forum state did not confer general jurisdiction). Plaintiff's request for jurisdictional discovery in Lockhart was denied as it was “highly unlikely that additional discovery would alter the result” given the undisputed facts regarding the defendant’s contacts with Texas and the standard for the exercise of general jurisdiction set by the United States Supreme Court. Jd. Because the contours of jurisdiction are established by the Supreme Court, state courts in Texas have followed federal guidance on this issue. In /n re Deutsche Bank Securities Inc., for example, the court concluded the trial court abused its discretion in authorizing jurisdictional discovery aimed at establishing general jurisdiction. No. 03—14-00744-CV, 2015 WL 4079280, at *9 (Tex. App.—Austin July 3, 2015, orig. proceeding) (mem. op.). The court reasoned that even if the requested discovery could establish “extensive business practices” in Texas, such discovery would not be sufficient to establish an exceptional case justifying jurisdiction in Texas. Id. at *6. Even before Daimler was decided, Texas courts have been particularly cautious in permitting depositions before issuing a ruling on a pending special appearance. In Moncrief Oil International Inc. vy. OAO Gazprom, the Texas Supreme Court upheld the trial court’s denial of the plaintiffs’ motions to compel depositions because plaintiffs had failed to “demonstrate[] what additional jurisdictional facts the depositions would provide.” 414 S.W.3d 142, 158 (Tex. 2013). Following Moncrief, courts have recognized that “unnecessary and overly burdensome depositions should be avoided” and adhered to the rule that “special-appearance depositions are justified only Response to Plaintiffs’ Motion for Continuance and Motion to Compel—Page 6 1599937 when the plaintiff can identify some additional, non-cumulative information that is clearly relevant to the jurisdictional inquiry which the deposition is likely to produce.” Jn re Miscavige, 436 S.W.3d 430, 439 (Tex. App.—Austin 2014, no pet.). Plaintiffs have failed to identify any such information. Even if Plaintiffs’ requested discovery were to reveal that Welp engaged in unrelated conduct on behalf of each of the Nonresident Defendants in Texas or that each of the Nonresident Defendants maintained some “other contacts . . . with Texas,” the exercise of general jurisdiction would still be improper. It is irrelevant, for example, whether any of the Nonresident Defendants maintained unrelated contracts with entities in Texas (Request No. 1), communicated with financial institutions in Texas (Request No. 2), or sold goods and services in Texas (Request No. 3). None of Plaintiffs’ proposed discovery is aimed at making an “exceptional case” to thread the needle of asserting general jurisdiction over the Nonresident Defendants in Texas. Plaintiffs’ demand for extensive discovery into the Nonresident Defendants > 6 other contacts with Texas” should be denied. B. Plaintiffs’ Request to Conduct Discovery into Issues of Specific Jurisdiction Fails as Well. Having addressed the fallacies in Plaintiffs’ efforts to seek discovery aimed at the issue of general jurisdiction, we turn now to the only other basis for establishing personal jurisdiction: specific jurisdiction. While it does not appear that any of the deposition topics Plaintiffs identify in their Motion to Compel or any of the eighty-two requests for production are aimed at establishing specific jurisdiction, the overbreadth of the discovery being sought coupled with Plaintiffs’ failure to more specifically identify the facts they are seeking to uncover requires the Nonresident Defendants to address this avenue of establishing jurisdiction as well. In order to assert specific jurisdiction over any of the Nonresident Defendants, Plaintiffs would need to Response to Plaintiffs’ Motion for Continuance and Motion to Compel—Page 7 1599937 establish a purposeful connection between the Nonresident Defendants, this forum, and the causes of action pled against them. Kelly v. Gen. Interior Const. Inc., 310 S.W.3d 653, 658 (Tex. 2010). But Plaintiffs have failed to articulate any legitimate basis for the exercise of specific jurisdiction over the Nonresident Defendants. Plaintiffs’ central claim is that they were duped into investing in the Orangeburg Property based on false promises regarding the quality of the investment. None of the Nonresident Defendants are alleged to have participated in luring Plaintiffs into making this investment. Indeed, two of them were not even in existence when the investments were made. Portfolio Manager was not formed until 2015, and Ramland Management was not formed until 2018—years after Plaintiffs