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Filing # 125929196 E-Filed 04/30/2021 11:48:55 AM
IN THE CIRCUIT COURT OF THE SEVENTEENTH JUDICIAL CIRCUIT
IN AND FOR BROWARD COUNTY, FLORIDA
CASE NO.: CACE 18-001883 (03)
KENNETH COLIN KEPLEY,
Plaintiff/Counter-Defendant,
v.
BISCAYNE CONSTRUCTION COMPANY,
INC., a Florida Corporation d/b/a BISCAYNE
ROOFING & WATERPROOFING SYSTEMS,
Defendant/Counter-Plaintiff,
and
RONALD A. LAING, an individual,
Defendant.
/
DEFENDANTS’ NOTICE OF
POSTPONEMENT OF DEPOSITION DUCES TECUM!
Defendants, Biscayne Construction Company, Inc. d/b/a Biscayne Waterproofing Systems
(“Biscayne”) and Ronald A. Laing (“Laing”) (Biscayne and Laing, collectively, “Defendants”),
hereby notice the postponement of the following deposition of a corporate representative of
Skilcon, Inc., to testify on behalf of Skilcon, Inc.
' This Notice of Postponement serves as a cancellation of the deposition duces tecum previously
scheduled for May 4, 2021, and the deposition will be rescheduled for a later date after conferring with
the deponent and counsel for the Plaintiff/Counter Defendant. The subject subpoena duces tecum
remains in full force and effect. Due to Covid-19, the deposition will take place via remote
videoconferencing.
ACTIVE: 13247374.1
*** FILED: BROWARD COUNTY, FL BRENDA D. FORMAN, CLERK 04/30/2021 11:48:55 AM.****Deponent Date and Time Location
Corporate
representative of Remote/Videoconferencing
Skilcon, Inc. May 4, 2021 at 9:30 a.m. (instructions to Follow)
The deposition will be given upon oral examination before an officer or notary public authorized
by law to take depositions. The deposition will be taken by an authorized court reporter affiliated
with Veritext Court Reporting, by stenographic means. The examination will continue from day
to day until completed. The deposition will be taken for the purpose of discovery, for use at trial,
or for such other purposes as are permitted under the applicable statutes, rules of procedure, and
court rules.
This is a deposition duces tecum, and the designation of materials to be produced and
instructions are attached hereto as Exhibit A.
Pursuant to Rule 1.310(b)(6) of the Florida Rules of Civil Procedure, Defendants have
designated the topics set forth in Exhibit B of this Notice for examination.
Respectfully submitted,
GUNSTER, YOAKLEY & STEWART, P.A.
Attorneys for Defendants
450 East Las Olas Boulevard, Suite 1400
Fort Lauderdale, Florida 33301
Tel: (954) 462-2000
By: _/s/ Joshua A. Levine
JONATHAN K. OSBORNE
josborne@gunster.com
Florida Bar No. 95693
NATHAN W. HILL
Florida Bar No. 91473
nhill@gunster.com
JOSHUA A. LEVINE
Florida Bar No. 106072
jlevine@gunster.com
ACTIVE: 13247374.1 2CERTIFICATE OF SERVICE
I hereby certify that on April 30, 2021, the foregoing document was electronically
filed using the E-filing Portal System, and a copy thereof has been furnished by email on
JOHN E. RODSTROM, ESQ., jrodstrom@conradscherer.com and
wrspleadings@conradscherer.com, of Conrad Scherer, LLP 633 S Federal Highway, #800, Fort
Lauderdale, FL 33301.
ACTIVE: 13247374.1 3EXHIBIT “A”
DEFINITIONS
1. “Kepley” “Plaintiff” “You” or “Your” shall mean Kenneth Colin Kepley.
2. “Laing” shall mean Ronald A. Laing.
3. “Biscayne” shall mean Biscayne Construction Company, Inc. d/b/a Biscayne
Waterproofing Systems.
4. “Defendants” as used herein refers collectively to Biscayne Construction Company,
Inc. d/b/a Biscayne Waterproofing Systems and Ronal A. Laing.
5. “Communication” or “communications” means any oral, written or electronic
utterance, notation or statement of any nature whatsoever, by and to whomsoever made, including,
but not limited to documents, e-mails, correspondence, letters, facsimiles, text messages,
iMessages, voice recordings, video recordings, voicemail, instant messages, e-communications, e-
communications accessed through “chat”, messaging, or social media applications whether
accessed through a mobile device, computer or tablet application, messages, emails or e-
communications accessed or posted via website or web portal, self-destructing messaging
applications (also referred to as disappearing or ephemeral messaging) including, by way of
example, but not limited to, Wickr, Signal, Snapchat or Confide, and all other conversations,
dialogues, discussions, interviews, conferences, meetings, consultations, agreements, and other
understandings or exchanges between or among two or more people.
