Oro BRC4, LLC v. Silvertree Apartments, Inc.
Oro BRC4, LLC v. Silvertree Apartments, Inc.
2022 WL 18582454 (S.D. Ohio 2022)
November 10, 2022
Stich, Jr., Carl J., Special Master
Summary
The court ordered Borror to produce ESI related to the management of the Karric North Property, maintenance and repair of the Water Supply Lines, communications between Karric North Apartments and its shareholders, painting of walls, rental concessions, and payments to Borror Management. The court determined that this ESI was important to the case as it may provide evidence of Borror's alleged active concealment of latent defects and improper and unreasonable rental discounts, as well as Borror's alleged breach of the Purchase Agreement.
Additional Decisions
ORO BRC4, LLC, Plaintiff,
v.
SILVERTREE APARTMENTS, INC., et al. Defendants.
ORO ORO CAPITAL ADVISORS, LLC, et al., Plaintiffs,
v.
BORROR CONSTRUCTION CO., LLC, et al., Defendants
v.
SILVERTREE APARTMENTS, INC., et al. Defendants.
ORO ORO CAPITAL ADVISORS, LLC, et al., Plaintiffs,
v.
BORROR CONSTRUCTION CO., LLC, et al., Defendants
Case No. 2:19-cv-04907, Case No. 2:19-cv-05087
United States District Court, S.D. Ohio, Eastern Division
Signed November 10, 2022
Counsel
David Matthew Scott, Lucas K. Palmer, Aaron Jones, Hayley Elizabeth Kick, Krista D. Warren, Brennan Manna & Diamond LLC, Columbus, OH, Marlon Alfred Primes, Brennan Manna & Diamond Brennan Manna & Diamond, Cleveland, OH, for Plaintiff.James Edward Arnold, Damion M. Clifford, Tiffany L. Carwile, Arnold & Clifford LLP, Columbus, OH, for Defendants.
Stich, Jr., Carl J., Special Master
SPECIAL MASTER'S REPORT, ORDERS, AND RECOMMENDATION ON DISCOVERY MATTERS
Report on Status of Proceedings
*1 In accordance with the Appointment Order (ECF No. 124), the Special Master conducted a series of discovery conferences. The parties submitted a list of discovery issues and participated in a scheduling conference with the Special Master on September 13, 2022. The parties then submitted their lists and positions on the pending discovery issues.
Videoconferences on pending discovery disputes were held on October 26, October 28, and November 2. The parties waived recording or engagement of a court reporter. Each party had an opportunity to state its position on each identified dispute. The Special Master evaluated the disputes based on the Federal Rules of Civil Procedure, case law interpreting the rules, and prior orders of the Court in these proceedings.
The Special Master gave preliminary rulings and guidance at each conference and later provided the parties with a draft of written orders. The parties and the Special Master conferred on November 9 for questions and clarifications as to the orders.
Orders and Recommendations
1. Oro Capital Advisors, Inc., et al. v. Borror Construction Co., LLC (“Construction Case”)
A. Fees Regarding Motion for Sanctions
Oro requests that the Special Master consider and make a recommendation regarding the amount of the sanctions award for prior orders issued by the Court. Borror does not consent to the Special Master assuming jurisdiction over those sanctions. The Special Master's responsibilities and scope of authority is limited to specific discovery matters. (ECF No. 124 at 2.) The grant of authority does not include ruling on sanctions other than other than for a party's failure to “comply with an order or other directive issued by the Special Master.” Id. at 5 (emphasis added). The Special Master accordingly denies Oro's request.
B. Redaction of Documents
Oro contends that Borror has improperly redacted portions of numerous documents without providing adequate explanation. Borror argues that it is entitled to redact non-responsive portions of documents, and that such redactions do not deny Oro access to discoverable information.
The Special Master lacks sufficient information to evaluate the parties’ positions. On or before November 17, Oro will identify 50 documents which it alleges to contain improper redactions. Borror will provide to the Special Master copies of the redacted and unredacted documents for in camera review. The Special Master will notify the parties of further proceedings after completion of the review.
C. Potential Witnesses/Deponents
1. Int. No. 22 (1st Set Oro Case)[1]
*2 Oro asks for the identity of persons “not already identified in your responses to the previous interrogatories” who may have knowledge about claims or counterclaims. Borror objects, arguing that the identities of all such persons have either been disclosed or are contained in produced documents. Oro's request is proper and not unduly burdensome. Borror should respond to the interrogatory by identifying any persons with knowledge not identified in response to a prior interrogatory. The response may identify the records in which such identities are contained if such identification complies with Fed. R. Civ. P. 33(d).
D. Sage
Borror used a computer software system called Sage to conduct its accounting for the Borror Construction project. Oro argues that it should have full access to Sage based on language in the Construction Agreement requiring Borror to keep records and make them available to Oro. Borror has produced some of the information contained in Sage, but Oro argues that Borror has not produce all of the information relating to the Borror Construction project. Borror has refused to give Oro unrestricted access because the system contains information on other projects and categories of information, and Oro has access to other systems containing the relevant information.
Oro acknowledges that the information it seeks could be obtained through depositions. During the discovery conference the parties agreed that this request should be deferred until the relevant witnesses have been deposed.
E. Imaging of Devices
Oro contends that the Court ordered Borror to do an imaging sample of certain laptop and other computer devices for certain employees and former employees. Oro asks the Special Master to order Borror to produce the hit reports. The parties confirmed that Borror produced the hit reports on or before November 4, 2022.
F. Spoliation
A recurring objection to Oro's discovery requests about potential lost or destroyed records is that the complaint does not contain a spoliation claim. The absence of a spoliation claim does not foreclose discovery on the existence or destruction of relevant documents. A party is entitled to inquire into the preservation of records because their unavailability may require other avenues of discovery on the merits and possible remedies under the Civil Rules — e.g., Fed. R. Civ. P. 37(e) (failure to preserve electronically stored information). Borror's objection on the basis that the complaint fails to allege spoliation is unmerited.
1. Additional 30(b)(5) Deposition
The parties agreed to meet and confer by November 15, 2022 as to the need an scope of an additional 30(b)(5) deposition.