made their investments. See Original Petition at § 31; J. Raymond SA Decl. at f§ 10-11. The third Nonresident Defendant, Ramland II, was set up as a special purpose entity in 2012 to satisfy certain requirements of the lenders financing the acquisition of the Orangeburg Property. J. Raymond SA Decl. at § 9. Ramland II has never engaged in any business activity anywhere, including Texas. /d. Plaintiffs have not contested any of these facts, nor have they come forward with any evidence tending to show that any of the Nonresident Defendants committed any tortious conduct related to this case in Texas. Special Appearance at Jj 14-16. Plaintiffs’ threadbare allegation that the Nonresident Defendants were either participants in a conspiracy aimed at residents of Texas or directed tortious conduct into Texas is insufficient as a matter of law. The Texas Supreme Court has flatly rejected the exercise of personal jurisdiction based on either theory. See Michiana Easy Livin’ Country, Inc. v. Holten, 168 S.W.3d 777, 788-92 (Tex. 2005) (rejecting the concept of “directed-a-tort jurisdiction” and affirming jurisdiction “based solely upon the effects of an alleged conspiracy” is improper). As the Texas long-arm statute makes clear, for the exercise of specific jurisdiction to be proper, the Nonresident Defendants must have committed torts “in whole or in Response to Plaintiffs’ Motion for Continuance and Motion to Compel—Page 8 1599937 part in this State” —a fact Plaintiffs have not even attempted to establish. Tex. Civ. Prac. & Rem. Code§ 17.042(2). Plaintiffs seek to blame their failure to articulate a credible theory of personal jurisdiction on the Nonresident Defendants’ unwillingness to engage in jurisdictional discovery. This logic is backwards, and the argument would eviscerate Rule 120a(3). That rule requires a plaintiff to present evidence justifying the need for discovery in seeking to delay a special appearance hearing. Simply stating that no discovery has been conducted is insufficient, and indeed employs the type of circular logic that would render Rule 120a(3) meaningless. See Haferkamp v. Grunstein, No. 11-10-00194, 2012 WL 1632009, at *9 (Tex. App.—Eastland May 10, 2012, pet. denied) (mem. op.). Plaintiffs have failed to articulate any colorable basis for the exercise of personal jurisdiction over the Nonresident Defendants or to contest a single fact contained in the declaration supporting the Nonresident Defendants’ Special Appearance. Their demand for jurisdictional discovery should be denied on this basis alone. See In re Deutsche Bank Securities Inc., No. 03—14—00744 CV, 2015 WL 4079280, at *9 (Tex. App.—Austin July 3, 2015, orig. proceeding) (mem. op.) (concluding the trial court abused its discretion in ordering jurisdictional discovery where plaintiffs failed to contest the affidavit submitted in support of defendant’s special appearance or to allege any minimum contacts that would ensure exercising jurisdiction over the defendant would comport with due process). C. Plaintiffs Have Not Provided the Court with Any Reason to Believe the Discovery They are Seeking Would be Fruitful. Plaintiffs seek to conduct an expansive fishing expedition in a blind effort to unearth some helpful jurisdictional fact. In addition to the depositions sought by Plaintiffs’ Motion to Compel, Plaintiffs have served Defendants with eighty-two requests for production purportedly aimed at contesting the Special Appearance. See Ex. A. Request numbers one through sixty-five each seek Response to Plaintiffs’ Motion for Continuance and Motion to Compel—Page 9 1599937 discovery of unrelated contacts with the State of Texas in a futile attempt to establish general jurisdiction. These requests are excessively overbroad and call for the production of a wide range of irrelevant documents. The requests, for example, seek documents reflecting any payments made to or received from any entity in Texas; any travel to Texas for any purpose; and any communications with anyone in Texas on any topic from January 1, 2012 through the present. See Ex. A at Request Nos. 15, 16, 19, 29. Plaintiffs also presumably intend to depose Welp and Raymond on an equally far-reaching range of topics. None of this discovery should be permitted, for the reasons set forth herein. In truth, all discovery should occur in the arbitration Plaintiffs have already filed, as they agreed to resolve their disputes in that forum. Regardless, Plaintiffs have not (and cannot) meet their burden in connection with the jurisdictional discovery they seek. As Plaintiffs acknowledge, they bear the burden of justifying that the discovery they seek would reveal sufficient minimum contacts. Barron, 