FILED: NEW YORK COUNTY CLERK 06/13/ :13 PM INDEX NO /2016 NYSCEF DOC. NO. 6 RECEIVED NYSCEF: 06/13/2016

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1 FILED: NEW YORK COUNTY CLERK 06/13/ :13 PM INDEX NO /2016 NYSCEF DOC. NO. 6 RECEIVED NYSCEF: 06/13/2016 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK VERDE ELECTRIC CORP., -against- Plaintiff, PACS INDUSTRIES, INC. (a New York corporation), PACS SWITCHGEAR, LLC, and PACS INDUSTRIES, INC. (an Ohio corporation), Index No.: /2016 PLAINTIFF S FIRST REQUEST FOR DISCOVERY AND INSPECTION Defendants. PLEASE TAKE NOTICE, that pursuant to Rule 3120 of the Civil Practice Law and Rules, defendant PACS Switchgear, LLC ( PACS ) is hereby required to produce and permit plaintiff Verde Electric Corp. ( Verde ) to inspect and copy the documents and things specified herein, which are in the possession, custody or control of PACS, its attorneys, agents, representatives, or employees in accordance with the definitions and instructions set forth herein. The documents are to be produced on July 8, 2016, at the offices of Cermele & Wood LLP, 2 Westchester Park Drive, Suite 205, White Plains, New York 10604, or at such other and further location as may be mutually agreed upon by the respective parties, at which time they will be physically inspected, copied or mechanically reproduced and returned, or that in lieu of producing the items demanded herein, the defendant may submit to the undersigned true and complete copies of the items demanded herein at any time prior to the aforesaid date. DEFINITIONS AND INSTRUCTIONS The term document as used herein shall mean writings of every kind and nature including, but not limited to, the originals (or any copies when originals are not available), or any non-identical copies (whether different from the originals because of notes made on such copies or otherwise) of writings, or recordings or every kind and description, whether made by hand or 1 of 15

2 by mechanical, electronic, microfilm, photographs, computer or other means, including, but not limited to, letters, electronic mail, text messages, computer files, notes, telegrams, correspondence, reports, proposals, change orders, certifications, memoranda, agreements, contracts, subcontracts, contract modifications, field directives, clarifications, work orders, recordings, memorials of telephone conversations, meeting minutes, conference minutes, interoffice and intra-office communications, work papers, cost sheets, estimating sheets, bids, bid evaluation records or notes, invoices, bills, purchase orders, vouchers, pay requests, time cards, work records, progress reports, inspection reports, drawings, plans, specifications, shop drawings, photographs, sketches, diagrams, ledger books or other accounting records, court pleadings, checks, drafts, audio or video recordings, manuals, instructions, and drafts, alterations, modifications, changes and amendments of any of the foregoing, or any other written material of any nature whatsoever, as well as all graphic or oral records or representations of any kind (including, without limitation, charts, graphs, videotapes, recordings or motion pictures), and any electronic, mechanical, electrical, magnetic or computer records or representations of any kind (including, without limitation, computer files, audio and video tapes, cassettes, discs or recordings in computer memories) and any other written, recorded or reproduced material, in the possession, custody or control of PACS, its attorneys, consultants, executives, contractors, agents, employees or representatives, or in the constructive possession, custody or control of PACS, its attorneys, consultants, executives, contractors, agents, employees or representatives, regardless of the source of such documents. The term communication as used herein shall mean any interchange, oral or written, formal or informal, at any time or place, and under any circumstance, whereby information of any nature was transmitted, recorded, transferred and/or memorialized by any method. The terms relate to or relating to as used herein shall mean all information or documentation which is relevant in any way to the subject matter, including without limitation to 2 2 of 15

3 the foregoing, all information or documentation which contains, records, reflects, summarizes, evaluates, comments upon, transmits, or discusses the subject matter of any request for production. The term any as used herein should be understood to include and encompass all, or should be understood to include and encompass and ; and and should be understood to include and encompass or as necessary to bring within the scope of a particular request any document which might otherwise be construed to be outside its scope. The term Verde as used herein refers to the plaintiff Verde Electric Corp., including any subsidiaries, affiliated companies, predecessors-in-interest, directors, executives, officers, employees, agents, consultants and representatives thereof. The term PACS Ohio shall mean the corporate entity known as PACS Industries, Inc., which was incorporated under the laws of the State of Ohio, including any divisions, departments, subsidiaries, affiliated companies, predecessors-in-interest, directors, executives, officers, employees, agents, consultants and representatives thereof. The term PACS NY shall mean the corporate entity known as PACS Industries, Inc., which was incorporated under the laws of the State of New York, including any divisions, departments, subsidiaries, affiliated companies, predecessors-in-interest, directors, executives, officers, employees, agents, consultants and representatives thereof. The term PACS Switchgear shall mean the limited liability company known as PACS Switchgear, LLC, including any divisions, departments, subsidiaries, affiliated companies, predecessors-in-interest, directors, executives, officers, employees, agents, consultants and representatives thereof. The term Settlement Agreement means the November 2013 Settlement Agreement alleged in Verde s complaint. 3 3 of 15