2. Deletion/Destruction of Information
a. Int No. 9 (1st Set Oro Case)[2]
Oro asks Borror to identify information in existence as of July 22, 2019, that has since been deleted, destroyed, or is now otherwise unavailable. The request is proper to the extent that it seeks information about lost records relevant to the claims and counterclaims. Borror should therefore respond.
ii. Int. No. 11 (1st Set Oro Case);[4]
*3 Oro alleges that Borror has not provided the dates upon which each person was notified of the litigation hold letter. The identity of recipients and timing of notice is directly relevant to Oro's determination of whether documents have been properly retained. The burden of production is minimal. Borror is to provide the dates and parties to whom it sent notice of the litigation hold, to the extent the information is available.
b. Litigation Hold Documents
i. RFP No. 28 (1st Set Oro Case);[5]
ii. Instructions/Memos/Communications Regarding Litigation Holds
a) RFP No. 29 (1st Set Oro Case);[6]
iii. Communications Regarding Litigation Hold
a) RFP No. 34 (1st Set Oro Case);[7]
Oro requests Borror's documents related to litigation holds. As with the prior request, those documents are relevant to the preservation of evidence. Borror is to respond by producing the relevant non-privileged documents.
c. Deletion of Emails and Email Accounts
i. Communications Regarding Deletion of Rankey/Weaver Emails
a) RFP No. 16 (1st Set Oro Case);[8]
ii. Efforts to Recover Deleted Emails
a) RFP No. 18 (1st Set Oro Case);[9]
Oro asks for documents regarding communication about the Rankey and Weaver email account and efforts to retrieve them. Borror has agreed to perform another search for responsive documents. Borror's search will also include records for Lori Steiner.
d. Big Clean up
i. RFP No. 23 (1st Set Oro Case);[10]
Borror has agreed to perform another search for responsive records. Oro is to provide suggested search terms on or before November 15, 2022.
4. RDI – Company that Hosts Email for Borror
*4 RDI hosted and/or provided email services to Borror. Oro argues that Matt Cook instructed RDI to delete certain email accounts after he received a litigation hold letter, and that RDI lost other emails due to a power outage. Borror contends that it answered these questions in depositions and that RDI produced documents in response to a subpoena.
a. RDI Policies
i. RFP No. 20 (1st Set Oro Case);[11]
b. Borror Agreements with RDI
i. RFP No. 24 (1st Set Oro Case);[12]
c. Work Tickets/Requests for Service, Communications with RDI
i. RFP No. 25 (1st Set Oro Case);[13]
d. Communications Between Counsel for RDI and Borror's Counsel
i. RFP No. 26 (1st Set Oro Case);[14]
e. Communications with RDI about Litigation Holds
i. RFP No. 27 (1st Set Oro Case);[15]
Borror agrees to conduct a search and respond to items a, b, c, and e. Borror stands by its objection to certain documents covered by item d on the basis of attorney-client privilege and work product. Borror will provide a privilege log. If requested by Oro, the Special Master will review the withheld documents in camera to determine whether claims of privilege and work product justify Borror's position.
b. Documents Relating to Laptop
i. RFP No. 31 (1st Set Oro Case);[17]
c. Notices or Reports to Law Enforcement or Insurance
i. RFP No. 32 (1st Set Oro Case);[18]
d. Communications Regarding Purported Theft of Laptop;
i. RFP No. 33 (1st Set Oro Case);[19]
*5 A laptop belonging to one of Borror's employees was stolen. Oro seeks discovery regarding efforts to retrieve the laptop and documents it might have contained. To the extent any documents relevant to the litigation were contained on the stolen laptop and also preserved by Borror elsewhere, those documents should have been produced in the normal course of discovery. The burden upon Borror to locate and produce documents related to the theft and efforts to retrieve the laptop far exceeds any likely benefits. Borror's objection to the requests is sustained.
6. Custodial Interviews
a. RFP No. 17 (1st Set Oro Case);[20]
b. RFP No. 21 (1st Set Oro Case);[21]
Oro seeks information regarding Borror's custodial interviews about electronically stored information. Borror objects that such interviews were conducted by counsel and are therefore privileged. Borror need not produce documents covered by the privilege. Borror will confirm that there are no documents other than attorney-client documents and will produce any responsive unprivileged documents.
7. Matt Cook Deposition Documents
a. RFP No. 22 (1st Set Oro Case)[22]
Oro seeks documents relied upon and reviewed by Borror corporate designee Matt Cook in preparation for and conduct of his deposition. Borror is to produce any such documents identified by Mr. Cook.
G. Search Terms
Borror ran search terms on ESI to identify responsive documents after the start of the litigation. Borror contends that its search terms were expansive and would have captured all reasonably identifiable relevant documents. Oro asks that Borror run additional search terms. Borror objects that Oro's request was six months late under the terms of the ESI Protocol and would require significant additional time and expense. After conducting the initial search Borror changed ESI storage vendors and would need to upload the documents for a new search and incur additional storage costs.
Borror has agreed to consult with its vendor on the additional expense and will advise Oro. This issue is deferred until the parties have further conferred on Oro's request.
H. Borror Vendors
1. Prior Projects for Borror
a. Int. No. 19 (1st Set Holmes Case);[23]
*6 Oro asks Borror to identify other projects on which it used vendors hired under the Construction Agreement. It requested Borror go back ten years but is willing to accept five. Borror objects to relevancy and the burden of answering. Oro argues that prior work for Borror could lead to discovery and evidence regarding performance and pricing relevant to the Construction Case. Oro's request is appropriate, but the ten-year time period is excessive. Borror is to identify vendors on the Oro project who also provided labor or materials on prior projects, together with the identification of the project and owner, for the period 2013 to 2018.
2. Prices Charged by Borror Vendors
a. RFP No 70 (1st Set Oro Case);[24]
b. RFP No. 71 (1st Set Oro Case);[25]
c. RFP No. 72 (1st Set Oro Case);[26]
Oro argues that the pricing data might show that Borror did not properly manage the cost of the project. Oro asks for documents showing what vendors on its project charged Borror on non-Oro projects. Oro is willing to accept five years rather than the ten requested.
Borror argues that pricing information on other projects before the Oro project have no relevance to the prices charged Oro. Prices could vary for a variety of reasons, such as contract specifications and market conditions.
The burden and expense upon Borror of producing pricing documents for other projects not close in time to Oro's project is not proportional to the potential benefit. Borror is to produce pricing information on any other projects for a which an Oro vendor provided labor or materials during the period June 2018 and August 2019, the period of construction on the Oro project.
I. Software Programs for Borror Construction Work
1. Int. No. 20 (1st Set Holmes Case);[27]
Oro requests Borror to identify the software programs it used to manage the construction project. Borror is to identify the software programs used but need not identify users or their passwords.
J. Device Tracking Information for Devices Used for Construction Project
1. Int. No. 21 (1st Set Holmes Case)[28]
2. RFP No. 15 (1st Set Oro Case)[29]
*7 Oro wants information regarding the tracking of Borror's electronic devices used by Borror employees on the construction project. Oro argues that it will use the information to determine if all applicable devices exist (or have been destroyed) and to determine that all devices that should have been imaged have been imaged.
Borror argues that it has already provided information through its ESI disclosures and that the spreadsheets referred to by Matt Cook (Borror's IT specialist) containing the requested information are voluminous and mostly contain irrelevant information. Oro's request is reasonable as to devices in use as of August 2019, when the project was finished. Borror is to produce the spreadsheet as of August 2019 and the current spreadsheet so Oro can compare devices in use during the project and as of today.
