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DOCS_NY:44147.2 36027/003
PACHULSKI STANG ZIEHL & JONES LLP Jeffrey N. Pomerantz (CA Bar No. 143717) (admitted pro hac vice) Ira D. Kharasch (CA Bar No. 109084) (admitted pro hac vice) John A. Morris (NY Bar No. 2405397) (admitted pro hac vice) Gregory V. Demo (NY Bar No. 5371992) (admitted pro hac vice) Hayley R. Winograd (NY Bar No. 5612569) (admitted pro hac vice) 10100 Santa Monica Blvd., 13th Floor Los Angeles, CA 90067 Telephone: (310) 277-6910 Facsimile: (310) 201-0760 HAYWARD PLLC Melissa S. Hayward (Texas Bar No. 24044908) Zachery Z. Annable (Texas Bar No. 24053075) 10501 N. Central Expy, Ste. 106 Dallas, TX 75231 Tel: (972) 755-7100 Fax: (972) 755-7110 Counsel for Highland Capital Management, L.P.
IN THE UNITED STATES BANKRUPTCY COURT FOR THE NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
In re: § Case No. 19-34054-sgj11 § HIGHLAND CAPITAL MANAGEMENT, L.P. 1 § Chapter 11 § Reorganized Debtor. §
HIGHLAND CAPITAL MANAGEMENT, L.P., § § Plaintiff. § v. § Adversary No. 21-03003-sgj § JAMES D. DONDERO, NANCY DONDERO, AND § THE DUGABOY INVESTMENT TRUST, § § Defendants. §
HIGHLAND CAPITAL MANAGEMENT, L.P., § § Plaintiff. § § v. § § Adversary No.: 21-03005-sgj NEXPOINT ADVISORS, L.P., JAMES § DONDERO, NANCY DONDERO, AND THE § DUGABOY INVESTMENT TRUST, § § Defendants. §
1 The Debtor’s last four digits of its taxpayer identification number are (6725). The headquarters and service address for the above-captioned Debtor is 100 Crescent Court, Suite 1850, Dallas, TX 75201.
Case 21-03003-sgj Doc 94 Filed 09/28/21 Entered 09/28/21 19:14:57 Page 1 of 3
DOCS_NY:44147.2 36027/003
HIGHLAND CAPITAL MANAGEMENT, L.P., § § Plaintiff. § § v. § § Adversary No.: 21-03006-sgj HIGHLAND CAPITAL MANAGEMENT § SERVICES, INC., JAMES DONDERO, NANCY § DONDERO, AND THE DUGABOY § INVESTMENT TRUST, § § Defendants. §
HIGHLAND CAPITAL MANAGEMENT, L.P., § § Plaintiff. § § v. § § Adversary No.: 21-03007-sgj HCRE PARTNERS, LLC (n/k/a NEXPOINT § REAL ESTATE PARTNERS, LLC), JAMES § DONDERO, NANCY DONDERO AND THE § DUGABOY INVESTMENT TRUST, § § DEFENDANTS. §
DECLARATION OF JOHN A. MORRIS IN SUPPORT OF DEBTOR’S OBJECTION TO MOTION TO COMPEL ARBITRATION AND STAY LITIGATION
I, John A. Morris, pursuant to 28 U.S.C. § 1746(a) and under penalty of perjury, declare as
follows:
1. I am an attorney in the law firm of Pachulski, Stang, Ziehl & Jones LLP, counsel
to the above-referenced Debtor, and I submit this Declaration in support of the Debtor’s Objection
to Motion to Compel Arbitration and Stay Litigation (the “Objection”) being filed concurrently
with this Declaration. I submit this Declaration based on my personal knowledge and review of
the documents listed below.
2. Attached as Exhibit A is a true and correct copy of Defendants’ Joint Discovery
Requests to Highland Capital Management, L.P., dated September 3, 2021.
3. Attached as Exhibit B are true and correct copies of various discovery demands
served by James Dondero in Adversary Proceeding No. 21-03003.
Case 21-03003-sgj Doc 94 Filed 09/28/21 Entered 09/28/21 19:14:57 Page 2 of 3
DOCS_NY:44147.2 36027/003
4. Attached as Exhibit C is a true and correct copy of an email chain for the period
June 23, 2021 to July 21, 2021 where a host of agreements were reached that became the
foundation for the Stipulations (as that term is defined in the Objection) between Michael Aigen,
a partner at Stinson LLP (counsel to James Dondero, certain entities controlled by Mr. Dondero,
and, at certain times, counsel to Nancy Dondero) and me, with counsel for all parties copied.
Dated: September 28, 2021. /s/ John A. Morris John A. Morris
Case 21-03003-sgj Doc 94 Filed 09/28/21 Entered 09/28/21 19:14:57 Page 3 of 3
DEFENDANTS’ JOINT DISCOVERY REQUESTS TO HIGHLAND CAPITAL MANAGEMENT, L.P. PAGE 1 OF 31 CORE/3522697.0002/168823116
Clay M. Taylor
Bryan C. Assink
BONDS ELLIS EPPICH SCHAFER JONES LLP
420 Throckmorton Street, Suite 1000
Fort Worth, Texas 76102 (817) 405-6900 telephone
(817) 405-6902 facsimile
Email: [email protected]
Email: [email protected]
ATTORNEYS FOR JAMES DONDERO
Deborah Deitsch-Perez
Michael P. Aigen
STINSON LLP
3102 Oak Lawn Avenue, Suite 777
Dallas, Texas 75219 (214) 560-2201 telephone
(214) 560-2203 facsimile
Email: [email protected]
Email: [email protected]
ATTORNEYS FOR JAMES DONDERO, NANCY
DONDERO, HIGHLAND CAPITAL MANAGEMENT
SERVICES, INC. AND NEXPOINT REAL ESTATE
PARTNERS, LLC
Daniel P. Elms
State Bar No. 24002049 GREENBERG TRAURIG, LLP
2200 Ross Avenue, Suite 5200
Dallas, Texas 75201
(214) 665-3600 telephone
(214) 665-3601 facsimile
Email: [email protected]
ATTORNEYS FOR NANCEY DONDERO
Douglas S. Draper (La. Bar No. 5073)
Leslie A. Collins (La. Bar No. 14891) Greta M. Brouphy (La. Bar No. 26216)
HELLER, DRAPER & HORN, L.L.C.
650 Poydras Street, Suite 2500
New Orleans, Louisiana 70130
(504) 299-3300 telephone
(504) 299-3399 facsimile
Email: [email protected]
Email: [email protected]
Email: [email protected]
ATTORNEYS FOR THE DUGABOY INVESTMENT TRUST
Davor Rukavina Thomas D. Berghman
Julian P. Vasek
MUNSCH HARDT KOPF & HARR, P.C.
500 N. Akard Street, Suite 3800
Dallas, Texas 75202-2790
(214) 855-7500 telephone
(214) 978-4375 facsimile
Email: [email protected]
ATTORNEYS FOR NEXPOINT ADVISORS, L.P.