4 The term Foreclosure Sale means the private foreclosure sale of assets belonging to PACS NY and/or PACS Ohio pursuant to Article 9 of the Uniform Commercial Code that allegedly occurred sometime in early This request for the production of documents is to be treated as continuing in nature. If documents become known and available between the time of production and the time of trial, your response should be promptly supplemented. If such information is not provided, the undersigned will move at the time or trial to exclude from evidence any documents requested and not provided. Should you be unable to provide documents to any one request or portion thereof, state the reason why and identify the documents or categories of documents which have not been produced. Documents produced in response to this request should be organized and segregated from other documents produced in such a manner so as to render it clear to the requesting party which documents are responsive to a specific request herein. If any request is deemed to call for the production of privileged materials of whatever kind, and such privilege is asserted, identify in writing each document so withheld and provide (a) a statement of the basis for the claim of privilege, work product or other ground of nondisclosure; and (b) a brief description of the document, including: (i) the date of the document; (ii) the number of pages, attachments and appendices; (iii) the names of its authors, or preparers and an identification by employment and title of each such person; (iv) the name of each person who was sent, shown or blind-or carbon copied the document, or has had access to or custody of the document, together with an identification for each such person; (v) the present custodian; and (vi) the subject matter of the document. 4 4 of 15

5 Where identification of documents is required, set forth the dates, titles, authors, addresses, parties copied, and the substance thereof with sufficient particularity to facilitate a specific request for their production. REQUESTS FOR PRODUCTION 1. Any and all documents reflecting or identifying the present owners, members, shareholders or other equity stakeholders of PACS Switchgear. 2. Any and all documents reflecting or identifying any past owners, members, shareholders or other equity stakeholders of PACS Switchgear. 3. Any and all documents reflecting or identifying the percentage ownership or equity of all present owners, members, shareholders or other equity stakeholders of PACS Switchgear. 4. Any and all documents reflecting or identifying any change in the percentage ownership or equity of all present owners, members, shareholders or other equity stakeholders of PACS Switchgear since the inception of the company. 5 5 of 15

6 5. Any and all documents reflecting or identifying all present officers, directors, managers, or management-level employees of PACS Switchgear from its formation to the present. 6. Any and all documents in the possession, custody or control of PACS Switchgear reflecting or identifying all officers, directors, managers, or management-level employees of PACS Ohio and PACS NY between January 1, 2012 and May 9, Any and all documents relating to the Foreclosure Sale. 8. Any and all contracts, agreements, asset purchase agreements (including all schedules), or other similar documents relating in any way to the acquisition of the assets of PACS Ohio and/or PACS NY by PACS Switchgear. 9. Any and all documents relating to the sales of assets by PACS NY and/or PACS Ohio in a secured party sale to PACS Switchgear pursuant to N.Y. U.C.C Law and Ohio R.C occurring on or about May 9, of 15

7 10. Any and all documents, including employee or personnel rosters, that list or otherwise identify all employees of PACS Switchgear at any time from May 9, 2014 to the present. 11. Any and all documents, including employee or personnel rosters, in the possession, custody or control of PACS Switchgear that list or otherwise identify all employees of PACS NY or PACS Ohio between January 1, 2012 and May 9, Any and all documents in the possession custody or control of PACS Switchgear setting forth or otherwise identifying all individuals or entities that held any equity or ownership interest in PACS Ohio or PACS NY within five (5) years preceding May 9, Any and all organizational documents of PACS Switchgear, including, but not limited to, articles of incorporation, operating agreements, member agreements, shareholder agreements, and any amendment(s) thereto. 7 7 of 15

8 14. Any and all documents in the possession custody or control of PACS Switchgear relating to or setting forth any ownership interest of DeltaPoint Capital Management, LLC and/or DeltaPoint Capital IV, L.P. (or any affiliate thereof) in PACS Ohio and/or PACS NY. 15. Any and all documents in the possession, custody or control of PACS Switchgear relating to or setting forth the ownership interest of DeltaPoint Capital Management, LLC and/or any related entity in PACS Switchgear. 16. Any and all bylaws, resolutions, and/or meeting or organizational minutes of PACS Switchgear that relate in any way to the Foreclosure Sale and/or the acquisition of assets previously belonging to PACS Ohio and/or PACS NY. 17. Any and all documents in the possession, custody or control of PACS Switchgear relating to our setting forth any agreement by DeltaPoint Capital Management, 8 8 of 15