6. “Document” or “Documents” means all paper documents, graphic or auditory
records or representations, tangible items, and electronically stored information, and shall have the
broadest possible meaning accorded to it consistent with Fla. R. Civ. P. 1.280 (which is
incorporated in this definition as if fully set forth), and includes, by way of illustration only and
not by way of limitation, the following items which are in your possession, control, knowledge, or
are known to you:
a. all written, paper or printed material of any kind, including, but not limited to: all
transmittal slips, memoranda, notes, schedules, agendas, notices, books, brochures,
calendars, employment files, announcements, meeting minutes, records of
meetings, records of conversations, newsletters, telegrams, summaries, lists,
compilations, facsimile transmissions, transcripts, diaries, appointment books,
agreements, contracts, reports, studies, checks, check stubs, invoices, financial
statements, bank statements, receipts, communications, interoffice and intraoffice
exchanges, conversations, inquiries, replies, correspondence, and letters, whether
in person, by telephone, in writing, or by means of any other transmittal devices,
and all originals, reproductions, copies, changes, amendments, drafts and all non-
identical copies of the foregoing;
b. graphic or auditory records or representations of any kind, including, but not limited
ACTIVE: 13247374.1 4to: all images, photographs, charts, drawings, sketches, diagrams, maps,
schematics, microfiche, microfilm, slides, videotapes, laser discs, digital versatile
discs, Blu-ray discs, UltraViolet discs, cassette tapes, reel to reel tapes, recordings,
sound bites, motion pictures, voice messages, and all originals, reproductions,
copies, changes, amendments, drafts and all non-identical copies of the foregoing;
and
c. electronically stored information, electronic, mechanical and electrical records or
representations of any kind including, but not limited to: all electronic
communications, text messages, e-mails, instant messages, computer logs, network
logs, Internet history, document files, spreadsheet files, presentation files, database
files, desktop publishing files, source code files, object code files, executable files,
data files, script files, project management files, text files, portable document
format files, tabulated data files, virtual machine files, XML files, webpage files,
image files, design files, GIS files, system files, compressed files, disk image files,
audio files, video files, backup files, metadata and all originals, reproductions,
copies, changes, amendments, drafts, and all non-identical copies of the foregoing
(defined herein as “ES7’; each individual electronically stored document is defined
herein as an “SJ document”);
For purposes of the foregoing, documents may be located, stored or archived in any
physical location or on any electronic storage media, including, without limitation, any computer,
server, appliance, cloud-based service, web-based service, database, internal hard drive, external
hard drive, solid-state drive, hard or floppy diskette, compact disc, digital versatile disc, Blue-ray
disc, UltraViolet disc, flash memory, flash card, thumb drive, cartridge, magnetic tape, mobile
phone, tablet device, or personal digital assistant. Moreover, for purposes of the foregoing, the
term “draft” means any earlier, preliminary, preparatory, or tentative version of all or part of a
document, whether or not such draft was superseded by a later draft and whether or not the draft’s
terms are the same as or different from the final document’s terms. Please note that “Document”
and “Documents” as defined herein specifically include “Communication” and “Communications”
as defined above.
7. “Native Format” means the file format of S/ in the application in which such ES/
was originally created.
8. “Person” as used herein means any natural person or any entity, including, without
limitation, any individual, public company, private company, firm, corporation, limited liability
company, joint venture, trust, proprietorship, tenancy, association, partnership, business, agency,
department, governmental body, bureau, board, commission, or any other form of public or private
entity. Person shall include all subsidiaries and affiliates, as well as the present and former
directors, officers, employees, attorneys, agents and anyone acting on behalf of, at the direction
of, or under the control of, the person or its subsidiaries or affiliates.
9. “Relates to” or “relating to” means authorizing, concerning, constituting,
comprising, containing, consisting of, connected with, describing, disclosing, discussing,
ACTIVE: 13247374.1 5evidencing, explaining, mentioning, pertaining to, proposing, reflecting, regarding, referring to,
directly or indirectly, setting forth, showing, or summarizing.
10. “Tagged Image File Format” ot “TIFF” refers to the CCITT Group IV graphic file
format for storing bit-mapped images.
11. Where appropriate:
i. use of the singular includes the plural, and vice versa;
ii. the past tense includes the present tense;
iii. the words “and” and “or” are both conjunctive and disjunctive;
iv. the words “all” and “any” mean “any and all”;
v. the word “including” means “including without limitation”; and
vi. use of the masculine includes the feminine, and vice versa.