190 S.W.3d at 850. In spite of that acknowledgement, Plaintiffs’ motion fails to identify the facts they believe discovery would uncover or to explain how those facts would support the exercise of personal jurisdiction over any of the Nonresident Defendants. The discovery Plaintiffs seek is facially overbroad, and all of it should be denied. See In re Stern, 321 S.W.3d at 843. Plaintiffs’ remaining requests for production are aimed at conducting merits-based discovery that is improper at this stage of the proceeding. See Ex. A at Request Nos. 66-82. Among other categories, the requests seek documents related to the investor communications sent to Plaintiffs by Orangeburg GP cited in the Petition, documents relating to the underlying purchase and sale transaction Plaintiffs seek to challenge, and documents related to the value of the Orangeburg Property. Presumably Plaintiffs intend to depose Welp and Raymond on these topics as well. None of these areas of inquiry have any bearing on the exercise of personal jurisdiction, Response to Plaintiffs’ Motion for Continuance and Motion to Compel—Page 10 1599937 and the discovery should not be permitted. “Tt is well-settled that Rule 120a requires discovery to be limited to jurisdiction before the trial court rules on a special appearance.” In re Cho, No. 02-17-00254-CV, 2017 WL 3911002, at *2 (Tex. App.—Fort Worth Sept. 7, 2017, orig. proceeding) (mem. op.). Discovery relevant to the merits of this case is not permitted because it is not relevant to the pending special appearance. In re Fed. Corp., No. 13-16-00219-CV, 2016 WL 6519110, at *7 (Tex. App.—Corpus Christi-Edinburg Nov. 1, 2016, no pet.); see also IRN Realty Corp. v. Hernandez, 300 S.W.3d 900, 902-03 (Tex. App.—Eastland 2009, no pet.) (holding that plaintiff was not entitled to order compelling merits-based discovery before the trial court tuled on special appearance). Plaintiffs are plainly not entitled to merits-based discovery at this stage of the proceedings. CONCLUSION WHEREFORE, and subject to and without waiving the Nonresident Defendants’ Special Appearance, Defendants U.S. Data Center Portfolio Manager, LLC; Ramland Holdings II, LLC; and 1 Ramland Road Management, LLC respectfully request that the Court deny Plaintiffs’ Emergency Motion for Continuance of the Hearing on Defendants Amended Special Appearance and Plaintiffs’ Motion to Compel Depositions of Corey Welp and Todd Raymond in Connection with Special Appearance and grant any other and further relief to which they may be justly entitled. Response to Plaintiffs’ Motion for Continuance and Motion to Compel—Page 11 1599937 Dated: April 6, 2021 Respectfully submitted, BECK REDDEN LLP /s/ Fields Alexander Fields Alexander Texas State Bar No. 783528 falexander@beckredden.com Amy Parker Beeson Texas State Bar No. 24051156 abeeson@beckredden.com 1221 McKinney St., Suite 4500 Houston, Texas 77010-2010 Telephone No. (713) 951-3700 Facsimile No. (713) 951-3720 ATTORNEYS FOR DEFENDANTS U.S. DATA CENTER PORTFOLIO MANAGER, LLC; RAMLAND HOLDINGS II, LLC; AND 1 RAMLAND ROAD MANAGEMENT, LLC CERTIFICATE OF SERVICE I certify that on April 6, 2021 a true and correct copy of this pleading was served upon the following counsel of record via e-filing and e-service in compliance with the Texas Rules of Civil Procedure: Michael L. Gaubert michael@gaubertlawgroup.com GAUBERT LAW GROUP, P.C. 100 Crescent Court, 7th Floor Dallas, Texas 75201 J. Robert Arnett IT barnett@carterarnett.com CARTER ARNETT PLLC 8150 N. Central Expressway, Suite 500 Dallas, Texas 7520 Attorneys for Plaintiffs /s/ Fields Alexander Fields Alexander Response to Plaintiffs’ Motion for Continuance and Motion to Compel—Page 12 1599937 EXHIBIT A CAUSE NO. DC-20-19316 ARISTA INVESTMENTS, LLC, § IN THE DISTRICT COURT ARISTA INVESTMENTS 401K TRUST, § AARON EDWARDS, MARK EARLEY, § AND BRIAN FOX, Plaintiffs, VS. 298" JUDICIAL DISTRICT FIFTEENFORTYSEVEN CRITICAL SYSTEMS REALTY (1547), COREY WELP, U.S. DATA CENTER PORTFOLIO MANAGER, LLC, RAMLAND HOLDINGS II, LLC, AND 1 RAMLAND ROAD MANAGEMENT, LLC, Defendants. DALLAS COUNTY, TEXAS PLAINTIFFS’ REQUEST FOR PRODUCTION OF DOCUMENTS AND THINGS REGARDING DEFENDANTS’ SPECIAL APPEARANCE TO: Defendants U.S. Data Center Portfolio Manager, LLC, Ramland Holdings, II, LLC, and 1 Ramland Road Management, LLC by and through their attorney of record, Fields Alexander, Beck Redden, LLP, 1221 McKinney Street, Suite 4500, Houston, Texas 77010. Pursuant to the Texas Rules of Civil Procedure, Plaintiffs Arista Investments, LLC, Arista Investments 401K Trust, Aaron Edwards, Mark Earley, and Brian Fox (collectively, “Plaintiffs”) serve the following requests for production to Defendants U.S. Data