IN THE UNITED STATES BANKRUPTCY COURT
FOR THE NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
In re: § Case No. 19-34054
§
HIGHLAND CAPITAL MANAGEMENT, L.P. § Chapter 11
§
Debtor. §
HIGHLAND CAPITAL MANAGEMENT, L.P., §
§
Plaintiff. §
v. § Adversary No. 21-03003-sgj
§
JAMES D. DONDERO, NANCY DONDERO, AND §
THE DUGABOY INVESTMENT TRUST, §
§
Defendants. §
Case 21-03003-sgj Doc 94-1 Filed 09/28/21 Entered 09/28/21 19:14:57 Page 2 of 32
DEFENDANTS’ JOINT DISCOVERY REQUESTS TO HIGHLAND CAPITAL MANAGEMENT, L.P. PAGE 2 OF 31 CORE/3522697.0002/168823116
HIGHLAND CAPITAL MANAGEMENT, L.P., §
§
Plaintiff. §
§
v. §
§ Adversary No.: 21-03005-sgj
NEXPOINT ADVISORS, L.P., JAMES §
DONDERO, NANCY DONDERO, AND THE §
DUGABOY INVESTMENT TRUST, §
§
Defendants. §
HIGHLAND CAPITAL MANAGEMENT, L.P., §
§
Plaintiff. §
§
v. §
§ Adversary No.: 21-03006-sgj
HIGHLAND CAPITAL MANAGEMENT §
SERVICES, INC., JAMES DONDERO, NANCY §
DONDERO, AND THE DUGABOY §
INVESTMENT TRUST, §
§
Defendants. §
HIGHLAND CAPITAL MANAGEMENT, L.P., §
§
Plaintiff. §
§
v. §
§ Adversary No.: 21-03007-sgj
HCRE PARTNERS, LLC (n/k/a NEXPOINT §
REAL ESTATE PARTNERS, LLC), JAMES §
DONDERO, NANCY DONDERO AND THE §
DUGABOY INVESTMENT TRUST, §
§
Defendants. §
DEFENDANTS' JOINT DISCOVERY REQUESTS
TO HIGHLAND CAPITAL MANAGEMENT, L.P.
TO: Highland Capital Management, L.P., by and through its attorneys of record, John Morris,
Pachulski Stang Ziehl & Jones LLP, 10100 Santa Monica Blvd., 13th Floor, Los Angeles,
CA 90067.
Pursuant to Rules 26, 33, 34, and 36 of the Federal Rules of Civil Procedure, made
applicable to this proceeding through Rules 7026, 7033, 7034, 7036, and 9014 of the Federal Rules
of Bankruptcy Procedure, Defendants James Dondero (“Mr. Dondero”), Nancy Dondero (“Ms.
Dondero”), The Dugaboy Investment Trust (“Dugaboy”), NexPoint Advisors, L.P. (“NPA”),
Highland Capital Management Services, Inc. (“HCMS”), and NexPoint Real Estate Partners, LLC
Case 21-03003-sgj Doc 94-1 Filed 09/28/21 Entered 09/28/21 19:14:57 Page 3 of 32
DEFENDANTS’ JOINT DISCOVERY REQUESTS TO HIGHLAND CAPITAL MANAGEMENT, L.P. PAGE 3 OF 31 CORE/3522697.0002/168823116
(“NREP”) (collectively, “Defendants”) hereby request that Plaintiff Highland Capital
Management, L.P. (“Debtor”) produce for inspection and copying the documents identified below,
and respond to the propounded interrogatories and requests for admission, within thirty (30) days
after service (the “Requests”).
Dated: September 3, 2021 Respectfully submitted,
/s/Michael P. Aigen
Deborah Deitsch-Perez
State Bar No. 24036072
Michael P. Aigen
State Bar No. 24012196
STINSON LLP
3102 Oak Lawn Avenue, Suite 777
Dallas, Texas 75219
(214) 560-2201 telephone
(214) 560-2203 facsimile
Email: [email protected]
Email: [email protected]
ATTORNEYS FOR JAMES DONDERO, NANCY
DONDERO, HIGHLAND CAPITAL MANAGEMENT
SERVICES, INC. AND NEXPOINT REAL ESTATE
PARTNERS, LLC
/s/Clay M. Taylor
Clay M. Taylor
State Bar No. 24033261
Bryan C. Assink
State Bar No. 24089009
BONDS ELLIS EPPICH SCHAFER JONES LLP
420 Throckmorton Street, Suite 1000
Fort Worth, Texas 76102
(817) 405-6900 telephone
(817) 405-6902 facsimile
Email: [email protected]
Email: [email protected]
ATTORNEYS FOR JAMES DONDERO
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DEFENDANTS’ JOINT DISCOVERY REQUESTS TO HIGHLAND CAPITAL MANAGEMENT, L.P. PAGE 4 OF 31 CORE/3522697.0002/168823116
/s/Daniel P. Elms
Daniel P. Elms
State Bar No. 24002049
GREENBERG TRAURIG, LLP
2200 Ross Avenue, Suite 5200
Dallas, Texas 75201
(214) 665-3600 telephone
(214) 665-3601 facsimile
Email: [email protected]
ATTORNEYS FOR NANCY DONDERO
/s/Douglas S. Draper
Douglas S. Draper (La. Bar No. 5073)
Leslie A. Collins (La. Bar No. 14891)
Greta M. Brouphy (La. Bar No. 26216)
HELLER, DRAPER & HORN, L.L.C.
650 Poydras Street, Suite 2500
New Orleans, LA 70130
(504) 299-3300 telephone
(504) 299-3399 facsimile
Email: [email protected]
Email: [email protected]
Email: [email protected]
ATTORNEYS FOR THE DUGABOY INVESTMENT
TRUST
/s/Davor Rukavina
Davor Rukavina
State Bar No. 24030781
Thomas D. Berghman
State Bar No. 24082683
Julian P. Vasek.
State Bar No. 24070790
MUNSCH HARDT KOPF & HARR, P.C.
500 N. Akard Street, Suite 3800
Dallas, Texas 75202-2790
Telephone: (214) 855-7500
Facsimile: (214) 978-4375
Email: [email protected]
Email: [email protected]
Email: [email protected]
ATTORNEYS FOR NEXPOINT ADVISORS, L.P.
Case 21-03003-sgj Doc 94-1 Filed 09/28/21 Entered 09/28/21 19:14:57 Page 5 of 32
DEFENDANTS’ JOINT DISCOVERY REQUESTS TO HIGHLAND CAPITAL MANAGEMENT, L.P. PAGE 5 OF 31 CORE/3522697.0002/168823116
CERTIFICATE OF SERVICE
I, the undersigned, hereby certify that, on September 3, 2021, a true and correct copy of
the foregoing document was served via email on counsel for the Debtor.
/s/ Michael P. Aigen
Michael P. Aigen
Case 21-03003-sgj Doc 94-1 Filed 09/28/21 Entered 09/28/21 19:14:57 Page 6 of 32
DEFENDANTS’ JOINT DISCOVERY REQUESTS TO HIGHLAND CAPITAL MANAGEMENT, L.P. PAGE 6 OF 31 CORE/3522697.0002/168823116
I. RESERVATION OF RIGHTS
1. On September 1, 2021, certain Defendants filed (i) a Motion to Compel Arbitration; and
(ii) a Motion to Dismiss certain of the causes of action contained in the Amended
Complaints1. By propounding these discovery requests, Defendants do not intend to, and
do not, waive any rights related to the arguments and rights asserted in these motions,
including, without limitation, their rights to (i) arbitrate any disputes related to the
allegations contained in the Amended Complaints; and (ii) have certain causes of actions
contained in the Amended Complaints dismissed. Defendants expressly reserve all rights
and preserve all arguments made in these motions and serve these discovery requests
subject to and conditioned upon the foregoing motions.
Additionally, Dugaboy reserves the right to supplement its discovery requests, if necessary.
Dugaboy's counsel is located in Louisiana and is dealing with the aftermath of Hurricane
Ida. Counsel requested a two business day extension for Dugaboy to supplement its
discovery requests but counsel for Debtor refused to provide counsel for Dugaboy with this
courtesy.
II. DEFINITIONS
2. For purpose of interpreting and determining the scope of the discovery requests made
herein, the terms shall be given their most expansive and inclusive interpretations unless
otherwise specifically limited by the language of an individual request. This includes,
without limitation, the following:
(a) construing the singular form of the word to include the plural and the
plural form of the word to include the singular; the words “and” and
“or” shall be both conjunctive and disjunctive as necessary to make the
request inclusive rather than exclusive; the word “all” means “any and
all;” the word “including” means “including without limitation;”
(b) construing the masculine to include the feminine and vice versa; and
(c) construing any masculine or feminine pronoun to include “it” where
appropriate.