INSTRUCTIONS
General Instructions:
1. In response to this Request for Production, you are required to furnish all
information and documents which are, or have been, in your possession, custody, or control, or in
the possession, custody, or control of your past or present agents, attorneys, accountants, advisors,
employees, independent contractors, companies or any other person or entity acting on your behalf.
2. Unless otherwise specifically stated in this Request for Production, the relevant
time period shall be from 2009, the date listed in paragraph 7 of the Complaint, and through the
filing of the Amended Complaint.
3. If any document is withheld under a claim of privilege or immunity, in order that
the Court and the parties may determine the validity of the claim of privilege or immunity, you
must provide sufficient information to determine the identity of the document as well as the basis
for any asserted claim of privilege or immunity. Documents shall be deemed adequately described
for this purpose if you have supplied the following information: (1) a description of the nature of
the document (e.g., letter or memorandum); (2) the date of the document; (3) the identity of the
person(s) who sent and received the original and any copy(ies) of the document as well as his or
her respective capacity; (4) the identity of the custodian of the document; (5) a description of the
subject matter of the document; (6) a description of the basis upon which you contend you are
entitled to withhold the document from production; and (7) the identity of all persons who have
seen the document.
4. If any document or portion thereof has been destroyed, redacted in whole or in part,
purged, or is no longer in your possession, custody or control, state: (1) the date of the occurrence
and reason why it was destroyed, redacted, purged, or no longer in your possession, custody or
control; (2) the person who destroyed, redacted purged or caused the document to no longer be in
your possession, custody or control; and (3) if the document was completely destroyed, the file
where the document was maintained before its destruction.
ACTIVE: 13247374.1 6ESI Instructions:
5. ESI Production Format. ESI shall be produced electronically, either in (1) Native
Format, or (2) as single-page, uniquely and sequentially numbered Group IV TIFF image files.
For each ESI document, all metadata must remain intact and all parent/child document
relationships must be maintained. All ESI shall be collected using methods that prevent the
spoliation of data.
6. Production Media. The production of ESI as described herein shall be made on an
external hard drive, flash drive, CD or DVD (“Production Media”). The Production Media shall
include a unique identifying label specifying: (a) your identity; (b) the date of the production of
ESI; and (c) the case name and number.
7. ESI of Limited Accessibility. If you contend that any ESI document responsive to
this Request for Production is not reasonably accessible: (1) timely identify such ESI document
with reasonable particularity; and (2) provide the basis for declining to produce the ESI document,
including, for example, any limitations on access, the likely costs that might be incurred in
accessing and producing the ESI document, the method used for storage of the ESI document and
all locations in which the ESI document is kept.
8. TIFF Production. ESI produced as TIFF image files shall be produced as follows:
(1) each production of TIFF image files shall be accompanied by a corresponding load file (“Image
Load File”); (2) each TIFF image file must contain the same information and same physical
representation as the Native Format file from which the TIFF image file was created; (3) each
TIFF image file must not be less than 300 dpi resolution; (4) each TIFF image file shall be
accompanied by an extracted text file containing the extracted text of the Native Format file from
which the TIFF image file was created; (5) each extracted text file shall be named to match the
endorsed number assigned to the first page of each corresponding TIFF image file; (6) the extracted
text files shall be accompanied by a Control List File (“LST”); (7) each production of TIFF image
files shall be accompanied by an image cross-reference load file, such as Opticon (“OPT”), which
shall provide the beginning and ending endorsed number of each TIFF image file and the number
of pages it includes; and (8) each production of TIFF image files must be accompanied by a data
load file (“Data Load File” or “DAT”) that contains both the hash value and all available metadata
of the Native Format files from which the TIFF image files were created. Further, the following
instructions apply to the production of TIFF image files:
a. Processing Specifications. For each Native Format file that is converted to
TIFF format: (1) all tracked changes shall be maintained so that all changes are
visible; (2) OLE Embedded files shall not be extracted as separate documents;
(3) author comments shall remain or be made visible; (4) hidden columns, cells,
rows, worksheets and other hidden data shall remain or be made visible; (5)
presenter notes shall remain or be made visible; and (6) to the extent ESI in a
foreign language is produced, processing of such ESI shall be unicode-
compliant.
ACTIVE: 13247374.1 7. Document Unitization. If a Native Format file that is converted to TIFF format
is more than one page, the unitization of the file and any attachments or affixed
notes must be maintained as it existed when collected. If unitization cannot be
maintained, the original unitization must be documented in the Data Load File
or otherwise electronically tracked.