Center Portfolio Manager, LLP (“Portfolio Manager”), Ramland Holdings, II, LLC (“Holdings II”), and 1 Ramland Road Management, LLC (“Ramland Management”) (collectively, “Defendants”) regarding their special appearance, as follows: L INSTRUCTIONS 1 The following documents, electronic information (as defined below) and/or items are to be produced for inspection, examination and copying on or before thirty (30) days after service of this request for production, at 10:00 a.m., or at such other time as is agreed upon by the attorneys of PLAINTIFFS’ REQUEST FOR PRODUCTION OF DOCUMENTS AND THINGS REGARDING DEFENDANTS’ SPECIAL APPEARANCE PAGE 1 the respective parties, at a location to be agreed upon by the attorneys of the respective parties, or if no agreement is reached, at the offices of Carter Arnett, PLLC, 8150 N. Central Expressway, Suite 500, Dallas, Texas 75206. Each discovery request also is requesting versions and copies of the requested document, material or information stored electronically, as electronic data on computer disk or hard drive, or on any other device which stores or compiles data or information. Each request for production seeks responsive documents in their entirety, without abbreviation, deletion or redaction. 2 For purposes of interpreting or construing the scope of these discovery requests, all terms shall be given their most expansive and inclusive interpretation, unless otherwise specifically limited by the language of an individual request. This includes, without limitation, the following: (a) construing "and" as well as " in the disjunctive or conjunctive, as necessary to make the request more inclusive; (b) construing the singular form of the word to include the plural, and the plural form to include the singular; (c) construing the masculine to include the feminine and vice versa; and (d) onstruing the term "including" to mean "including but not limited to." 3 Unless otherwise indicated, the use in these discovery requests of the name of any party, person or business organization shall specifically include all agents, employees, shareholders, owners, officers, directors, joint ventures, representatives, attorneys and all other persons acting on behalf of the subject party, person or business organization. 4 It is requested that all documents, information or other data compilations, electronic or otherwise, that are relevant to or might have impact on the subject matter of this litigation be preserved and that any ongoing process of destruction involving such documents or data compilations cease. 5 These discovery requests are intended to include all documents and/or information in your possession or subject to your custody or control whether directly or indirectly. A document or information is deemed to be within your possession, custody or control if: (a) it is within your actual knowledge or possession; (b) it is in your physical control or ownership; (c) you have a right to possession of the document or information that is equal to or superior to the person who has actual physical possession of the document or information. 6 These discovery requests are intended to be continuing in nature. In the event that any document and/or information comes to your attention, possession, custody or control, or the attention, possession, custody or control of your associates or your attorneys, subsequent to the filing of your response(s), which document and/or information is responsive to any discovery request, you are required to furnish said additional information or material to the opposing attorney as soon as possible or, otherwise, as required by the applicable rules of practice and procedure. | All responsive documents and/or information should be produced in the form in which they are kept in the usual course of business. For all responsive Electronic Information (as defined below), you are to produce it in native format (i.e., original or true format of a given computer file PLAINTIFFS’ REQUEST FOR PRODUCTION OF DOCUMENTS AND THINGS REGARDING DEFENDANTS’ SPECIAL APPEARANCE PAGE 2 or segment of data) with associated Metadata intact, together with the name of the owner of the information, the source of the information (e.g., custodian workstation, network servers, back-up tapes, etc.), and a description of the of the information application necessary to open and review the information or materials. All responsive Electronic Information should be stored and provided to the undersigned attorneys on a removable computer hard drive(s) of typical configuration. All responsive documents that are maintained exclusively as hard-copy or printed form should be produced as single page TIF images which bear the file extension .tif. Any load files that were created during the imaging process should also be provided. You should provide a detailed description of the imaging applications used and the load file format. If the information or materials exist in a medium and application that is not publicly available or that is proprietary to you, then reduce the information or materials to a paper copy and permit inspection of the medium. 