K. Borror Lawsuits
1. Int. No. 24 (1st Set Holmes Case);[30]
Oro argues that it is entitled to know whether Borror has been involved in other litigation, which could lead to relevant evidence about its competence, business practices, and the like. Oro is willing to accept five years of data rather than the ten requested. Borror objects that other litigation is irrelevant and would be inadmissible at trial.
Prior litigation would be relevant only as to construction and property management, which are the claims in the pending lawsuits. Borror is to identify prior litigation to which it has been a party regarding construction and property management claims from 2013 to August 2019. Borror need not identify unrelated litigation, such as workers’ compensation, eviction, and personal injury claims.
L. Borror Construction Company Documents Relating to Construction
1. RFP No. 38 (1st Set Holmes Case);[31]
Oro seeks company meeting minutes and other corporate documents regarding the project. Corporate documents about the projects at issue are relevant. Borror is to produce records containing corporate minutes, votes, and actions related to the project.
M. Employment Files for Employees that Worked on Construction Project
1. RFP No. 42 (1st Set Holmes Case);[32]
2. RFP No. 35 (1st Set Oro Case);[33]
3. RFP No. 73 (1st Set Oro Case);[34]
*8 Oro seeks the entire employment files for every employee who worked on the construction project. Oro claims the files are relevant to its claim that Borror misrepresented its experience and competence. Borror objects generally, and in particular to the production of drug screening and HIPPA-protected information. The Special Master agrees that the privacy interests of an employee in his or her personal medical information outweighs Oro's need for the information.
According to Oro, employment files for the period 2015-19 have been ordered produced in state court litigation involving these same parties. The Special Master was not provided with copies of orders from the state court litigation, but the time limit suggested appears reasonable and proportional to the potential benefits. Employee files are to be produced, excluding personal medical information, drug screenings, and records protected by HIPPA
N. Licensed Architect
1. Int. No. 12 (1st Set Holmes Case);[35]
Oro asks whether any of the work on the project required the services of a licensed architect. Borror objects that the interrogatory requests a legal conclusion rather than a disclosure of fact. Civil Rule 33(a)(2) permits interrogatories calling for “the application of law to fact.” Borror was the construction manager on the project, but the requested information would appear equally available to either party. Borror need not respond at this time, but Oro may revisit the question if additional discovery does not resolve the issue.
O. Workers’ Compensation
1. Int. No. 20 (1st Set Oro Case);[36]
2. RFP No. 11 (1st Set Oro Case);[37]
The Construction Agreement passed workers’ compensation premiums for the project on to Oro. Oro contends that it should have received a credit for any refunds of workers compensation premiums. Borror argues that collecting the requested information from January 1, 2017 to present is unduly burdensome and would not provide an answer to Oro's question about its entitlement to a refund; the mere fact that Borror received a refund could be unrelated to Oro's project. Oro has agreed to review the request and determine how it can narrow and tailor the request to accommodate Borror's concerns.
P. Policies and Handbooks
1. RFP No. 6 (1st Set Oro Case);[38]
*9 Oro expressed confusion over whether Borror had fully responded to its request for copies of policies and handbooks. During the discovery conference Borror agreed to supplement its response and production as to sub-part e of the request — “Borror Construction's policies regarding the provision of employee benefits, including, but not limited to, policies related to workers’ compensation, unemployment compensation, social security, health, welfare, retirement, and other fringe benefits.”
Q. Balconies
1. Balcony Drawings
a. Int. No. 13 (1st Set Oro Case);[39]
Oro seeks information regarding who prepared the drawings of the balconies that were submitted for approval to the City of Columbus, the drawing program used, and the date(s) prepared. Borror provided the name and drawing program used, but not a specific date. Borror contends that, to the extent available, the requested information is contained in the documents produced, but will contact the responsible person to determine whether he can provide a more specific date.
2. Balcony Specifications from Borror to Holmes
a. Int No. 14 (1st Set Oro Case);[40]
Oro asks Borror to indicate whether it gave balcony specifications to Holmes Lumber, the company that worked on the balconies. Borror refers Oro to documents produced in discovery. Oro contends the description of documents is insufficient. Borror will supplement its response by identifying the responsive documents in compliance with Fed. R. Civ. P. 33(d).
R. City of Columbus Building Department
1. Int No. 16 (1st Set Oro Case);[41]
As with the previous interrogatory, Borror will supplement its response to identify the responsive documents with greater particularity.
S. Borror's Counsel's Communications with Borror Vendors or Counsel for Borror Vendors
1. RFP No. 79 (1st Set Oro Case);[42]
Borror has refused to produce the requested documents under either the attorney-client privilege or the attorney-work product doctrine. Borror stands by its objection to certain documents on the basis of attorney-client privilege and work product. Borror will provide a privilege log. If requested by Oro, the Special Master will review the withheld documents in camera to determine whether claims of privilege and work product justify Borror's position.
T. Medical Records for Employees who Performed Work on the Site and Could not Work Due to Injury
1. RFP No. 30 (1st Set Oro Case);[43]
*10 Oro's request for medical records of employees is needlessly intrusive into the personal affairs of non-parties and of minimal value to the issues in the litigation. Employee medical records need not be produced.
2. Oro BRC4, LLC v. Karric North Apartments, Inc., et al. (“Purchase Agreement Case”)
A. Yardi
Yardi is the software program Borror used to manage its properties before selling to Oro. Oro used the Yardi program after the sale. Oro wants full read-only access to Borror's copy of the Yardi program for the four properties at issue. Borror objects that Yardi data responsive to specific discovery requests is being produced, and that unrestricted read-only access to Yardi is unwarranted.
Borror is obligated to produce any Yardi information relevant to specific requests, but no identifiable discovery request (i.e., one seeking general access to Yardi) is at issue. The Special Master will not issue an order giving such access absent a specific request to which Borror can then respond.
B. Relationship to Sellers
2. Int. No. 1 (1st Set Oro to Karric North);[44]
Oro alleges that Borror failed to state the relationship of Loribeth Steiner, Danielle Sugarman, Doug Borror and Terry George to Karric South Apartments, Karric North Apartments, Springburn Apartments, and Silvertree Apartments. Given that they appear to be key Borror employees or officers, that information is relevant to their knowledge and interest in the litigation. Borror is to amend its response to produce the information.
C. Information Relating to Dissolution
Oro alleges that Borror dissolved relevant entities without notice required under Ohio Rev. Code § 1701.87, that funds were distributed improperly (possibly to shareholders), and that a $3 million reserve was not maintained. The requests at issue under this category relate to those claims.
3. Notice under 1701.87
a. RFA No. 19 (1st Set Oro to Karric North);[45]
b. RFP No. 27 (1st Set Oro to Karric North);[46]
Borror objected to the RFA on relevance and on the basis that the “request asks [defendant] to render a legal conclusion and/or apply law to facts by a non-lawyer, which is improper.” Without waiving its objections, Borror then denied “that it had any obligation to issue a notice to Oro pursuant to Ohio Rev. Code § 1701.87.” The information sought is relevant to Oro's claim regarding corporate dissolutions, requesting an admission or denial of a fact, not of a legal conclusion. Borror either gave Oro a general notice, a specific notice under § 1701.87, or no notice at all. Borror should amend its answer to respond to the specific request.