9 LLC (or any affiliate thereof) to loan or lend money to PACS Switchgear, PACS NY and/or PACS Ohio. 18. Any and all documents in the possession, custody or control of PACS Switchgear relating to or setting forth any agreements or understanding by DeltaPoint Capital Management, LLC (or any affiliate thereof) regarding the Foreclosure Sale. 19. Any and all bylaws, resolutions, and/or meeting or organizational minutes of PACS Ohio and/or PACS NY in the possession, custody or control of PACS Switchgear that relate in any way to the Foreclosure Sale and/or the acquisition of their assets by PACS Switchgear. 20. Any and all documents, including organizational charts, illustrating the corporate structure and/or ownership structure of PACS Switchgear. 9 9 of 15

10 21. Any and all documents in the possession, custody or control of PACS Switchgear, including organizational charts, illustrating the corporate structure and/or ownership structure of PACS Ohio and/or PACS NY. 22. Any and all documents, including organizational charts, illustrating the structure of the management and workforce of PACS Switchgear. 21. Any and all documents, including organizational charts, illustrating the structure of the management and workforce of PACS Ohio and/or PACS NY. 22. Any and all s, correspondence or other communications between or among any of the following persons or entities relating in any way to the Foreclosure Sale: a. PACS Switchgear; b. PACS Ohio; c. PACS NY; d. DeltaPoint Capital Management, LLC; of 15

11 e. DeltaPoint Capital IV, L.P.; f. American Industrial Acquisition Corporation; g. Tri-State Capital Bank; or h. Switchgear Acquisition, Inc. 23. Any and all s, correspondence or other communications between or among any of the following persons or entities relating to or mentioning in any way Verde: a. PACS Switchgear; b. PACS Ohio; c. PACS NY; d. DeltaPoint Capital Management, LLC e. DeltaPoint Capital IV, L.P.; f. American Industrial Acquisition Corporation; g. Tri-State Capital Bank; h. Switchgear Acquisition, Inc of 15

12 24. Any and all documents, including brochures, specifications, advertisements, and/or other marketing materials, describing PACS Switchgears products and/or product lines. 25. Any and all documents, including brochures, specifications, advertisements, and/or other marketing materials, in the possession, custody or control of PACS Switchgear describing PACS Ohio and/or PACS NY products and/or product lines. 26. Any and all documents and/or financial records, including income statements, balance sheets, profit and loss statements, cash flow statements, or other similar documents, for PACS Switchgear since its inception through the present. 27. Any and all documents and/or financial records in any way identifying the assets, liabilities, and/or equity of PACS Switchgear from its inception through the present of 15

13 28. Any and all documents and/or financial records in the possession, custody and/or control of PACS Switchgear, including income statements, balance sheets, profit and loss statements, cash flow statements, or other similar documents, for PACS Ohio and/or PACS NY for the three (3) year period before May 9, Any and all documents and/or financial records in the possession, custody and/or control of PACS Switchgear in any way identifying the assets, liabilities, and/or equity of PACS Ohio and/or PACS NY for the three (3) year period before May 9, Any and all documents in PACS Switchgear's possession, custody or control relating in any way to the Settlement Agreement. 31. Any and all internal memoranda, notes, or communications relating in any way to the allegations in Verde s complaint of 15

14 32. Any documents, including customer lists, purchase orders, and invoices, identifying all customers to which PACS Switchgear has sold any product or service since May 9, Any documents in the possession, custody or control, of PACS Switchgear, including customer lists, purchase orders, and invoices, identifying all customers to which PACS Ohio and/or PACS NY sold any product or service in the five (5) years prior to May 9, The report of any expert witness you intend to call as a witness at time of trial. 35. The curriculum vitae of any expert witness you intend to call as a witness at time of trial of 15

15 36. Any and all exhibits you intend to introduce at time of trial. Dated: White Plains, New York June 13, 2016 CERMELE & WOOD LLP Attorneys for Plaintiff By: Michael R. Wood 2 Westchester Park Drive, Suite 205 White Plains, New York (914) mike@cw.legal To: Stuart A. Laven, Esq. Cavitch, Familo & Durkin Co., LPA 830 Third Avenue, 5 th Floor New York, New York of 15