8 Unless otherwise specified in the specific discovery request, the relevant time period is January 1, 2012, to the present. 9 If any document requested is withheld on the basis of any claim or privilege or work product or otherwise, you are requested to comply with the requirements set forth in Rule 193.3 of the Texas Rules of Civil Procedure. IL DEFINITIONS 10. The term “documents” is used in the broadest sense and includes, but is not limited to, electronic information (as defined below), originals and any non-identical copies or reproductions of any written or recorded matter, whether printed, reproduced by any other mechanical or electronic process, or handwritten, including, but not limited to, drafts of any documents, revisions of drafts of any documents, and original or preliminary notes concerning drafts of any documents, books, accounts, journals, correspondence, memorandum, letters, reports, agreements, communications (including inter- and intra-office and inter- and intra-company communications), e-mails, Internet communications, telegrams, telexes, cables, indices, pictures, blueprints, sketches, plans, drawings, diagrams, projections, bulletins, advertising literature, brochures, pamphlets, circulars, codes as well as other devices to decipher abbreviations or other notations, computer printouts, analytical records, memoranda, summaries, diaries, forecasts, photographs, photocopies, recordings, tape recordings, motion picture films, graphs, note charts, notebooks, charts, minutes, notes or recordings of meetings, documents distributed at, generated for or as a result of meetings, lists of persons attending meetings, records, notes, reports and/or summaries of interviews, conversations, telephone calls, conferences, investigations or negotiations, opinions or reports of consultants, appraisals, press releases, newspaper articles, mailing lists, contracts, agreements, drafts, notes, marginal comments appearing on or affixed to any document, calendars, day-timers, datebooks, messages, letters of credit, financial statements, invoices, statements of account, receipts, promissory notes, security agreements, deeds of trust, instruments purporting to grant or evidencing any security interest or lien, loan agreements, credit and debit memoranda, cancelled checks and drafts (both front and back), check stubs, securities ledgers, and any other papers or writings of any character or description, including, but not limited to, any information contained in any computer or information retrieval device, and electronically stored data. PLAINTIFFS’ REQUEST FOR PRODUCTION OF DOCUMENTS AND THINGS REGARDING DEFENDANTS’ SPECIAL APPEARANCE PAGE3 11. The terms “communication” or “communicate” include any transfer or exchange between two or more persons of any information, whether through an intermediary or by written, electronic, computer or oral means, including, but not limited to, personal conversations, meetings, telephone calls, correspondence, e-mails, Internet communications, telegrams, telexes, cables, memoranda, and any other understandings between two or more people. 12. The term “person” includes natural persons, groups of natural persons acting in a collegial capacity (e.g., a committee or council), corporations, partnerships, associations, joint ventures, and any other incorporated or unincorporated business, governmental, public, social or legal entity. A reference to any person or entity shall include, when applicable, its parent and subsidiary companies, partners, general partners, limited partners, joint venturers, controlled persons, controlling persons, shareholders, officers, directors, employees, servants, agents, representatives, principals, privies or other persons acting on its behalf. 