Borror should also produce any notices of dissolution responsive to the request for production.
b. Shareholder Agreements
i. RFP No. 24 (1st Set Oro to Karric North);[48]
c. Distributions to Shareholders after January 1, 2018;
i. RFP No. 29 (1st Set Oro to Karric North);[49]
*11 The identity of shareholders, shareholder agreements, and documents related to shareholder distributions are directly relevant and should be produced.
5. Distribution or Transfer of Assets after January 1, 2018;
a. RFP No. 28 (1st Set Oro to Karric North);[50]
Distributions of assets are directly relevant to Oro's claims and should be produced.
6. Corporate Meeting Minutes Relating to Dissolution and Distribution of Assets;
a. RFP No. 26 (1st Set Oro to Karric North);[51]
Corporate minutes are directly relevant to Oro's claims and should be produced.
7. Shareholder Reports/Ledgers/Summaries/Disclosures
a. RFP No. 36 (1st Set Oro to Karric North);[52]
Oro's request for “[a]ll documents that refer to, reflect, or evidence any shareholder reports, shareholder ledgers, summaries, or disclosures” relating to the properties is unclear. Oro is to clarify the nature of the information it is seeking.
D. Financial
8. Int. No. 18 (1st Set Oro to Karric North);[53]
9. Profit and Loss Statements for Properties
a. RFP No. 31 (1st Set Oro to Karric North);[54]
10. Tax Returns
a. RFP No. 32 (1st Set Oro to Karric North);[55]
11. Tax Returns with Records Regarding Maintenance/Repairs
a. RFP No. 33 (1st Set Oro to Karric North);[56]
12. Tax Returns Provided to Shareholders
a. RFP No. 34 (1st Set Oro to Karric North);[57]
*12 Oro seeks an extensive list of financial records, some going back ten years and other for 2018 to 2020. Oro argues that the documents are relevant to Borror's solvency, and hence Oro's fraudulent transfer claim. Financial records near the time of dissolution and transfer of assets are relevant to the claim, but Oro's request is overbroad. Borror is to produce tax returns and financial statements (including balance sheets and income statements) for the years 2018 and 2019, the period during which solvency could be a relevant issue. Oro may request additional documents if the records produced raise solvency issues unresolved by the production.
Oro also argues that earlier financial records might show large expenditures on maintenance, implying undisclosed property defects. Oro is receiving discovery directly related to maintenance performed on the properties, making this a weak justification for extensive financial disclosures. Oro has failed to justify the use of older financial statements to uncover the specific defects about which it claims in the lawsuit.
E. Proceeds of Sale
13. Person that Received Proceeds from Sale
a. Int No. 5 (1st Set Oro to Karric North);[58]
Oro argues that the identities of those receiving proceeds of the sale go directly to its allegations about improper real estate broker fees and bias of certain potential witnesses. Borror is to identify the direct recipients of the proceeds. Oro has also asked for identification of “indirect” recipients. That aspect of the request is overly broad, given the fungibility of dollars. To the extent it has knowledge, Borror should identify any person or entity it knows to have received identifiable proceeds as a pass-through from the direct recipient (e.g., a subsidiary to a parent, corporation to shareholder, trustee to a beneficiary).
F. Persons that Managed/Worked on Site at Properties Prior to Purchase
14. Property managers
a. Int. No. 7 (1st Set Oro to Karric North);[59]
15. Maintenance
a. Int. No. 8 (1st Set Oro to Karric North);[60]
16. Vendors
a. Int. No. 9 (1st Set Oro to Karric North);[61]
Oro wants the identify of employees or vendors who performed maintenance work at the properties, and therefore might have had knowledge of alleged defects. Oro requested ten years but is willing to accept five years. Borror has failed to provide a sufficient ground for withholding the information. For employees, Borror is to provide the list of property managers and maintenance personnel from 2013 to 2018, as they could have knowledge or information directly related to the claims.
Oro's request for all vendors is overbroad, as it would require the identification of vendors who provided services unrelated to the claims in the case. Borror is to identify vendors who provided services related to the water supply lines, painting on units at issue, and repair of units damaged by fire, for the periods 2013 to 2018.
G. Maintenance
17. RFP No. 5 (1st Set Oro to Karric North);[62]
*13 Oro seeks documents regarding the maintenance at the properties in the last ten years, arguing it is relevant to concealed defects and Borror's knowledge. Oro is willing to reduce this to five years. Borror has agreed to produce maintenance records for 2016 to 2018, which is reasonable and should be sufficient to identify on-going maintenance issues known to Borror prior to sale.
b. RFP No. 6 (1st Set Oro to Karric North);[64]
19. Communications with Tenants regarding Water Supply Lines
a. RFP No. 19 (1st Set Oro to Karric North);[65]
20.Communications with Shareholders regarding Water Supply Lines
a. RFP No. 21 (1st Set Oro to Karric North);[66]
Oro claims that it needs the requested information and documents for its expert. Oro has agreed to limit the request to five years instead of ten. Borror contends that the request is needlessly broad, given that he sale of the properties occurred in 2018, and is agreeable to producing all maintenance orders for the years 2016, 2017, and 2018. Borror's position is reasonable. Oro is not foreclosed from requesting earlier documents if the expected benefits can be shown to be proportional to the burden and expense upon Borror.
I. Wall Issues
21. Int. No. 11 (1st Set Oro to Karric North);[67]
*14 Oro claims that Borror fraudulent concealed wall defects by painting over them and then not disclosing it before the sale. This interrogatory asks Borror to identify each building/unit that had its walls painted between January 1, 2018, and the closing. Borror cited documents produced in discovery but did not identify them with particularity. Borror is to either identify the units painted during from January 1, 2018, to closing, or identify the responsive document in compliance with Fed. R. Civ. P. 33(d).
J. Rent Concessions
22. Tenants who were also Borror Employees
a. Int No. 12 (1st Set Oro to Karric North);[68]
Oro alleges that Borror provided inappropriate and/or excessive rent concessions, including to Borror employees. Oro asks Borror to identify employees who were also tenants, and to describe any rent concessions. At the discovery conference Oro asked Borror to identify each employee at Borror during the relevant time period so that Oro can cross-check it against the rent rolls provided by Borror as part of the sale under the Purchase Agreement. Borror is to respond to the interrogatory as written and need not provide a list of all employees.