3. The term “Communication(s)” means the transmittal of information (in the form of facts,
ideas, inquiries, or otherwise) by any means, including but not limited to any meeting,
conversation, discussion, conference, correspondence, message, or other written or oral
transmission, exchange, or transfer of information in any form between two or more
persons, including in person or by telephone, facsimile, telegraph, telex, electronic mail or
other medium. The term also includes any Document transmitted or exchanged during
such transmittal of information.
1 See Motion to Compel Arbitration, Docket Number 80 in Adv. No. 21-3003. See also, e.g., Defendants’ Motion to
Dismiss, Docket No. 82 in Adv. No. 21-3003.
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DEFENDANTS’ JOINT DISCOVERY REQUESTS TO HIGHLAND CAPITAL MANAGEMENT, L.P. PAGE 7 OF 31 CORE/3522697.0002/168823116
4. The term “Document(s)” refers to:
(a) all handwritten, typed, or printed matter of any kind, including the originals and
all non-identical copies, whether different from the original by reason of any
notation made on such copies or otherwise, including, without limitation,
agreements, correspondence, forecasts, memoranda, e-mails, notes, jottings,
speeches, press releases, diaries, examinations, statistics, letters, telegrams,
minutes, time records, payroll records, expense records, contracts, reports,
studies, training manuals, canceled checks, statements, receipts, delivery
tickets, returns, summaries, work orders, pamphlets, books, prospectuses,
statement of operations, inter-office and intra-office communications, internal
and external audit reports, internal and external accounting reports, offers,
notations of any sort of conversations, telephone calls, meetings, or other
communications, bulletins, printed matter, computer print-outs, teletypes,
invoices, worksheets, and all drafts, alterations, modifications, changes and
amendments of any of the foregoing;
(b) graphic or aural records of representations of any kind, including, without
limitation, photographs, charts, graphs, microfiche, microfilm, videotape,
recordings, motion pictures; and
(c) electronic, mechanical or electronic records or representations of any kind,
including, without limitation, emails, tapes, cassettes, digital images, digital
videos, videotapes, audiotapes, laser disks, disks (including CD-ROM disks),
plans or other representations of anything concerning, describing, referring or
relating, directly or indirectly, in whole or in part, to the subject matter of the
discovery request at issue.
5. For the avoidance of doubt, the definitions of “Document(s)” and “Communication(s)”
include all ESI.
6. The words or phrases “relate to,” “relating to,” “concern,” “concerning,” “reflect,”
“comprise,” “evidence,” “memorialize,” “constitute,” “describe,” “reflecting,”
“regarding,” “refer to,” or “referring to” mean, without limitation, the following: effect,
concern, refer to, reflect, evidence, display, contain, show, prove, encompass, support,
demonstrate, involve, and/or include, in any way legally, logically, or factually connected
to the matter referred to, or have a tendency to prove or disprove the matter referred to.
7. The term “ESI” shall have the meaning ascribed to it in the Federal Rules of Civil
Procedure 16, 26, and 34(a).
8. As used herein, the term “Adversary Proceedings” shall mean and refer to the above-
captioned adversary proceedings in the Bankruptcy Case.
9. As used herein, the term "Amended Complaints" shall mean the Amended Complaints that
were filed on or about August 27, 2021 and deemed retroactively served on July 13, 2021
in each of the above-captioned adversary proceedings.
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DEFENDANTS’ JOINT DISCOVERY REQUESTS TO HIGHLAND CAPITAL MANAGEMENT, L.P. PAGE 8 OF 31 CORE/3522697.0002/168823116
10. As used herein, the term “Bankruptcy Case” shall mean and refer to the above-captioned
chapter 11 case of Highland Capital Management, L.P.
11. As used herein, the term “HCMS” shall mean and refer to Defendant Highland Capital
Management Services, Inc.
12. As used herein, the term “HCRE” shall mean and refer to Defendant HCRE Partners, LLC.
13. As used herein, the term “NPA” shall mean and refer to Defendant NexPoint Advisors,
L.P.
14. As used herein, the term “HCMFA” shall mean and refer to Defendant Highland Capital
Management Fund Advisors, L.P.
15. As used herein, the term “Affiliate” shall mean as defined in section 101(2) of the
Bankruptcy Code and also includes any other entity that directly or indirectly, through one
or more intermediaries, controls, is controlled by, or is under common control with, such
affiliate.
16. As used herein, the term “Managed Funds” means Highland Multi-Strategy Credit Fund,
L.P., Highland Restoration Capital Partners, L.P., Highland Select Equity Fund, L.P., and
any other investment vehicle managed by the Debtor.
17. As used herein, “Related Entity” shall mean and refer to (a) James Dondero, (b) any entity
that was an insider of the Debtor on October 16, 2019 under Section 101(31) of the
Bankruptcy Code, (c) any entity that was, at the time, controlled directly or indirectly by
James Dondero, (d) The Dugaboy Investment Trust; (e) the Hunter Mountain Investment
Trust and any of its direct or indirect parents, and (e) the Charitable Donor Advised Fund,
L.P.
18. As used herein, the term “Dugaboy” shall mean and refer to The Dugaboy Investment Trust
and any of its respective agents and representatives or any person acting or purporting to
act on its behalf.
19. As used herein, the term “Dondero Notes” shall mean and refer to the three promissory
notes attached to the Amended Complaint filed against Defendant James Dondero.
20. As used herein, the term “HCMS Notes” shall mean and refer to the promissory notes
attached to the Amended Complaint filed against Defendant HCMS.
21. As used herein, the term “HCRE Notes” shall mean and refer to the promissory notes
attached to the Amended Complaint filed against Defendant HCRE.
22. As used herein, the term “NPA Note” shall mean and refer to the promissory note attached
to the Amended Complaint filed against Defendant NPA.
23. As used herein, the term “Notes” shall mean and refer to, collectively, (i) the Dondero
Notes; (ii) the HCMS Notes; (iii) the HCRE Notes; and/or (iv) the NPA Note.
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DEFENDANTS’ JOINT DISCOVERY REQUESTS TO HIGHLAND CAPITAL MANAGEMENT, L.P. PAGE 9 OF 31 CORE/3522697.0002/168823116
24. As used herein, the term “Debtor” shall mean and refer to Highland Capital Management,
L.P., and any of its respective agents and representatives or any person acting or purporting
to act on their behalf.
25. As used herein, the terms “you” and “your” shall mean and refer to Highland Capital
Management, L.P., and any of its respective agents and representatives or any person acting
or purporting to act on its behalf.
26. As used herein, “Person” shall mean and refer to any individual, partnership, corporation,
trust, estate, cooperative, association, government, governmental subdivision, or agency,
or entity.
27. The terms “Identify,” “identification,” “name,” or “describe” when used in reference to a
natural person, mean to state his or her full name if known, his or her present or last known
home and business address and telephone numbers, his or her present or last known
position and business affiliation, and his or her positions and affiliations in business.
28. “Identify,” “identification,” “name,” or “describe” when referring to documents, means to
give, to the extent known the following information: (a) type of document; (b) the general
subject matter; (c) the date of the document; (d) the authors, addressees, and recipients; (e)
the location of the document; (f) the identity of the person who has custody of the
document; and (g) whether the document has been destroyed, and if so, the (i) the date of
the destruction; (ii) the reason for its destruction; and (iii) the identity of the person who
destroyed it.
29. Unless otherwise specified, the applicable time period for these Discovery Requests shall
be from January 1, 2013 to the present.
III. INSTRUCTIONS
1. If the same person, document, or other item is required to be identified in your
answer to two or more interrogatories, it is sufficient to identify it in your answer to the first
interrogatory and thereafter to refer to that answer in response to call subsequent interrogatories
calling for identification of the same person, document, or other item.