Color. If a Native Format file that is converted to TIFF format contains color,
the TIFF image file need not be produced in color. However, Defendants
reserve the right to make a request for a file to be produced in color.
. Where TIFF Image File Format is Impracticable. In the event that production
of a Native Format file as a TIFF image would be impracticable, you shall
produce such file in Native Format with all metadata intact. You shall provide
a single page TIFF image placeholder referencing the title of the Native Format
file not being produced as a TIFF image.
Spreadsheets. All Microsoft Excel files, similar non-Microsoft spreadsheet
files, and graphical compilations of spreadsheet data, shall be produced in
Native Format with all cells, columns, rows and worksheets and other
information unhidden and expanded.
Right to Request Native Format files. Defendants reserve the right to demand
production in Native Format of any file produced by you as a TIFF image file.
DOCUMENTS REQUESTED
Skilcon, Inc.’s customer list from August 1, 2017 to the present.
All non-privileged documents and communications relating to Biscayne or Laing.
An organizational chart of Skilcon, Inc.
Profit and loss statements for Skilcon, Inc. from August 1, 2017 to the present.
General ledgers for Skilcon, Inc. from August 1, 2017 to the present.
Financial statements, balance sheets, and cash flow statements of Skilcon, Inc. from
August 1, 2017 to the present.
7.
Copies of state and federal income tax returns filed by Skilcon, Inc., from the years
2014 to the present.
ACTIVE: 13247374.18. All contracts or agreements, from August 1, 2017 to the present, between Skilcon,
Inc. and its clients who were previous, or are current, clients of Biscayne.
9. All non-privileged documents and communications, from August 1, 2017 to the
present, between Skilcon, Inc. and its clients who were previous, or are current, clients of Biscayne.
10. All non-privileged documents and communications relating to payments made by
Biscayne to Skilcon, Inc.
11. All non-privileged documents and communications relating to any reason Kepley
directed Biscayne to make payments to Skilcon, Inc.
12. All non-privileged documents and communications between Kepley and Kenneth
E. Kepley relating to Kepley’s request that Biscayne direct payments to Skilcon, Inc.
13. All non-privileged documents and communications between Kepley and Kenneth
E. Kepley relating to Kepley’s employment with Biscayne or Kepley’s compensation by Biscayne.
14. All non-privileged documents and communications between Kepley and Kenneth
E. Kepley relating to the allegations in the Complaint, Amended Complaint, or Counterclaim in
the instant matter.
ACTIVE: 13247374.1 9EXHIBIT “B”
Pursuant to Rule 1.310(b)(6) of the Florida Rules of Civil Procedure, Defendants designate
the topics identified below for examination. In construing these topics, all terms shall be construed
to encompass as broad a range of information as permitted under Florida Rule of Civil Procedure
1.310(b)(6).
The deponent(s) shall be prepared to address the following topics:
1. Skilcon, Inc.’s customers from August 1, 2017 to the present and customer lists
reflecting same.
2. Skilcon Inc.’s documents and communications relating to, Biscayne or Laing.
3. An organizational chart of Skilcon, Inc.
4. Profit and loss statements for Skilcon, Inc. from August 1, 2017 to the present.
5. General ledgers for Skilcon, Inc. from August 1, 2017 to the present.
6. Financial statements, balance sheets, and cash flow statements of Skilcon, Inc. from
August 1, 2017 to the present.
7. State and federal income tax returns filed by Skilcon, Inc., from the years 2014 to
the present.
8. Contracts or agreements, from August 1, 2017 to the present, between Skilcon, Inc.
and its clients who were previous, or are current, clients of Biscayne.
9. Documents and communications, from August 1, 2017 to the present, between
Skilcon, Inc. and its clients who were previous, or are current, clients of Biscayne.
10. All efforts to originate business for Skilcon, Inc. while Kepley was employed by
Biscayne.
ACTIVE: 13247374.1 10ll. Business information of Biscayne received, or shared, by Skilcon, Inc. or its
employees from August 1, 2017 to the present.
12. All non-privileged documents and communications relating to payments made by
Biscayne to Skilcon, Inc.
13. All non-privileged documents and communications relating to any reason Kepley
directed Biscayne to make payments to Skilcon, Inc.
14. All non-privileged documents and communications between Kepley and Kenneth
E. Kepley relating to Kepley’s request that Biscayne direct payments to Skilcon, Inc.
15. All non-privileged documents and communications between Kepley and Kenneth
E. Kepley relating to Kepley’s employment with Biscayne or Kepley’s compensation by Biscayne.
16. All non-privileged documents and communications between Kepley and Kenneth
E. Kepley relating to the allegations in the Complaint, Amended Complaint, or Counterclaim in
the instant matter.