K. Drawings/Diagrams of Property
23. RFP No. 7 (1st Set Oro to Karric North);[69]
Drawings and diagrams of the properties are relevant and necessary to Oro's expert opinions. All diagrams and drawings available to Borror should be produced.
b. RFP No. 15 (1st Set Oro to Karric North);[71]
25. Communications with Net Worth Affiliate
a. RFP No. 16 (1st Set Oro to Karric North);[72]
Oro alleges that under the Purchase Agreement Borror had an obligation to assign its obligations under the Purchase Agreement to a Net Worth Affiliate, and transfer $3,000,000 to it, if it dissolved any of the selling entities. These requests seek information regarding the distribution of proceeds and dissolution of entities. Borror has agreed to provide information about distributions in response to other discovery requests, which makes these requests duplicative.
M. Work on Damaged Units
26. Int. No. 19 (1st Set Oro to Karric North);[73]
*15 Oro seeks information regarding those who worked on the fire-damaged units at the properties sold to Oro. The information requested is covered by prior requests for identification of maintenance personnel and vendors. To the extent that it is not, Borror should provide the requested information.
N. Communications Relating to Building Code or Utility Violations, Problems, Or Issues
27. RFP No. 18 (1st Set Oro to Karric North);[74]
Oro contends that Borror represented that the properties and buildings thereon were compliant with all utility and building codes when sold. Accordingly, any communications it had with other entities, including the government, regarding utilities or the building code, are responsive and discoverable. Borror has not justified withholding the information. Borror is to produce responsive documents for the time period 2013 to 2018.
O. Payments by Seller to Borror Management
28. RFP No. 23 (1st Set Oro to Karric North);[75]
Oro withdrew this request as being covered under an earlier request.
P. Spoliation
Oro wants to inspect the hard drives from Terry George's computer and to depose Terry George regarding what information was on his devices. Oro cites no specific discovery request. As there is no pending request to which Borror has had a chance to respond, the Special Master will order no relief.
Q. Interrogatories that Seek the Facts that Support Oro's Claims
29. Int. No. 1 (1st Set Silvertree to Oro BRC4);[76]
30.Int No. 9 (1st Set Silvertree to Oro BRC4);[77]
Borror served contention interrogatories on several issues. Oro objects that the requests are overbroad, seek to discover mental impressions of Oro's counsel, and that the requests are more appropriate for depositions. Oro relies upon language from United States v. Selby, 25 F.R.D. 12, 14 (N.D. Ohio 1960), criticizing interrogatories that seek disclosure of legal theories. Borror is asking for the factual basis of the claims against which it must defend, not the legal basis for Oro's contention that those facts constitute a colorable claim.
*16 Civil Rule 33(a)(2) provides:
An interrogatory may relate to any matter that may be inquired into under Rule 26(b). An interrogatory is not objectionable merely because it asks for an opinion or contention that relates to fact or the application of law to fact, but the court may order that the interrogatory need not be answered until designated discovery is complete, or until a pretrial conference or some other time.
While contention interrogatories may be inappropriate before meaningful discovery has been conducted, Oro has enough discovery to date that it should be able to provide responses for many of its claims. For others, such as the water supply line issue, Oro can supplement its response after the pending discovery and expert review is completed. Oro should respond to the contention interrogatories to the best of its ability based on the information currently known.
R. Amount of Improper Discounts
31. Int. No. 11 (Silvertree Apartments to Oro BRC4);[78]
Oro objects on the basis that Borror has failed to produce information it needs to calculate the claim. The information it seeks should be available in discovery responses dealt with earlier, and Oro should respond and supplement once that information has been produced and reviewed. Borror is entitled to know the damages being sought for the allegedly improper discounts.
S. Alleged Breaches
32. Int. No. 12 (1st Set Silvertree Apartments to Oro BRC4);[79]
As discussed above, the interrogatory is appropriate. Oro should answer.
T. Water Supply Lines
33. Int. No. 19 (Silvertree Apartments to Oro BRC4);[80]
As discussed above, the interrogatory is appropriate and Oro should answer to the extent possible, then supplement upon the completion of additional discovery.
Further Proceedings
The parties are to provide additional information and report to the Special Master as indicated above, after which the Special Master will conduct additional conferences or issues such orders and recommendations as are appropriate. The parties will advise the Special Master as to any future discovery disputes via email or joint conference call.
SO ORDERED.
Footnotes
INTERROGATORY NO. 22: Identify each person, not already identified in your responses to the previous interrogatories, who has, or may have knowledge regarding the allegations in the First Amended Complaint and/or your Counterclaim and/or the Project, the Project Property, the Balconies, the Balcony Permit, the Balcony Drawings. the Oro Entities, the Borror Construction Agreement, the Borror Construction Work (which includes, but is not limited to, the Holmes Lumber Work and the Canal Flooring Work), or this Action.
INTERROGATORY NO. 9: Is Borror Construction aware of any information, documents (including ESI) that was in Borror Construction's possession, custody, or control as of July 22, 2019 and which has been deleted, destroyed, lost, discarded, or is otherwise no longer accessible? If so, describe the information, documents (including ESI) or categories of the same, the dates upon which it was no longer accessible, the reason it was no longer accessible, and identify any persons who played any part in making it no longer accessible.
INTERROGATORY NO. 7: Identify each person at Borror Construction and/or Borror Management and/or any Borror Affiliate that was notified of any litigation hold relating to any of the disputes with any of the Oro Entities and identify the date each person was notified of the litigation hold.
INTERROGATORY NO. 11: Identify the date upon which Borror Construction received notice that the Oro Entities had issued a litigation hold letter to Borror Construction's counsel.
REQUEST FOR PRODUCTION NO. 28: Any and all documents that relate in any manner to any litigation holds put in place by Borror Construction, Borror Management, and/or any Borror Affiliate relating to this Action or any of the disputes between or among Borror Construction, Borror Management, and/or any Borror Affiliate and any of the Oro Entities.
REQUEST FOR PRODUCTION NO. 29: Any and all documents that refer to, reflect, or evidence any instructions. memos, plans, outlines, and/or communications relating to any litigation holds relating to or regarding this Action or any disputes with any of the Oro Entities.
REQUEST FOR PRODUCTION NO. 34: Any and all documents that refer to, reflect, or evidence any communications relating to or regarding the litigation hold letter issued by the Oro Entities’ counsel or any steps taken by Borror Construction, Borror Management, or any of the Borror Affiliates (both with or without involvement by RDI) or by RDI or on behalf of either of the aforementioned relating to the litigation hold letter issued by the Oro Entities’ counsel.
REQUEST FOR PRODUCTION NO. 16: Any and all documents that refer to, reflect, or evidence any communications relating to the Rankey Email Account or the Weaver Email Account, including, but not limited to, the archiving, accessing, sharing, searching, or deleting of such email accounts.
REQUEST FOR PRODUCTION NO. 18: Any and all documents that refer to, reflect, or evidence any efforts by any person, including, but not limited to, Borror Construction and/or RDI, to recover the Rankey Email Account and/or the Weaver Email Account or any other documents, information, or ESI that was deleted, discarded, lost, destroyed, or is otherwise not accessible.