2. If any communication or document required to be identified in response to these
Interrogatories and/or Requests for Production of Documents is claimed to be privileged, such
communication or document must be identified within a privilege log, which shall be produced
contemporaneously with the non-privileged documents responsive to these Requests, and which
privilege log shall identify each such communication or document, to the extent applicable, by
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DEFENDANTS’ JOINT DISCOVERY REQUESTS TO HIGHLAND CAPITAL MANAGEMENT, L.P. PAGE 10 OF 31 CORE/3522697.0002/168823116
giving a description of such communication or document, the title, date of its creation, subject
matter, author, addressee, where it was made or created, persons to whom copies were furnished
and to whom the substance of the documents was communicated at any time after its creation, and
the ground(s) for the privilege claim.
3. Whenever in the Interrogatories the information requested is contained in or may
otherwise be derived or ascertained from a document, you may, in lieu of setting forth the requested
information:
A. Identify the document from which the answer may be derived;
B. Specify the portion (or portions) of the document that contains the
information, or the way in which the information may be derived or ascertained from the
document; and
C. Produce the document for inspection and copying (in electronic format, if
available, otherwise as printed on document), or deliver a copy of the document to Plaintiff’s
counsel prior to, or contemporaneous with, service of the answer to the Interrogatories.
4. When producing documents pursuant hereto, copies may be produced in lieu of
originals. You are required to produce the documents as they are kept in the usual course of
business or to organize and label them to correspond with each category in these requests.
5. If any documents requested herein have been lost or destroyed, the documents so
lost or destroyed shall be identified by author, date, and subject matter. In addition, the date of
disposal, the manner of disposal, the reason for disposal, the person authorizing disposal, and the
person disposing of the documents shall be identified.
6. If you believe that any of the following Requests are ambiguous, send a letter to
Defendant’s counsel specifying which Request is unclear to you and the basis of the perceived
ambiguity. We will respond promptly by letter and attempt to rephrase the Request for you.
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DEFENDANTS’ JOINT DISCOVERY REQUESTS TO HIGHLAND CAPITAL MANAGEMENT, L.P. PAGE 11 OF 31 CORE/3522697.0002/168823116
IV. DUTY TO SUPPLEMENT
Pursuant to Rule 26(e)(1) of the Federal Rules of Civil Procedure, you are requested to
timely supplement your responses to these discovery requests if you learn that a response is in
some material respect incorrect and if the additional or corrective material had not otherwise been
made known during the discovery process or in writing.
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DEFENDANTS’ JOINT DISCOVERY REQUESTS TO HIGHLAND CAPITAL MANAGEMENT, L.P. PAGE 12 OF 31 CORE/3522697.0002/168823116
V. REQUEST FOR PRODUCTION OF DOCUMENTS
REQUEST FOR PRODUCTION NO. 1:
Produce all documents and communications supporting or related to the allegation in the
Amended Complaints that "Debtor believes that the Alleged Agreement is a fiction created after
the commencement of this Adversary Proceeding for the purpose of avoiding or at least delaying
paying the obligations due under the notes."
RESPONSE:
REQUEST FOR PRODUCTION NO. 2:
Produce all documents and communications supporting or related to your Avoidance and
Recovery of Actual Fraudulent Transfer claims (Counts 3 and 4 of the Amended Complaint) made
against James Dondero.
RESPONSE:
REQUEST FOR PRODUCTION NO. 3:
Produce all documents and communications supporting or related to your Declaratory
Relief claims (Count 5 of the Amended Complaint) made against Dugaboy and Nancy Dondero.
RESPONSE:
REQUEST FOR PRODUCTION NO. 4:
Produce all documents and communications supporting or related to your Breach of
Fiduciary Duty claims (Count 6 of the Amended Complaint) made against Dugaboy and Nancy
Dondero.
RESPONSE:
REQUEST FOR PRODUCTION NO. 5:
Produce all documents and communications supporting or related to your Aiding and
Abetting a Breach of Fiduciary Duty claims (Count 7 of the Amended Complaint) against James
Dondero and Nancy Dondero.
RESPONSE:
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DEFENDANTS’ JOINT DISCOVERY REQUESTS TO HIGHLAND CAPITAL MANAGEMENT, L.P. PAGE 13 OF 31 CORE/3522697.0002/168823116
REQUEST FOR PRODUCTION NO. 6:
Produce all documents and communications supporting or related to your Avoidance and
Recovery of Actual Fraudulent Transfer claims (Counts 3 and 4 of the Amended Complaint) made
against NPA.
RESPONSE:
REQUEST FOR PRODUCTION NO. 7:
Produce all documents and communications supporting or related to your Avoidance and
Recovery of Actual Fraudulent Transfer claims (Counts 3 and 4 of the Amended Complaint) made
against HCMS.
RESPONSE:
REQUEST FOR PRODUCTION NO. 8:
Produce all documents and communications supporting or related to your Avoidance and
Recovery of Actual Fraudulent Transfer claims (Counts 3 and 4 of the Amended Complaint) made
against HCRE.
RESPONSE:
REQUEST FOR PRODUCTION NO. 9:
Produce all documents and communications supporting or related to your Avoidance and
Recovery of Actual Fraudulent Transfer claims (Counts 3 and 4 of the Amended Complaint) made
against James Dondero.
RESPONSE:
REQUEST FOR PRODUCTION NO. 10:
Produce all documents and communications supporting or related to any damages that you
are seeking pursuant to your Amended Complaints.
RESPONSE:
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REQUEST FOR PRODUCTION NO. 11:
Produce all documents and communications supporting or related to the allegation in the
Amended Complaints that, "At all relevant times, Mr. Dondero controlled the Debtor."
RESPONSE:
REQUEST FOR PRODUCTION NO. 12:
Produce all documents and communications related to the Alleged Agreement referenced
in the Amended Complaints.
RESPONSE:
REQUEST FOR PRODUCTION NO. 13:
Produce all documents and communications supporting or related to the allegation in the
Amended Complaints that "the Debtor's books and records do not reflect the Alleged Agreement."
RESPONSE:
REQUEST FOR PRODUCTION NO. 14:
Produce all documents and communications supporting or related to the allegation in the
Amended Complaints that "Dugaboy was not authorized to enter into the Alleged Agreement on
behalf of the Partnership or otherwise bind the Partnership (as "Partnership" is defined in the
Limited Partnership Agreement.)"
RESPONSE:
REQUEST FOR PRODUCTION NO. 15:
Produce all documents and communications supporting or related to the allegation in the
Amended Complaints that "Mr. Dondero did not inform the Debtor's CFO or outside auditor's
about the Alleged Agreement."
RESPONSE:
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REQUEST FOR PRODUCTION NO. 16:
Produce all communications between the Debtor and Debtor's outside auditor.
RESPONSE:
REQUEST FOR PRODUCTION NO. 17:
Produce all communications between the Debtor and Debtor's outside auditor related to
any allegations in the Amended Complaints.
RESPONSE:
REQUEST FOR PRODUCTION NO. 18:
Produce all communications between Mr. Dondero and Debtor's CFO (as that term is used
in the Amended Complaints) related to the Notes.
RESPONSE:
REQUEST FOR PRODUCTION NO. 19:
Produce all documents and communications supporting or related to the allegation in the
Amended Complaints that "Nancy Dondero also lacked the authority to enter into the Alleged
Agreement or to otherwise bind the Debtor."
RESPONSE:
REQUEST FOR PRODUCTION NO. 20:
Produce all communications between Nancy Dondero and James Dondero.
RESPONSE:
REQUEST FOR PRODUCTION NO. 21:
Produce all communications between Nancy Dondero and James Dondero related to the
allegations in the Amended Complaints.
RESPONSE:
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REQUEST FOR PRODUCTION NO. 22:
Produce all communications between Nancy Dondero and James Dondero related to James
Dondero's compensation from the Debtor.
RESPONSE:
REQUEST FOR PRODUCTION NO. 23:
Produce all documents and communications supporting or related to the allegations in the
Amended Complaints that each of the Defendants entered into the "Alleged Agreement with actual
intent to hinder, delay, or defraud a present or future creditor."