13. The terms “identification,” “identify,” or “identity” when used in reference to: (1) anatural individual, requires you to state his/her: (a) full name; (b) residential and business addresses and telephone numbers; and (c) any title(s) or position(s) held; (2) a corporation, requires you to state its: (a) full corporate name and any names under which it does business; (b) state and date of incorporation; (c) the address and telephone number of its principal place of business; and (d) the addresses of all of its offices; (3) a business, requires you to state: (a) the full name or style under which the business is conducted; (b) its business address or addresses and telephone numbers; (c) the type(s) of business(es) in which it is engaged; (d) the geographical area(s) in which it conducts those business(es); and (e) the identity of the person(s) who owns, operates and controls the business(es); (4) a document, requires you to state: (a) the number of pages and the nature of the document (e.g., letter, memorandum, e-mail, Internet communication); (b) its title and subject matter; (c) its date; (d) the name or names of its authors or persons who contributed to the authorship; (e) its recipients; and (f) its present location and custodian; (5) a communication or representation, requires you: (a) if any part of the communication or representation was written, to identify the document or documents which refer to or evidence the communication or representation; and (b) to the extent the communication or representation was nonwritten to (i) identify the person participating in the communication or representation; (ii) state the date, manner, place, and substance of the communication or representation; (6) a meeting, requires you: (a) if any part of the meeting was memorialized in writing, to identify the document(s) that refers to or evidences the meeting; and (b) to the extent that the meeting was not memorialized in writing, to (i) state the date and time of the meeting; (ii) state the location of the meeting; (iii) state the substance of the discussion at the meeting; and (iv) identify all persons who were present at or attended the meeting; (7) a lawsuit, requires you to state: (a) the name/style of the lawsuit; (b) the cause number; and (c) the city, state and court where it was filed. 14. The terms “relating,” “relate,” “related,” “concern,” or “concerning” mean referring to, having any relationship to, pertaining to, evidencing or constituting evidence of, in whole or in part, of the subject matter of the request. 15. The term “1547 CSR” means fifteenfortyseven Critical Systems Realty, LLC, its parent and subsidiary companies, partners, general partners, limited partners, joint venturers, PLAINTIFFS’ REQUEST FOR PRODUCTION OF DOCUMENTS AND THINGS REGARDING DEFENDANTS’ SPECIAL APPEARANCE PAGE 4 controlled persons, controlling persons, shareholders, officers, directors, employees, servants, agents, representatives, principals, privies or other persons acting on its behalf. 16. The term “Portfolio Manager” means Defendant U.S. Data Center Portfolio Manager, LLC, its subsidiary companies, members, managers, controlled persons, controlling persons, officers, employees, servants, agents, representatives, principals, privies or other persons acting on its behalf. 17. The term “Holdings IT” means Defendant Ramland Holdings II, LLC, its subsidiary companies, members, managers, controlled persons, controlling persons, officers, employees, servants, agents, representatives, principals, privies or other persons acting on its behalf. 18. The term “Ramland Management” means Defendant 1 Ramland Road Management, LLC, its subsidiary companies, members, managers, controlled persons, controlling persons, officers, employees, servants, agents, representatives, principals, privies or other persons acting on its behalf. 19. The terms “Defendants,” “you,” and “your” mean any one or more of Defendants Portfolio Manager, Holdings II, and Ramland Management. 20. The term “Arista” means Plaintiff Arista Investments, LLC, its parent and subsidiary companies, partners, general partners, limited partners, joint venturers, controlled persons, controlling persons, shareholders, officers, directors, employees, servants, agents, representatives, principals, privies or other persons acting on its behalf. 21. The term “Arista Trust’ means Plaintiff Arista Investments 401K Trust, its parent and subsidiary companies, partners, general partners, limited partners, joint venturers, controlled persons, controlling persons, shareholders, officers, directors, employees, servants, agents, representatives, principals, privies or other persons acting on its behalf. 22. The term “Edwards” means Plaintiff Aaron Edwards, individually. 23. The term “Earley” means Plaintiff Mark Earley, individually. 24. The term “Fox” means Plaintiff Brian Fox, individually. 25s. The term “Plaintiffs” means Plaintiffs Arista, Arista Trust, Edwards, Earley, and Fox, collectively. 26. The terms “this Action” and “this Lawsuit” refer to the above-captioned lawsuit, as may be amended and/or supplemented, including all claims, defenses and affirmative defenses filed in that cause. 