REQUEST FOR PRODUCTION NO. 23: Any and all documents relating to or regarding what was referred to as the “Big Clean Up” in the deposition of Borror Construction on January 15, 2021.
REQUEST FOR PRODUCTION NO. 20: Any and all documents that refer to, reflect, or evidence any policies of RDI regarding any information that Borror Construction, Borror Management, and/or Borror Affiliates store with RDI or on RDI's networks or the networks that RDI manages, including, but not limited to, emails, documents, or data
REQUEST FOR PRODUCTION NO. 24: Any and all documents that refer to, reflect, or evidence any agreements. contracts, memorandums of understanding or letters of intent between Borror Construction, Borror Management, or any Borror Affiliate and RDI entered into or effective between January 1, 2017 and the present.
REQUEST FOR PRODUCTION NO. 25: Any and all documents that refer to, reflect, or evidence any service tickets, work tickets, service logs, communications, requests for service, invoices, service orders or other records relating to or regarding any services that RDI provided to Borror Construction, Borror Management, and/or Borror Affiliates between January 1, 2017 and the present date that relate in any manner to the Rankey Email Account, the Weaver Email Account, the Big Clean Up, access to any email accounts for any persons who performed work on or relating to the Project, the Laptop, or any information or ESI relating to or regarding the Project or any of the Oro Entities or regarding any network, document retention or email retention policies.
REQUEST FOR PRODUCTION NO. 26: Any and all documents that refer to, reflect, or evidence any communications between counsel for Borror Construction, Borror Management, and/or Borror Affiliates and counsel for RDI relating to this Action, the RDI Subpoenas, or any
REQUEST FOR PRODUCTION NO. 27: Any and all documents that refer to, reflect, or evidence any communications between or among Borror Construction, Borror Management, and/or any Borror Affiliate and RDI relating to any litigation holds Affiliate relating to this Action or any of the disputes between or among Borror Construction, Borror Management, and/or any Borror Affiliate and any of the Oro Entities.
REQUEST FOR PRODUCTION NO. 19: Any and all documents that refer to, reflect, or evidence any notes. outlines, plans, reports, descriptions, check lists, or task lists regarding any efforts to recover the Laptop or any information on the Laptop (including, but not limited to, the efforts of the Borror Entities, RDI, law enforcement, insurance, or any other person).
REQUEST FOR PRODUCTION NO. 31: Any and all documents regarding or relating to the laptop that was previously used by Bridgett Everett while employed at one or more of the Borror Entities and which was purportedly stolen from the Borror Entities (the “Laptop”).
REQUEST FOR PRODUCTION NO. 32: Any and all documents that refer to, reflect, or evidence any notices reports to any other persons regarding the purported theft of the Laptop, including, but not limited to, law enforcement reports/documents, and/or insurance carriers.
REQUEST FOR PRODUCTION NO. 33: Any and all documents that refer to, reflect, or evidence any communications regarding or relating to the purported theft of the Laptop and any efforts by any person to recover the Laptop or any information on the Laptop.
REQUEST FOR PRODUCTION NO. 17: Any and all documents that refer to, reflect, or evidence any custodial interviews of any of the custodians identified in the ESI Protocol.
REQUEST FOR PRODUCTION NO. 21: Any and all documents that refer to, reflect, or evidence any efforts by Borror Construction or any other person to determine whether any electronic devices used by any of the custodians identified in the ESI Protocols were likely to have discoverable ESI on such devices.
REQUEST FOR PRODUCTION NO. 22: Any and all documents that Matthew Cook reviewed or referenced during, or to prepare for, Borror Construction's deposition that took place on January 15, 2021 or that were provided to him by others to prepare for the deposition that took place on January 15, 2021.
INTERROGATORY NO. 19: Identify each project in the last ten years for which any Borror Vendor has performed work, labor, or supplied equipment or materials to Borror Construction, Borror Management, or Borror Affiliates. For each such project state the dates upon which each Borror Vendor supplied the labor, equipment, or materials to Borror Construction, Borror Management, and/or any Borror Affiliates, the address of the project, and identify the owner of the project, including address, phone number, name of primary contact, and email address, and finally, whether each Borror Vendor was paid in full on each project.
REQUEST FOR PRODUCTION NO. 70: Produce any and all documents that refer to, reflect, or evidence the prices charged to Borror Construction, Borror Management, and/or Borror Affiliates by each Borror Vendor. including, but not limited to, Holmes Lumber and Canal Flooring, regarding any projects for which each Borror Vendor provided labor, material, or equipment to Borror Construction, Borror Management, and/or Borror Affiliates within the past ten years.
REQUEST FOR PRODUCTION NO. 71: Produce any and all documents that refer to, reflect, or evidence the prices charged by each Borror Vendor to any other person, other than Borror Construction, Borror Management, or Borror Affiliates in 2017, 2018, 2019, or 2020, for any of the types of labor, materials, or equipment that each Borror Vendor provided to the Project.
REQUEST FOR PRODUCTION NO. 72: Produce any and all documents that refer to, reflect, or evidence any pricing lists from 2017 forward, that include prices or charges for any of the types of labor, materials, or equipment provided to the Project by any person, including, but not limited to, Borror Construction, Borror Management, Borror Affiliates, or Borror Vendors.
INTERROGATORY NO. 20: Identify by name, year, version, and software developer, each software program, computer program, application, document management system, email software/management system, and scheduling/calendar system that Borror Construction used in any manner to manage, oversee, organize, schedule, or perform any of the Borror Construction Work and identify each Borror Vendor who was provided access to each software program, computer program, application, document management system, email software/management system, and scheduling calendar system, and provide their usernames and passwords for all of the above
INTERROGATORY NO. 21: Identify by manufacturer, model number, date, serial number, and service carrier and phone number for phones, each electronic device that Borror Construction or any employee, agent, or representative of Borror Construction used or operated to perform any work or tasks related to or regarding the Project and identify each person who used each device. This includes, but is not limited to, desktop computers, laptop computers, iPads. cell phones, voice mail systems, network systems, cloud-based storage systems, storage devices (including, but not limited to, thumb drives or electronic storage devices).
REQUEST FOR PRODUCTION NO. 15: Any and all documents that refer to, reflect, or evidence any logs. inventories, or other notes in which Borror Construction or a Borror Affiliate tracks the electronic devices used by its employees, including, but not limited to, those used relating to the Projects, this includes, but is not limited to, each spreadsheet that Matt Cook referenced in the deposition of Borror Construction in their native format.
INTERROGATORY NO. 24: Has Borror Construction, Borror Management, or any Borror Affiliates been a party to any lawsuits, arbitration, code violations, governmental disciplinary matters in the past ten years? If so, state the caption, case number, and court for each case the code violation disciplinary board, and/or the government agency.
REQUEST FOR PRODUCTION NO. 38: Produce any and all documents that refer to, reflect, or evidence any company meeting minutes, operating agreements, rules and regulations, agendas, votes, resolutions, and company actions for Borror Construction that relate to or regard the Project or the Project Property.