RESPONSE:
REQUEST FOR PRODUCTION NO. 24:
Produce all documents and communications supporting or related to the allegation in the
Amended Complaints that the "Alleged Agreement was not subject to negotiation."
RESPONSE:
REQUEST FOR PRODUCTION NO. 25:
Produce all documents and communications supporting or related to the allegation in the
Amended Complaints that "the value of the consideration received by the Debtor for the transfers
was not reasonably equivalent value."
RESPONSE:
REQUEST FOR PRODUCTION NO. 26:
Produce all documents and communications evidencing the value of the Notes.
RESPONSE:
REQUEST FOR PRODUCTION NO. 27:
Produce all documents and communications evidencing the value of the consideration
received by the Debtor related to the Notes.
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RESPONSE:
REQUEST FOR PRODUCTION NO. 28:
Produce all documents and communications supporting or related to the allegation in the
Amended Complaints that James Dondero and Nancy Dondero "were aware that Dugaboy would
have fiduciary duties to the Debtor if it acted to bind the Debtor."
RESPONSE:
REQUEST FOR PRODUCTION NO. 29:
Produce all documents and communications supporting any damages you are seeking
related to the Amended Complaints.
RESPONSE:
REQUEST FOR PRODUCTION NO. 30:
Produce all documents and communications relating to the solvency and financial
condition of the Debtor.
RESPONSE:
REQUEST FOR PRODUCTION NO. 31:
Produce all monthly balance sheets of the Debtor for the period from January 1, 2013 to
the present.
RESPONSE:
REQUEST FOR PRODUCTION NO. 32:
Produce all of the Debtor’s internal monthly reporting packages for the period from January
1, 2013 to the present.
RESPONSE:
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REQUEST FOR PRODUCTION NO. 33:
Produce all of the Debtor’s financial statements for the period from January 1, 2013 to the
present.
RESPONSE:
REQUEST FOR PRODUCTION NO. 34:
Produce all “loan summaries” of the Debtor for the period from January 1, 2013 to the
present.
RESPONSE:
REQUEST FOR PRODUCTION NO. 35:
Produce all of the Debtor’s audited financial statements for the period from January 1, 2013
to the present.
RESPONSE:
REQUEST FOR PRODUCTION NO. 36:
Produce all valuation reports, including all annual and/or periodic valuation reports, and
all other documents reflecting the enterprise value and/or asset value of the following entities:
Trussway Holdings, LLC, Trussway Industries, LLC, MGM Holdings, and Cornerstone
Healthcare for the period from January 1, 2013 to the present.
RESPONSE:
REQUEST FOR PRODUCTION NO. 37:
Produce all valuation reports, including all annual and/or periodic valuation reports, and
all other documents reflecting the enterprise value and/or asset value of all entities and assets
owned, directly or indirectly, by the following entities and in which the Debtor has an interest:
Highland Select Equity Fund, L.P., Highland Restoration Capital Partners, L.P., Highland CLO
Funding, Ltd., Highland Multi Strategy Credit Fund, L.P., Highland Capital Management Korea
Limited, and Cornerstone Healthcare.
RESPONSE:
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REQUEST FOR PRODUCTION NO. 38:
Produce all documents showing the financial performance of the following entities for the
period from January 1, 2013 to the present: (i) the Debtor; (ii) all of the Debtor’s Managed Funds;
(iii) all of the Debtor’s subsidiaries, both direct and indirect majority-owned; (iv) all Affiliates of
the Debtor; and (v) any other entity owned, controlled, and/or managed by the Debtor.
RESPONSE:
REQUEST FOR PRODUCTION NO. 39:
Produce all financial statements for the following entities for the period from January 1,
2013 to the present: (i) the Debtor; (ii) all of the Debtor’s Managed Funds; (iii) all of the Debtor’s
subsidiaries, both direct and indirect majority-owned; (iv) all Affiliates of the Debtor; and (v) any
other entity owned, controlled, and/or managed by the Debtor.
RESPONSE:
REQUEST FOR PRODUCTION NO. 40:
Produce all monthly balance sheets for the following entities for the period from January
1, 2013 to the present: (i) the Debtor; (ii) all of the Debtor’s Managed Funds; (iii) all of the Debtor’s
subsidiaries, both direct and indirect majority-owned; (iv) all Affiliates of the Debtor; and (v) any
other entity owned, controlled, and/or managed by the Debtor.
RESPONSE:
REQUEST FOR PRODUCTION NO. 41:
Produce all internal monthly reporting packages for the following entities for the period
from January 1, 2013 to the present: (i) the Debtor; (ii) all of the Debtor’s Managed Funds; (iii) all
of the Debtor’s subsidiaries, both direct and indirect majority-owned; (iv) all Affiliates of the
Debtor; and (v) any other entity owned, controlled, and/or managed by the Debtor.
RESPONSE:
REQUEST FOR PRODUCTION NO. 42:
Produce all documents reflecting the assets under management for the following entities
for the period from January 1, 2013 to the present: (i) the Debtor; (ii) all of the Debtor’s Managed
Funds; (iii) all of the Debtor’s subsidiaries, both direct and indirect majority-owned; (iv) all
Affiliates of the Debtor; and (v) any other entity owned, controlled, and/or managed by the Debtor.
RESPONSE:
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REQUEST FOR PRODUCTION NO. 43:
Produce all documents reflecting the investment results and/or performance for the
following entities for the period from January 1, 2013 to the present: (i) the Debtor; (ii) all of the
Debtor’s Managed Funds; (iii) all of the Debtor’s subsidiaries, both direct and indirect majority-
owned; (iv) all Affiliates of the Debtor; and (v) any other entity owned, controlled, and/or managed
by the Debtor.
RESPONSE:
REQUEST FOR PRODUCTION NO. 44:
Produce all documents reflecting marketing materials for the following entities for the
period from January 1, 2013 to the present: (i) the Debtor; (ii) all of the Debtor’s Managed Funds;
(iii) all of the Debtor’s subsidiaries, both direct and indirect majority-owned; (iv) all Affiliates of
the Debtor; and (v) any other entity owned, controlled, and/or managed by the Debtor.
RESPONSE:
REQUEST FOR PRODUCTION NO. 45:
Produce all documents related to any employment and/or shareholder or partnership
agreement between Dondero, on the one hand, and any of the following entities on the other hand,
for the period from January 1, 2013 to the present: (i) the Debtor; (ii) all of the Debtor’s Managed
Funds; (iii) all of the Debtor’s subsidiaries, both direct and indirect majority-owned; (iv) all
Affiliates of the Debtor; (v) any other entity owned, controlled, and/or managed by the Debtor;
and (vi) Strand Advisors, Inc.
RESPONSE:
REQUEST FOR PRODUCTION NO. 46:
Produce all documents related to any compensation (including, without limitation, base
salary, annual bonus, long-term incentives, equity distributions, equity interests, perks, long-term
awards, loans, forgiveness of debt, or otherwise) received by Dondero from any of the following
entities for the period from January 1, 2010 to the present: (i) the Debtor; (ii) all of the Debtor’s
Managed Funds; (iii) all of the Debtor’s subsidiaries, both direct and indirect majority-owned; (iv)
all Affiliates of the Debtor; (v) any other entity owned, controlled, and/or managed by the Debtor;
and (vi) Strand Advisors, Inc.
RESPONSE:
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REQUEST FOR PRODUCTION NO. 47:
Produce all documents related to any compensation (including, without limitation, base
salary, annual bonus, long-term incentives, equity distributions, equity interests, perks, long-term
awards, loans, forgiveness of debt, or otherwise) received by any Related Entity for Dondero or
on Dondero’s behalf, from any of the following entities for the period from January 1, 2010 to the
present: (i) the Debtor; (ii) all of the Debtor’s Managed Funds; (iii) all of the Debtor’s subsidiaries,
both direct and indirect majority-owned; (iv) all Affiliates of the Debtor; (v) any other entity
owned, controlled, and/or managed by the Debtor; and (vi) Strand Advisors, Inc.