17. Authentication of documents produced.
ACTIVE 12869898.1
ACTIVE: 13247374.1 il
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Filing # 125929196 E-Filed 04/30/2021 11:48:55 AM IN THE CIRCUIT COURT OF THE SEVENTEENTH JUDICIAL CIRCUIT IN AND FOR BROWARD COUNTY, FLORIDA CASE NO.: CACE 18-001883 (03) KENNETH COLIN KEPLEY, Plaintiff/Counter-Defendant, v. BISCAYNE CONSTRUCTION COMPANY, INC., a Florida Corporation d/b/a BISCAYNE ROOFING & WATERPROOFING SYSTEMS, Defendant/Counter-Plaintiff, and RONALD A. LAING, an individual, Defendant. / DEFENDANTS’ NOTICE OF POSTPONEMENT OF DEPOSITION DUCES TECUM! Defendants, Biscayne Construction Company, Inc. d/b/a Biscayne Waterproofing Systems (“Biscayne”) and Ronald A. Laing (“Laing”) (Biscayne and Laing, collectively, “Defendants”), hereby notice the postponement of the following deposition of a corporate representative of Skilcon, Inc., to testify on behalf of Skilcon, Inc. ' This Notice of Postponement serves as a cancellation of the deposition duces tecum previously scheduled for May 4, 2021, and the deposition will be rescheduled for a later date after conferring with the deponent and counsel for the Plaintiff/Counter Defendant. The subject subpoena duces tecum remains in full force and effect. Due to Covid-19, the deposition will take place via remote videoconferencing. ACTIVE: 13247374.1 *** FILED: BROWARD COUNTY, FL BRENDA D. FORMAN, CLERK 04/30/2021 11:48:55 AM.****Deponent Date and Time Location Corporate representative of Remote/Videoconferencing Skilcon, Inc. May 4, 2021 at 9:30 a.m. (instructions to Follow) The deposition will be given upon oral examination before an officer or notary public authorized by law to take depositions. The deposition will be taken by an authorized court reporter affiliated with Veritext Court Reporting, by stenographic means. The examination will continue from day to day until completed. The deposition will be taken for the purpose of discovery, for use at trial, or for such other purposes as are permitted under the applicable statutes, rules of procedure, and court rules. This is a deposition duces tecum, and the designation of materials to be produced and instructions are attached hereto as Exhibit A. Pursuant to Rule 1.310(b)(6) of the Florida Rules of Civil Procedure, Defendants have designated the topics set forth in Exhibit B of this Notice for examination. Respectfully submitted, GUNSTER, YOAKLEY & STEWART, P.A. Attorneys for Defendants 450 East Las Olas Boulevard, Suite 1400 Fort Lauderdale, Florida 33301 Tel: (954) 462-2000 By: _/s/ Joshua A. Levine JONATHAN K. OSBORNE josborne@gunster.com Florida Bar No. 95693 NATHAN W. HILL Florida Bar No. 91473 nhill@gunster.com JOSHUA A. LEVINE Florida Bar No. 106072 jlevine@gunster.com ACTIVE: 13247374.1 2CERTIFICATE OF SERVICE I hereby certify that on April 30, 2021, the foregoing document was electronically filed using the E-filing Portal System, and a copy thereof has been furnished by email on JOHN E. RODSTROM, ESQ., jrodstrom@conradscherer.com and wrspleadings@conradscherer.com, of Conrad Scherer, LLP 633 S Federal Highway, #800, Fort Lauderdale, FL 33301. ACTIVE: 13247374.1 3EXHIBIT “A” DEFINITIONS 1. “Kepley” “Plaintiff” “You” or “Your” shall mean Kenneth Colin Kepley. 2. “Laing” shall mean Ronald A. Laing. 3. “Biscayne” shall mean Biscayne Construction Company, Inc. d/b/a Biscayne Waterproofing Systems. 4. “Defendants” as used herein refers collectively to Biscayne Construction Company, Inc. d/b/a Biscayne Waterproofing Systems and Ronal A. Laing. 5. “Communication” or “communications” means any oral, written or electronic utterance, notation or statement of any nature whatsoever, by and to whomsoever made, including, but not limited to documents, e-mails, correspondence, letters, facsimiles, text messages, iMessages, voice recordings, video recordings, voicemail, instant messages, e-communications, e- communications accessed through “chat”, messaging, or social media applications whether accessed through a mobile device, computer or tablet application, messages, emails or e- communications accessed or posted via website or web portal, self-destructing messaging applications (also referred to as disappearing or ephemeral messaging) including, by way of example, but not limited to, Wickr, Signal, Snapchat or Confide, and all other conversations, dialogues, discussions, interviews, conferences, meetings, consultations, agreements, and other understandings or exchanges between or among two or more people. 