REQUEST FOR PRODUCTION NO. 42: Produce the entire employment file for Garske, Doug Borror, Danielle Borror, Steiner, Rankey, Devereaux, Bohan Wang, William Canaday, Tina Shriver, Terry George Bridget Everett, Jim Klescich and any person who was employed by Borror Construction, Borror Management, or Borror Affiliates at the time of the Project and whose employment was terminated either during or at some time after the Project.
REQUEST FOR PRODUCTION NO. 35: For any employee who performed work on or relating to the Project and who has since departed employment with Borror Construction, Borror Management, and/or Borror Affiliate, produce any and all documents that refer to, reflect, or evidence the date each person's employment ceased and any reasons for the departure, as well as their employment file records from January 1, 2017 to the present.
REQUEST FOR PRODUCTION NO 73: Produce the entire employment file for Garske, Doug Borror, Danielle Borror, Steiner, Rankey, Devereaux, Bohan Wang, William Canaday Tina Shiver, Terry George, Bridget Everett, Jim Klescich and any person who was employed by Borror Construction, Borror Management, or Borror Affiliates at the time of the Project and whose employment was terminated either during or at some time after the Project.
INTERROGATORY NO. 12: Did Borror Construction or any other person provide any services or work on or relating to the Project that required a licensed architect? If so, provide the following information: a. Each portion of the Project for which Borror Construction or such other person provided such services or work (for example—balconies, flooring, dumpster enclosures, etc.); and b. Identify each specific person at Borror Construction or other person(whether an employee or independent contractor), that provided such services or work, state whether the person was an employee or independent contractor, and describe the portion of the Project for which the person provided services or work;
INTERROGATORY NO. 20: If one or more of Borror Construction, Borror Management or any Borror Affiliates received any dividends, credits, refunds, or other return of any funds paid into the Ohio State Bureau of Workers’ Compensation for any time period between January 1, 2017 and the present, identify: • The person who received such dividend, credit, refund, or other return of funds; • The nature and/or amount of any dividend, credit, refund, or other return of any funds received by each such person; • The date(s) the dividend, credit, refund, or other return of any funds were received by such person.
REQUEST FOR PRODUCTION NO. 11: Any and all documents that Borror Construction, Borror Management. and/or Borror Affiliates submitted to or received from the Ohio Bureau of Workers’ Compensation in 2017 2018, 2019, 2020, and 2021.
REQUEST FOR PRODUCTION NO. 6: Any and all documents that refer to, reflect, or evidence the following policies or handbooks (whether formal or informal) for Borror Construction, Borror Management, Borror Affiliates, or RDI between January 1, 2017 and the present: a. document/information retention policies; b. information technology policies; c. electronic device use policies; d. Borror Construction's standard personnel policy and/or employee handbooks; e. Borror Construction's policies regarding the provision of employee benefits, including, but not limited to, policies related to workers’ compensation, unemployment compensation, social security, health. welfare, retirement, and other fringe benefits.
INTERROGATORY NO. 13: Identify each person that participated in any manner in creating or preparing the Balcony Drawings, whether each person was a licensed architect at the time of their participation, the dates each of the Balcony Drawings was completed, the manner in which each drawing was created (hand drawn, mechanical tools. and/or software generated, including drafts), and if created by a software program, state the software program used.
INTERROGATORY NO. 14: Did Borror Construction give to Holmes Lumber the specifications for the Balconies. as set forth in the Balcony Drawings? If so, indicate the method used to convey the specifications, the date they were given, the person(s) that delivered them to Holmes Lumber and the person at Holmes Lumber to whom they were delivered.
INTERROGATORY NO. 16: Identify each person from the Building Department who was involved, in any manner. with the Balcony Permit, the Balcony Drawings, or the Balconies.
REQUEST FOR PRODUCTION NO. 79: Produce any and all documents that refer to, reflect, or evidence any communications between or among counsel for Borror Construction, Borror Management, and/or Borror Affiliates and any Borror Vendor or counsel for any Borror Vendor, relating to or regarding the Project, the Project Property, Oro Runaway Bay, Oro Entities, the Borror Construction Agreement, the Borror Construction Work (which includes the Holmes Lumber Work the Canal Flooring Work), the Holmes Lumber Subcontract, the Canal Flooring Subcontract, the Escrow Agreement, or this Action.
REQUEST FOR PRODUCTION NO. 30: Any and all documents that refer to, reflect, or evidence any medical records relating to the injury and/or injuries of any employees who performed work on or relating to the Project and who, as a result of the injury, could not or did not work on the Project. This includes, but is not limited to, the medical records and all documents relating thereto regarding Tina Shiver and the injuries she claims to have sustained and which prevented her from being at the Project Property.
INTERROGATORY NO. 1: Identify all persons who prepared or assisted in the preparation of answer to these Discovery Requests and state the person's relationship to Karric North Apartments.
REQUEST FOR ADMISSION NO. 19: Karric North Apartments did not issue notice to Oro BRC4 or Oro Capital under Ohio Revised Code § 1701.87.
REQUEST FOR PRODUCTION NO. 27: All documents that refer to, reflect, or evidence any notices that Karric North Apartments issued to any creditor pursuant to Ohio Revised Code § 1701.87, including, but not limited to, any notices issued to Oro BRC4 and/or Oro Capital.
INTERROGATORY NO. 17: Identify each shareholder of Karric North Apartments between January 1, 2018 through the date of dissolution, state whether such shareholder received a distribution of assets of any kind, including money, from Karric North Apartments at any time after Closing, describe the type of asset distributed, the amount of the distribution (if money), and the date of the distribution
REQUEST FOR PRODUCTION NO. 24: All documents that refer to, reflect, or evidence any shareholder agreements relating to or regarding Karric North Apartments (between or amongst Karric North Apartments and its shareholders).
REQUEST FOR PRODUCTION NO. 29: All documents that refer to, reflect, or evidence any distribution of any asset (including money) to any shareholder of Karric North Apartments on or after January 1, 2018.
REQUEST FOR PRODUCTION NO. 28: All documents that refer to, reflect, or evidence the distribution, sale, trade, or transfer of any assets, including money, of Karric North Apartments on or after January 1, 2018.
REQUEST FOR PRODUCTION NO. 26: All corporate meeting minutes, corporate resolutions, voting records, books, or other records relating to the dissolution of Karric North Apartments and/or the distribution of any assets from January 1, 2018 forward.
REQUEST FOR PRODUCTION NO. 36: All documents that refer to, reflect, or evidence any shareholder reports, shareholder ledgers, summaries, or disclosures relating to Karric North Apartments.
INTERROGATORY NO. 18: Identify each financial institution with which Karric North Apartments held an account (credit, loan, checking, savings, operating, money market, or other) between January 1, 2018 and the time Karric North Apartments answers this interrogatory.