RESPONSE:
REQUEST FOR PRODUCTION NO. 48:
Produce all documents reflecting and/or relating to any organizational charts for any of the
following entities for the period from January 1, 2013 to the present: (i) the Debtor; (ii) all of the
Debtor’s Managed Funds; (iii) all of the Debtor’s subsidiaries, both direct and indirect majority-
owned; (iv) all Affiliates of the Debtor; (v) any other entity owned, controlled, and/or managed by
the Debtor; and (vi) Strand Advisors, Inc.
RESPONSE:
REQUEST FOR PRODUCTION NO. 49:
Produce all documents reflecting and/or relating to Dondero’s employment, investment,
and/or managerial role(s) in any of the following entities for the period from January 1, 2013 to
the present: (i) the Debtor; (ii) all of the Debtor’s Managed Funds; (iii) all of the Debtor’s
subsidiaries, both direct and indirect majority-owned; (iv) all Affiliates of the Debtor; (v) any other
entity owned, controlled, and/or managed by the Debtor; and (vi) Strand Advisors, Inc.
RESPONSE:
REQUEST FOR PRODUCTION NO. 50:
Produce the Debtor’s “books and records” referred to in paragraph 66(j) of the Amended
Complaint filed against Defendant James Dondero.
RESPONSE:
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REQUEST FOR PRODUCTION NO. 51:
Produce all documents and communications evidencing any action taken by any limited
partner of the Debtor to (i) take part in the control (within the meaning of the Delaware Act) of the
Partnership’s business; (ii) transact any business in the Partnership’s name; and/or (iii) sign any
documents or otherwise bind the Partnership in accordance with the LPA.
RESPONSE
REQUEST FOR PRODUCTION NO. 52:
Produce all documents and communications evidencing the value of the HCRE Notes.
RESPONSE:
REQUEST FOR PRODUCTION NO. 53:
Produce all documents and communications evidencing the value of the HCMS Notes.
RESPONSE:
REQUEST FOR PRODUCTION NO. 54:
Produce all documents and communications evidencing the value of the NPA Note.
RESPONSE:
REQUEST FOR PRODUCTION NO. 55:
Produce all documents and communications evidencing the value of the Dondero Notes.
RESPONSE:
REQUEST FOR PRODUCTION NO. 56:
Produce the loan documentation for all loans made by Debtor to any then-current
executive, consultant, or employee of Debtor or any related Person.
RESPONSE:
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REQUEST FOR PRODUCTION NO. 57:
Produce all documents reflecting the payment status of all loans identified in response to
the above (No. 56) Request for Production, and if forgiven, all documents reflecting the conditions
for forgiveness.
RESPONSE:
REQUEST FOR PRODUCTION NO. 58:
Produce all documents related to any audits of the Debtor from 2013 forward, including,
but not limited to, any management letters, audit notes, and audit files.
RESPONSE:
REQUEST FOR PRODUCTION NO. 59:
Produce all documents related to the sale or potential sale of any portfolio companies of
the Debtor or interests in any portfolio companies owned by the Debtor, including, but not limited
to, MGM, Trussway, and Cornerstone.
RESPONSE:
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VI. REQUESTS FOR ADMISSION
REQUEST FOR ADMISSION NO. 1:
Admit that Highland Capital Management, L.P. entered into the Fourth Amended and
Restated Agreement of Limited Partnership of Highland Capital Management, L.P. (the "LPA"),
on or about December 24, 2015.
RESPONSE:
REQUEST FOR ADMISSION NO. 2:
Admit that the LPA provided that the Majority Interest of Highland Capital Management,
L.P. could approve compensation for the General Partner and its Affiliates (as those terms are
defined in the LPA).
RESPONSE:
REQUEST FOR ADMISSION NO. 3:
Admit that James Dondero was an Affiliate of the General Partner in 2017 (as those terms
are defined in the LPA).
RESPONSE:
REQUEST FOR ADMISSION NO. 4:
Admit that James Dondero was an Affiliate of the General Partner in 2018 (as those terms
are defined in the LPA).
RESPONSE:
REQUEST FOR ADMISSION NO. 5:
Admit that James Dondero was an Affiliate of the General Partner in 2019 (as those terms
are defined in the LPA).
RESPONSE:
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REQUEST FOR ADMISSION NO. 6:
Admit that James Dondero was an Affiliate of the General Partner in 2020 (as those terms
are defined in the LPA).
RESPONSE:
REQUEST FOR ADMISSION NO. 7:
Admit that the Dugaboy Family Trust held a Majority Interest in Highland Capital
Management, L.P. in 2017 (as those terms are defined in the LPA).
RESPONSE:
REQUEST FOR ADMISSION NO. 8:
Admit that the Dugaboy Family Trust held a Majority Interest in Highland Capital
Management, L.P. in 2018 (as those terms are defined in the LPA).
RESPONSE:
REQUEST FOR ADMISSION NO. 9:
Admit that the Dugaboy Family Trust held a Majority Interest in Highland Capital
Management, L.P. in 2019 (as those terms are defined in the LPA).
RESPONSE:
REQUEST FOR ADMISSION NO. 10:
Admit that the Dugaboy Family Trust held a Majority Interest in Highland Capital
Management, L.P. in 2020 (as those terms are defined in the LPA).
RESPONSE:
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REQUEST FOR ADMISSION NO. 11:
Admit that Nancy Dondero was the Dugaboy Family Trustee (as defined in the LPA) in
2017.
RESPONSE:
REQUEST FOR ADMISSION NO. 12:
Admit that Nancy Dondero was the Dugaboy Family Trustee (as defined in the LPA) in
2018.
RESPONSE:
REQUEST FOR ADMISSION NO. 13:
Admit that Nancy Dondero was the Dugaboy Family Trustee (as defined in the LPA) in
2019.
RESPONSE:
REQUEST FOR ADMISSION NO. 14:
Admit that Nancy Dondero was the Dugaboy Family Trustee (as defined in the LPA) in
2020.
RESPONSE:
REQUEST FOR ADMISSION NO. 15:
Admit that James Dondero was the primary beneficiary and the lifetime beneficiary of
Dugaboy in 2017.
RESPONSE:
REQUEST FOR ADMISSION NO. 16:
Admit that James Dondero was the primary beneficiary and the lifetime beneficiary of
Dugaboy in 2018.
RESPONSE:
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REQUEST FOR ADMISSION NO. 17:
Admit that James Dondero was the primary beneficiary and the lifetime beneficiary of
Dugaboy in 2019.
RESPONSE:
REQUEST FOR ADMISSION NO. 18:
Admit that James Dondero was the primary beneficiary and the lifetime beneficiary of
Dugaboy in 2020.
RESPONSE:
REQUEST FOR ADMISSION NO. 19:
Admit that the Debtor’s assets (including assets held through direct or indirect subsidiaries)
exceeded its liabilities as of December 31, 2017.
RESPONSE:
REQUEST FOR ADMISSION NO. 20:
Admit that the Debtor’s assets (including assets held through direct or indirect subsidiaries)
exceeded its liabilities in January 2018.
RESPONSE:
REQUEST FOR ADMISSION NO. 21:
Admit that the Debtor’s assets (including assets held through direct or indirect subsidiaries)
exceeded its liabilities as of December 31, 2018.
RESPONSE:
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REQUEST FOR ADMISSION NO. 22:
Admit that the Debtor’s assets (including assets held through direct or indirect subsidiaries)
exceeded its liabilities as of December 31, 2019.
RESPONSE:
REQUEST FOR ADMISSION NO. 23:
Admit that within Highland each of MGM, Cornerstone and Trussway were referred to as
“Portfolio Companies.”
RESPONSE:
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VII. INTERROGATORIES
INTERROGATORY NO. 1:
Identify all damages that you are seeking against each of the Defendants, including, how
those damages are calculated.