27. The term “electronic information” refers to any electronically stored data on magnetic or optical storage media (e.g., hard drives or disks, backup tapes, CD-ROMs, DVD-ROMs, JAZ and Zip drives, and floppy disks) as an “active” file or files (i.e., readily readable by one or more PLAINTIFFS’ REQUEST FOR PRODUCTION OF DOCUMENTS AND THINGS REGARDING DEFENDANTS’ SPECIAL APPEARANCE PaGE5 computer applications or forensic software); any “deleted” but recoverable electronic files on said media; any electronic file fragments (i.e., files that have been deleted and partially overwritten with new data); and “slack” (i.e., data fragments stored randomly from random access memory on said media during the normal operation of a computer (RAM slacks) or residual data left on said media after new data has overwritten some but not all of previously stored data). 28. The term “metadata” refers to file information that is not readily visible during conventional access, including but not limited to the file name; name or identity of the actual author and the platform or software used to create the file; the date the file was created and a revision history setting forth the dates that underlying or related files were written to, modified, erased or deleted; the dates and times that the file was opened or otherwise accessed; comments, links and other hidden components; the storage path of the underlying and related files; the identity and location of the other related authors and documents; the directories and subdirectories of the file; and deleted files and temporary files that were erased and over-written. 29. The term “computer” shall include, but is not limited to, microchips, microcomputers (also known as personal computers), laptop computers, portable computers, notebook computers, palmtop computers (also known as personal digital assistants or PDA's), mobile telephones with internet capabilities, minicomputers and mainframe computers. 30. The term “computer system” when used in reference to any computer, includes, but is not limited to, the following information: (a) computer type, brand and model; (b) brand & version of all software, including operating system, private-and custom- developed applications, commercial applications, and/or shareware; and (©) communications capability, including asynchronous and/or synchronous, including, but not limited to, terminal to mainframe emulation, data download and/or upload capability to mainframe, and computer to computer connections via network, modem and/or direct connection. Til. PRIVILEGED OR EXEMPT DOCUMENTS If any document requested is withheld on the basis of any claim of privilege or work product, or otherwise, you are requested to, for each document withheld, provide Plaintiff with a description of the withheld document or information sufficient to enable Plaintiff to assess the applicability of the privilege, including the type of document, the general subject matter of the document, the date of the document, and where appropriate, the author, addressee, custodian, and recipients of the document along with any and all privilege(s) asserted with respect to the withheld document. When a document contains both privileged and non-privileged material, the non-privileged material must be disclosed to the fullest extent possible without thereby disclosing the privileged material. Ifa privilege is asserted with regard to part of the material contained in a document, the PLAINTIFFS’ REQUEST FOR PRODUCTION OF DOCUMENTS AND THINGS REGARDING DEFENDANTS’ SPECIAL APPEARANCE PAGE 6 party claiming the privilege must clearly indicate the portions as to which the privilege is claimed. When a document has been redacted or altered in any fashion, identify as to each document the reason for the redaction or alteration, the date of the redaction or alteration, and the person performing the redaction or alteration. Any redaction must be clearly visible on the redacted document. Iv. ELECTRONICALLY STORED INFORMATION The Requests include all documents, including electronically stored information (“ESI”), in or subject to your possession, custody, or control. Plaintiffs are prepared to discuss with you the methods of producing ESI. In the absence of an agreement, ESI should be produced in the following form: (1) all ESI should be produced as Type IV single page tiff files with the name of each tiff file being the Bates number contained on the corresponding page; (2) documents should not be divided across folder directories and an image load file (e.g., “.LFP” file) that defines all document page breaks should be provided; (3) the extracted full text from the body of each document should be produced as a “.TXT” file, and for each document