REQUEST FOR PRODUCTION NO. 31: All documents that refer to, reflect, or evidence any profit and loss statements, balance sheets, revenue and expense statements, and other financial documents regarding or relating to Karric North Apartments in 2018, 2019, or 2020.
REQUEST FOR PRODUCTION NO. 32: All tax returns, tax filings, tax documents, or tax records for Karric North Apartments for 2018, 2019, or 2020.
REQUEST FOR PRODUCTION NO. 33: All documents for the past ten years that refer to, reflect, or evidence any records, including, but not limited to, tax records, in which you identified any maintenance work, repairs, or replacement relating to the Karric North Property as expenses.
REQUEST FOR PRODUCTION NO. 34: All documents that refer to, reflect, or evidence any tax returns, tax filings, tax documents, or tax records for 2018, 2019, or 2020 that Karric North Apartments provided to any shareholder or shareholders.
INTERROGATORY NO. 5: Identify each person or entity that directly or indirectly received any proceeds from the sale contemplated by the Purchase Agreement, the date the proceeds were received, the amount received, and identify the financial institution that received the proceeds on behalf of each person.
INTERROGATORY NO. 7: Identify each person that managed the Karric North Property in the previous ten years, state the dates for which each person managed the Karric North Property, state the license/certificate numbers, and the name of the main point of contact (if the person is an entity).
INTERROGATORY NO. 8: Identify each person who supervised and/or was a maintenance person at the Karric North Property in the ten years preceding the date upon which Karric North Apartments entered into the Purchase Agreement.
INTERROGATORY NO. 9: For the last ten years, identify each person who performed maintenance or repair work on the Karric North Property.
REQUEST FOR PRODUCTION NO. 5: All documents relating to the maintenance of the Karric North Property in the ten years preceding the date of the Purchase Agreement.
INTERROGATORY NO. 10: Identify the address/building number/unit at the Karric North Property for each building that has had a Water Supply Line repaired or replaced in the past ten years, and provide the date upon which each building had one or more Water Supply Lines repaired/replaced, the number of Water Supply Lines repaired/replaced at each building, what caused the needed repair or replacement (if known), and identify each person that performed such repair and/or replacement.
REQUEST FOR PRODUCTION NO. 6: For the past ten years, all documents relating to any maintenance, repairs, or replacement regarding any of the Water Supply Lines.
REQUEST FOR PRODUCTION NO. 19: All documents for the past ten years that refer to, reflect, or evidence any communications to or from any tenants of the Karric North Property or any other person regarding or relating to any maintenance, repairs, or replacement of any Water Supply Lines.
REQUEST FOR PRODUCTION NO. 21: All documents that refer to, reflect, or evidence any communications between Karric North Apartments and one or more of its shareholders in the past five years relating to the Water Supply Lines, the Fibrous Backing Issue, the Rent Concessions, Damaged Units, the Purchase Agreement, inspection of the Karric North Property, the Karric North Property, the Assignment of the Karric North Membership Interest, Property Taxes, payment of any real estate commissions or broker commissions relating to or regarding the sale contemplated by the Purchase Agreement, this Action, the Net Worth Affiliate, the assignment of Karric North Apartments’ obligations to the Net Worth Affiliate, the transfer of assets to the Net Worth Affiliate, and/or distributions made relating to the proceeds from the sale contemplated by the Purchase Agreement.
INTERROGATORY NO. 11: Identify the address/building/unit for each unit that had any walls painted between January 1, 2018 and the Closing, the date upon which each unit had a wall or walls painted, and the person that painted each unit.
INTERROGATORY NO. 12: Identify each person who was a tenant of the Karric North Property at any time between January 1, 2018 and the Closing who was also an employee or agent of one or more of the Sellers, Borror Management, Borror Construction, and/or any Borror Affiliates, state the unit number of the unit such tenant rented, and describe the Rent Concession provided as well as the duration/timing of the Rent Concession.
REQUEST FOR PRODUCTION NO. 7: All documents that refer to, reflect, or evidence any drawings, diagrams, or surveys of the Karric North Property.
INTERROGATORY NO. 16: At the time Karric North Apartments assigned its obligations under the Purchase Agreement to the Net Worth Affiliate, did one or more of the Sellers transfer $3,000,000 to the Net Worth Affiliate? If so, identify the date of the transfer, each financial institution involved in the transfer, the outgoing and incoming bank account, the issuer of the funds and the recipient of the funds, and how and to whom, if at all, the $3,000,000 has been distributed or spent by the Net Worth Affiliate and identify each person who is currently holding in part or in whole, the $3,000,000 and how much of the $3,000,000 each person is holding.
REQUEST FOR PRODUCTION NO. 15: All documents that refer to, reflect, or evidence the distribution, if any, of the $3,000,000, in whole or in part, from the Net Worth Affiliate to any other person.
REQUEST FOR PRODUCTION NO. 16: All documents that refer to, reflect, or evidence any communications to or from the Net Worth Affiliate relating to or regarding the Purchase Agreement.
INTERROGATORY NO. 19: Identify each person that performed work relating to the Damaged Units.
REQUEST FOR PRODUCTION NO. 18: All documents for the past ten years that refer to, reflect, or evidence any communications between or among Karric North Apartments, and/or one or more of the other Sellers, and/or Borror Management, and/or Borror Realtor, and/or Borror Construction and/or Borror Affiliates and/or any government agency, and/or any other person relating to any building code or utility violations, problems, or issues relating to or regarding the Karric North Property.
REQUEST FOR PRODUCTION NO. 23: Any and all documents that refer to, reflect, or evidence any payments by Karric North Apartments or any others to Borror Management for services relating to the management of the Karric North Property for the five years preceding the Closing, including, but not limited to, documents that reflect invoices and other charges relating to salaries, wages, benefits, workers’ compensation, healthcare costs, employment taxes, training, marketing, employee events/holiday parties, and/or newsletters.
INTERROGATORY 1: State the factual basis for your claim that Borror allegedly actively concealed a latent defect in some of the residential apartments of the Properties as stated in paragraph 15 of your complaint and as that term is defined in paragraph 9 of your complaint.
INTERROGATORY 9: State the factual basis for the claim that Borror allegedly actively concealed and/or failed to disclose improper and unreasonable rental discounts as stated in paragraph 29 of your complaint.
INTERROGATORY 11: Identify the specific damages you are seeking for each apartment at the Property for Borror allegedly actively concealing and/or failing to disclose improper and unreasonable rental discounts as stated in paragraph 29 of your complaint.
INTERROGATORY 12: Identify each act or omission that you believe supports your contention that Borror breached the Purchase Agreement as alleged in your first cause of action of your complaint.
INTERROGATORY 19: State the factual basis for your claim that Borror allegedly actively concealed a latent defect regarding the water supply lines at the Properties as referenced in paragraph 19 of your Amended Complaint and as that term is defined in paragraph 10 of your Amended Complaint.