RESPONSE:
INTERROGATORY NO. 2:
Provide the factual basis for your allegation in the Amended Complaints that Dugaboy
owed a fiduciary duty to the Debtor.
RESPONSE:
INTERROGATORY NO. 3:
Provide the factual basis for your allegation in the Amended Complaints that Nancy
Dondero owed a fiduciary duty to the Debtor.
RESPONSE:
INTERROGATORY NO. 4:
Identify all acts or omissions by each of the Defendants that breached any alleged fiduciary
duties owed to the Debtor.
RESPONSE:
INTERROGATORY NO. 5:
Identify all acts or omissions by each of the Defendants that aided and abetted the breach
of any alleged fiduciary duties owed to the Debtor.
RESPONSE:
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INTERROGATORY NO. 6:
Provide the factual basis for your allegation in the Amended Complaints that “At all
relevant times, Mr. Dondero controlled the Debtor.”
RESPONSE:
INTERROGATORY NO. 7:
Provide the factual basis for your allegations in the Amended Complaint that James
Dondero controlled NPA.
RESPONSE:
INTERROGATORY NO. 8:
Provide the factual basis for your allegations in the Amended Complaint that James
Dondero controlled HCRE.
RESPONSE:
INTERROGATORY NO. 9:
Provide the factual basis for your allegations in the Amended Complaint that James
Dondero controlled HCMS.
RESPONSE:
INTERROGATORY NO. 10:
Provide the factual basis for your allegation in the Amended Complaints that "the Alleged
Agreement is a fiction."
RESPONSE:
INTERROGATORY NO. 11:
Provide the factual basis for your allegation in the Amended Complaints that "Mr. Dondero
entered into the Alleged Agreement with actual intent to hinder, delay, or defraud a present or
future creditor."
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RESPONSE:
INTERROGATORY NO. 12:
Identify the "value of the consideration received by the Debtor for the transfers," as that
term is used in the Amended Complaint, and provide the basis for how that value was calculated.
RESPONSE:
INTERROGATORY NO. 13:
Identify any portfolio companies that Debtor owns (wholly or partially).
RESPONSE:
INTERROGATORY NO. 14:
Identify any sale or potential sale of any portfolio companies (or a portion of such portfolio
companies) owned (wholly or partially) by the Debtor, including, but not limited to, Trussway,
MGM and Cornerstone, including the date of the sale, the buyer, and the amount paid.
RESPONSE:
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DEFENDANT JAMES DONDERO’S FIRST SET OF DISCOVERY REQUESTS TO HIGHLAND CAPITAL MANAGEMENT, L.P. PAGE 1 OF 13
John Y. Bonds, III State Bar I.D. No. 02589100 Clay M. Taylor State Bar I.D. No. 24033261 Bryan C. Assink State Bar I.D. No. 24089009 BONDS ELLIS EPPICH SCHAFER JONES LLP 420 Throckmorton Street, Suite 1000 Fort Worth, Texas 76102 (817) 405-6900 telephone (817) 405-6902 facsimile ATTORNEYS FOR DEFENDANT JAMES DONDERO
IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION In re: § Case No. 19-34054 § HIGHLAND CAPITAL MANAGEMENT, L.P. § Chapter 11 § Debtor. § § HIGHLAND CAPITAL MANAGEMENT, L.P., § § Plaintiff. § v. § Adversary No. 21-03003 § JAMES D. DONDERO, § § Defendant. §
DEFENDANT JAMES DONDERO’S FIRST SET OF DISCOVERY REQUESTS
DIRECTED TO HIGHLAND CAPITAL MANAGEMENT, L.P. TO: Highland Capital Management, L.P., by and through its attorneys of record, John Morris,
Pachulski Stang Ziehl & Jones LLP, 10100 Santa Monica Blvd., 13th Floor, Los Angeles, CA 90067.
Pursuant to Rules 26, 33, and 34 of the Federal Rules of Civil Procedure, made applicable
to this proceeding through Rules 7026, 7033, 7034, and 9014 of the Federal Rules of Bankruptcy
Procedure, Defendant James Dondero (“Defendant” or “Dondero”) hereby requests that, in
connection with the Complaint for (I) Breach of Contract and (II) Turnover of Property of the
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DEFENDANT JAMES DONDERO’S FIRST SET OF DISCOVERY REQUESTS TO HIGHLAND CAPITAL MANAGEMENT, L.P. PAGE 2 OF 13
Debtor’s Estate [Adv. Dkt. 1] (the “Complaint”), Plaintiff Highland Capital Management, L.P.
(the “Debtor” or “Plaintiff”) produce for inspection and copying the documents identified below,
and respond to the propounded interrogatories, on or before May 19, 2021 at 5 p.m. Central
Time (the “Requests”).1
Dated: April 19, 2021 Respectfully submitted,
/s/ Bryan C. Assink John Y. Bonds, III State Bar I.D. No. 02589100 Clay M. Taylor State Bar I.D. No. 24033261 Bryan C. Assink State Bar I.D. No. 24089009 Bonds Ellis Eppich Schafer Jones LLP 420 Throckmorton Street, Suite 1000 Fort Worth, Texas 76102 (817) 405-6900 telephone (817) 405-6902 facsimile: Email: [email protected] Email: [email protected] Email: [email protected] ATTORNEYS FOR DEFENDANT JAMES DONDERO
CERTIFICATE OF SERVICE
I, the undersigned, hereby certify that, on April 19, 2021, a true and correct copy of the foregoing document was served via email on counsel for the Debtor.
/s/ Bryan C. Assink Bryan C. Assink
1 Defendant makes these requests subject in all respects to his Motion for Withdrawal of the Reference [Adv. Dkt. No. 21] and the Motion to Stay Pending the Motion to Withdraw the Reference of Plaintiff’s Complaint [Adv. Dkt. No. 22] filed on April 15, 2021. For the reasons stated in the motions, Defendant believes that the reference should be withdrawn and this proceeding stayed while the motion to withdraw the reference is considered. Nevertheless, and subject to the motions, Defendant serves these requests in order to comply with the scheduling order currently in place. In addition, Defendant does not waive, but instead hereby preserves, his right to a jury trial and all rights and requests for relief asserted in the motions. Defendant does not consent to the Bankruptcy Court determining this proceeding or entering final orders or judgments in this proceeding. Defendant requests that the reference be withdrawn and that the District Court adjudicate this proceeding.
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I. DEFINITIONS
1. For purpose of interpreting and determining the scope of the discovery requests made
herein, the terms shall be given their most expansive and inclusive interpretations unless otherwise specifically limited by the language of an individual request. This includes, without limitation, the following:
(a) construing the singular form of the word to include the plural and the
plural form of the word to include the singular; the words “and” and “or” shall be both conjunctive and disjunctive as necessary to make the request inclusive rather than exclusive; the word “all” means “any and all;” the word “including” means “including without limitation;”
(b) construing the masculine to include the feminine and vice versa; and
(c) construing any masculine or feminine pronoun to include “it” where appropriate.
2. The term “Communication(s)” means the transmittal of information (in the form of facts,
ideas, inquiries, or otherwise) by any means, including but not limited to any meeting, conversation, discussion, conference, correspondence, message, or other written or oral transmission, exchange, or transfer of information in any form between two or more persons, including in person or by telephone, facsimile, telegraph, telex, electronic mail or other medium. The term also includes any Document transmitted or exchanged during such transmittal of information.