6. “Document” or “Documents” means all paper documents, graphic or auditory records or representations, tangible items, and electronically stored information, and shall have the broadest possible meaning accorded to it consistent with Fla. R. Civ. P. 1.280 (which is incorporated in this definition as if fully set forth), and includes, by way of illustration only and not by way of limitation, the following items which are in your possession, control, knowledge, or are known to you: a. all written, paper or printed material of any kind, including, but not limited to: all transmittal slips, memoranda, notes, schedules, agendas, notices, books, brochures, calendars, employment files, announcements, meeting minutes, records of meetings, records of conversations, newsletters, telegrams, summaries, lists, compilations, facsimile transmissions, transcripts, diaries, appointment books, agreements, contracts, reports, studies, checks, check stubs, invoices, financial statements, bank statements, receipts, communications, interoffice and intraoffice exchanges, conversations, inquiries, replies, correspondence, and letters, whether in person, by telephone, in writing, or by means of any other transmittal devices, and all originals, reproductions, copies, changes, amendments, drafts and all non- identical copies of the foregoing; b. graphic or auditory records or representations of any kind, including, but not limited ACTIVE: 13247374.1 4to: all images, photographs, charts, drawings, sketches, diagrams, maps, schematics, microfiche, microfilm, slides, videotapes, laser discs, digital versatile discs, Blu-ray discs, UltraViolet discs, cassette tapes, reel to reel tapes, recordings, sound bites, motion pictures, voice messages, and all originals, reproductions, copies, changes, amendments, drafts and all non-identical copies of the foregoing; and c. electronically stored information, electronic, mechanical and electrical records or representations of any kind including, but not limited to: all electronic communications, text messages, e-mails, instant messages, computer logs, network logs, Internet history, document files, spreadsheet files, presentation files, database files, desktop publishing files, source code files, object code files, executable files, data files, script files, project management files, text files, portable document format files, tabulated data files, virtual machine files, XML files, webpage files, image files, design files, GIS files, system files, compressed files, disk image files, audio files, video files, backup files, metadata and all originals, reproductions, copies, changes, amendments, drafts, and all non-identical copies of the foregoing (defined herein as “ES7’; each individual electronically stored document is defined herein as an “SJ document”); For purposes of the foregoing, documents may be located, stored or archived in any physical location or on any electronic storage media, including, without limitation, any computer, server, appliance, cloud-based service, web-based service, database, internal hard drive, external hard drive, solid-state drive, hard or floppy diskette, compact disc, digital versatile disc, Blue-ray disc, UltraViolet disc, flash memory, flash card, thumb drive, cartridge, magnetic tape, mobile phone, tablet device, or personal digital assistant. Moreover, for purposes of the foregoing, the term “draft” means any earlier, preliminary, preparatory, or tentative version of all or part of a document, whether or not such draft was superseded by a later draft and whether or not the draft’s terms are the same as or different from the final document’s terms. Please note that “Document” and “Documents” as defined herein specifically include “Communication” and “Communications” as defined above. 7. “Native Format” means the file format of S/ in the application in which such ES/ was originally created. 8. “Person” as used herein means any natural person or any entity, including, without limitation, any individual, public company, private company, firm, corporation, limited liability company, joint venture, trust, proprietorship, tenancy, association, partnership, business, agency, department, governmental body, bureau, board, commission, or any other form of public or private entity. Person shall include all subsidiaries and affiliates, as well as the present and former directors, officers, employees, attorneys, agents and anyone acting on behalf of, at the direction of, or under the control of, the person or its subsidiaries or affiliates. 9. “Relates to” or “relating to” means authorizing, concerning, constituting, comprising, containing, consisting of, connected with, describing, disclosing, discussing, ACTIVE: 13247374.1 5evidencing, explaining, mentioning, pertaining to, proposing, reflecting, regarding, referring to, directly or indirectly, setting forth, showing, or summarizing. 10. “Tagged Image File Format” ot “TIFF” refers to the CCITT Group IV graphic file format for storing bit-mapped images. 11. Where appropriate: i. use of the singular includes the plural, and vice versa; ii. the past tense includes the present tense; iii. the words “and” and “or” are both conjunctive and disjunctive; iv. the words “all” and “any” mean “any and all”; v. the word “including” means “including without limitation”; and vi. use of the masculine includes the feminine, and vice versa. INSTRUCTIONS General Instructions: 1. In response to this Request for Production, you are required to furnish all information and documents which are, or have been, in your possession, custody, or control, or in the possession, custody, or control of your past or present agents, attorneys, accountants, advisors, employees, independent contractors, companies or any other person or entity acting on your behalf. 2. Unless otherwise specifically stated in this Request for Production, the relevant time period shall be from 2009, the date listed in paragraph 7 of the Complaint, and through the filing of the Amended Complaint. 3. If any document is withheld under a claim of privilege or immunity, in order that the Court and the parties may determine the validity of the claim of privilege or immunity, you must provide sufficient information to determine the identity of the document as well as the basis for any asserted claim of privilege or immunity. Documents shall be deemed adequately described for this purpose if you have supplied the following information: (1) a description of the nature of the document (e.g., letter or memorandum); (2) the date of the document; (3) the identity of the person(s) who sent and received the original and any copy(ies) of the document as well as his or her respective capacity; (4) the identity of the custodian of the document; (5) a description of the subject matter of the document; (6) a description of the basis upon which you contend you are entitled to withhold the document from production; and (7) the identity of all persons who have seen the document. 4. If any document or portion thereof has been destroyed, redacted in whole or in part, purged, or is no longer in your possession, custody or control, state: (1) the date of the occurrence and reason why it was destroyed, redacted, purged, or no longer in your possession, custody or control; (2) the person who destroyed, redacted purged or caused the document to no longer be in your possession, custody or control; and (3) if the document was completely destroyed, the file where the document was maintained before its destruction. ACTIVE: 13247374.1 6ESI Instructions: 5. ESI Production Format. ESI shall be produced electronically, either in (1) Native Format, or (2) as single-page, uniquely and sequentially numbered Group IV TIFF image files. For each ESI document, all metadata must remain intact and all parent/child document relationships must be maintained. All ESI shall be collected using methods that prevent the spoliation of data. 6. Production Media. The production of ESI as described herein shall be made on an external hard drive, flash drive, CD or DVD (“Production Media”). The Production Media shall include a unique identifying label specifying: (a) your identity; (b) the date of the production of ESI; and (c) the case name and number. 7. ESI of Limited Accessibility. If you contend that any ESI document responsive to this Request for Production is not reasonably accessible: (1) timely identify such ESI document with reasonable particularity; and (2) provide the basis for declining to produce the ESI document, including, for example, any limitations on access, the likely costs that might be incurred in accessing and producing the ESI document, the method used for storage of the ESI document and all locations in which the ESI document is kept. 8. TIFF Production. ESI produced as TIFF image files shall be produced as follows: (1) each production of TIFF image files shall be accompanied by a corresponding load file (“Image Load File”); (2) each TIFF image file must contain the same information and same physical representation as the Native Format file from which the TIFF image file was created; (3) each TIFF image file must not be less than 300 dpi resolution; (4) each TIFF image file shall be accompanied by an extracted text file containing the extracted text of the Native Format file from which the TIFF image file was created; (5) each extracted text file shall be named to match the endorsed number assigned to the first page of each corresponding TIFF image file; (6) the extracted text files shall be accompanied by a Control List File (“LST”); (7) each production of TIFF image files shall be accompanied by an image cross-reference load file, such as Opticon (“OPT”), which shall provide the beginning and ending endorsed number of each TIFF image file and the number of pages it includes; and (8) each production of TIFF image files must be accompanied by a data load file (“Data Load File” or “DAT”) that contains both the hash value and all available metadata of the Native Format files from which the TIFF image files were created. Further, the following instructions apply to the production of TIFF image files: a. Processing Specifications. For each Native Format file that is converted to TIFF format: (1) all tracked changes shall be maintained so that all changes are visible; (2) OLE Embedded files shall not be extracted as separate documents; (3) author comments shall remain or be made visible; (4) hidden columns, cells, rows, worksheets and other hidden data shall remain or be made visible; (5) presenter notes shall remain or be made visible; and (6) to the extent ESI in a foreign language is produced, processing of such ESI shall be unicode- compliant. ACTIVE: 13247374.1 7. Document Unitization. If a Native Format file that is converted to TIFF format is more than one page, the unitization of the file and any attachments or affixed notes must be maintained as it existed when collected. If unitization cannot be maintained, the original unitization must be documented in the Data Load File or otherwise electronically tracked. Color. If a Native Format file that is converted to TIFF format contains color, the TIFF image file need not be produced in color. However, Defendants reserve the right to make a request for a file to be produced in color. . Where TIFF Image File Format is Impracticable. In the event that production of a Native Format file as a TIFF image would be impracticable, you shall produce such file in Native Format with all metadata intact. You shall provide a single page TIFF image placeholder referencing the title of the Native Format file not being produced as a TIFF image. Spreadsheets. All Microsoft Excel files, similar non-Microsoft spreadsheet files, and graphical compilations of spreadsheet data, shall be produced in Native Format with all cells, columns, rows and worksheets and other information unhidden and expanded. Right to Request Native Format files. Defendants reserve the right to demand production in Native Format of any file produced by you as a TIFF image file. DOCUMENTS REQUESTED Skilcon, Inc.’s customer list from August 1, 2017 to the present. All non-privileged documents and communications relating to Biscayne or Laing. An organizational chart of Skilcon, Inc. Profit and loss statements for Skilcon, Inc. from August 1, 2017 to the present. General ledgers for Skilcon, Inc. from August 1, 2017 to the present. Financial statements, balance sheets, and cash flow statements of Skilcon, Inc. from August 1, 2017 to the present. 7. Copies of state and federal income tax returns filed by Skilcon, Inc., from the years 2014 to the present. ACTIVE: 13247374.18. All contracts or agreements, from August 1, 2017 to the present, between Skilcon, Inc. and its clients who were previous, or are current, clients of Biscayne. 9. All non-privileged documents and communications, from August 1, 2017 to the present, between Skilcon, Inc. and its clients who were previous, or are current, clients of Biscayne. 10. All non-privileged documents and communications relating to payments made by Biscayne to Skilcon, Inc. 11. All non-privileged documents and communications relating to any reason Kepley directed Biscayne to make payments to Skilcon, Inc. 12. All non-privileged documents and communications between Kepley and Kenneth E. Kepley relating to Kepley’s request that Biscayne direct payments to Skilcon, Inc. 13. All non-privileged documents and communications between Kepley and Kenneth E. Kepley relating to Kepley’s employment with Biscayne or Kepley’s compensation by Biscayne. 14. All non-privileged documents and communications between Kepley and Kenneth E. Kepley relating to the allegations in the Complaint, Amended Complaint, or Counterclaim in the instant matter. ACTIVE: 13247374.1 9EXHIBIT “B” Pursuant to Rule 1.310(b)(6) of the Florida Rules of Civil Procedure, Defendants designate the topics identified below for examination. In construing these topics, all terms shall be construed to encompass as broad a range of information as permitted under Florida Rule of Civil Procedure 1.310(b)(6). The deponent(s) shall be prepared to address the following topics: 1. Skilcon, Inc.’s customers from August 1, 2017 to the present and customer lists reflecting same. 2. Skilcon Inc.’s documents and communications relating to, Biscayne or Laing. 3. An organizational chart of Skilcon, Inc. 4. Profit and loss statements for Skilcon, Inc. from August 1, 2017 to the present. 5. General ledgers for Skilcon, Inc. from August 1, 2017 to the present. 6. Financial statements, balance sheets, and cash flow statements of Skilcon, Inc. from August 1, 2017 to the present. 7. State and federal income tax returns filed by Skilcon, Inc., from the years 2014 to the present. 8. Contracts or agreements, from August 1, 2017 to the present, between Skilcon, Inc. and its clients who were previous, or are current, clients of Biscayne. 9. Documents and communications, from August 1, 2017 to the present, between Skilcon, Inc. and its clients who were previous, or are current, clients of Biscayne. 10. All efforts to originate business for Skilcon, Inc. while Kepley was employed by Biscayne. ACTIVE: 13247374.1 10ll. Business information of Biscayne received, or shared, by Skilcon, Inc. or its employees from August 1, 2017 to the present. 12. All non-privileged documents and communications relating to payments made by Biscayne to Skilcon, Inc. 13. All non-privileged documents and communications relating to any reason Kepley directed Biscayne to make payments to Skilcon, Inc. 14. All non-privileged documents and communications between Kepley and Kenneth E. Kepley relating to Kepley’s request that Biscayne direct payments to Skilcon, Inc. 15. All non-privileged documents and communications between Kepley and Kenneth E. Kepley relating to Kepley’s employment with Biscayne or Kepley’s compensation by Biscayne. 16. All non-privileged documents and communications between Kepley and Kenneth E. Kepley relating to the allegations in the Complaint, Amended Complaint, or Counterclaim in the instant matter. 17. Authentication of documents produced. ACTIVE 12869898.1 ACTIVE: 13247374.1 il