3. The term “Document(s)” refers to:
(a) all handwritten, typed, or printed matter of any kind, including the originals and all non-identical copies, whether different from the original by reason of any notation made on such copies or otherwise, including, without limitation, agreements, correspondence, forecasts, memoranda, e-mails, notes, jottings, speeches, press releases, diaries, examinations, statistics, letters, telegrams, minutes, time records, payroll records, expense records, contracts, reports, studies, training manuals, canceled checks, statements, receipts, delivery tickets, returns, summaries, work orders, pamphlets, books, prospectuses, statement of operations, inter-office and intra-office communications, internal and external audit reports, internal and external accounting reports, offers, notations of any sort of conversations, telephone calls, meetings, or other communications, bulletins, printed matter, computer print-outs, teletypes, invoices, worksheets, and all drafts, alterations, modifications, changes and amendments of any of the foregoing;
(b) graphic or aural records of representations of any kind, including, without limitation, photographs, charts, graphs, microfiche, microfilm, videotape, recordings, motion pictures; and
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(c) electronic, mechanical or electronic records or representations of any kind, including, without limitation, emails, tapes, cassettes, digital images, digital videos, videotapes, audiotapes, laser disks, disks (including CD-ROM disks), plans or other representations of anything concerning, describing, referring or relating, directly or indirectly, in whole or in part, to the subject matter of the discovery request at issue.
4. For the avoidance of doubt, the definitions of “Document(s)” and “Communication(s)”
include all ESI.
5. The words or phrases “relate to,” “relating to,” “concern,” “concerning,” “reflect,” “comprise,” “evidence,” “memorialize,” “constitute,” “describe,” “reflecting,” “regarding,” “refer to,” or “referring to” mean, without limitation, the following: effect, concern, refer to, reflect, evidence, display, contain, show, prove, encompass, support, demonstrate, involve, and/or include, in any way legally, logically, or factually connected to the matter referred to, or have a tendency to prove or disprove the matter referred to.
6. The term “ESI” shall have the meaning ascribed to it in the Federal Rules of Civil Procedure 16, 26, and 34(a).
7. As used herein, the term “Adversary Proceeding” shall mean and refer to the above-
captioned adversary proceeding in the Bankruptcy Case.
8. As used herein, the term “Bankruptcy Case” shall mean and refer to the above-captioned chapter 11 case of Highland Capital Management, L.P.
9. As used herein, the term “February 2 Transfer” shall have the meaning ascribed to it in Debtor’s Objection to Defendant James Dondero’s Emergency Motion to Continue Docket Call and Trial and/or Amend Scheduling Order [Adv. Dkt. 10], filed in this Adversary Proceeding on March 30, 2021.
10. As used herein, the term “August 1 Transfer” shall have the meaning ascribed to it in Debtor’s Objection to Defendant James Dondero’s Emergency Motion to Continue Docket Call and Trial and/or Amend Scheduling Order [Adv. Dkt. 10], filed in this Adversary Proceeding on March 30, 2021.
11. As used herein, the term “August 13 Transfer” shall have the meaning ascribed to it in
Debtor’s Objection to Defendant James Dondero’s Emergency Motion to Continue Docket Call and Trial and/or Amend Scheduling Order [Adv. Dkt. 10], filed in this Adversary Proceeding on March 30, 2021.
12. As used herein, the term “Transfers” shall have the meaning ascribed to it in paragraph 15 of the Debtor’s Objection to Defendant James Dondero’s Emergency Motion to Continue Docket Call and Trial and/or Amend Scheduling Order [Adv. Dkt. 10], filed in this Adversary Proceeding on March 30, 2021.
13. As used herein, the term “Debtor Objection” shall mean and refer to the Debtor’s Objection to Defendant James Dondero’s Emergency Motion to Continue Docket Call
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and Trial and/or Amend Scheduling Order [Adv. Dkt. 10], filed in this Adversary Proceeding on March 30, 2021.
14. As used herein, the term “Notes” shall mean and refer to the three promissory notes
attached to the Complaint.
15. As used herein, the term “Note 1” shall have the meaning ascribed to it in the Debtor’s Complaint and shall refer to Note 1 attached to the Complaint as Exhibit 1.
16. As used herein, the term “Note 2” shall have the meaning ascribed to it in the Debtor’s Complaint and shall refer to Note 2 attached to the Complaint as Exhibit 2.
17. As used herein, the term “Note 3” shall have the meaning ascribed to it in the Debtor’s
Complaint and shall refer to Note 3 attached to the Complaint as Exhibit 3.
18. As used herein, the term “Debtor” or “Plaintiff” shall mean and refer to the Debtor in the above-captioned Bankruptcy Case and Plaintiff in the Adversary Proceeding, Highland Capital Management, L.P., and any of its respective agents and representatives or any person acting or purporting to act on its behalf.
19. As used herein, the terms “you” and “your” shall mean and refer to the Debtor in the above-captioned Bankruptcy Case, Highland Capital Management, L.P., and any of its respective agents and representatives or any person acting or purporting to act on its behalf.
20. As used herein, “Person” shall mean and refer to any individual, partnership, corporation, trust, estate, cooperative, association, government, governmental subdivision, or agency, or entity.
21. The terms “Identify,” “identification,” “name,” or “describe” when used in reference to a natural person, mean to state his or her full name if known, his or her present or last known home and business address and telephone numbers, his or her present or last known position and business affiliation, and his or her positions and affiliations in business.
22. “Identify,” “identification,” “name,” or “describe” when referring to documents, means to give, to the extent known the following information: (a) type of document; (b) the general subject matter; (c) the date of the document; (d) the authors, addressees, and recipients; (e) the location of the document; (f) the identity of the person who has custody of the document; and (g) whether the document has been destroyed, and if so, the (i) the date of the destruction; (ii) the reason for its destruction; and (iii) the identity of the person who destroyed it.
23. Unless otherwise specified, the applicable time period for these Discovery Requests shall
be from January 1, 2017 to the present.
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II. INSTRUCTIONS
1. If the same person, document, or other item is required to be identified in your
answer to two or more interrogatories, it is sufficient to identify it in your answer to the first
interrogatory and thereafter to refer to that answer in response to call subsequent interrogatories
calling for identification of the same person, document, or other item.
2. If any communication or document required to be identified in response to these
Interrogatories and/or Requests for Production of Documents is claimed to be privileged, such
communication or document must be identified within a privilege log, which shall be produced
contemporaneously with the non-privileged documents responsive to these Requests, and which
privilege log shall identify each such communication or document, to the extent applicable, by
giving a description of such communication or document, the title, date of its creation, subject
matter, author, addressee, where it was made or created, persons to whom copies were furnished
and to whom the substance of the documents was communicated at any time after its creation,
and the ground(s) for the privilege claim.
3. Whenever in the Interrogatories the information requested is contained in or may
otherwise be derived or ascertained from a document, you may, in lieu of setting forth the
requested information:
A. Identify the document from which the answer may be derived;
B. Specify the portion (or portions) of the document that contains the
information, or the way in which the information may be derived or ascertained from the
document; and
C. Produce the document for inspection and copying (in electronic format, if
available, otherwise as printed on document), or deliver a copy of the document to
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Defendant’s counsel prior to, or contemporaneous with, service of the answer to the
Interrogatories.
4. Produce documents in the format described in Appendix A.
5. When producing documents pursuant hereto, copies may be produced in lieu of
originals. You are required to produce the documents as they are kept in the usual course of
business or to organize and label them to correspond with each category in these requests.
6. If any documents requested herein have been lost or destroyed, the documents so
lost or destroyed shall be identified by author, date, and subject matter. In addition, the date of
disposal, the manner of disposal, the reason for disposal, the person authorizing disposal, and the
person disposing of the documents shall be identified.
7. If you believe that any of the following Requests or Interrogatories are
ambiguous, send a letter to Defendant’s counsel specifying which Interrogatory is unclear to you
and the basis of the perceived ambiguity. We will respond promptly by letter and attempt to
rephrase the Interrogatory or Request for you.
III. DUTY TO SUPPLEMENT
Pursuant to Rule 26(e)(1) of the Federal Rules of Civil Procedure, you are requested to
timely supplement your responses to these discovery requests if you learn that a response is in
some material respect incorrect and if the additional or corrective material had not otherwise
been made known during the discovery process or in writing.
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IV. REQUEST FOR PRODUCTION OF DOCUMENTS
REQUEST FOR PRODUCTION NO. 1: Produce all documents and communications concerning the Notes. RESPONSE: REQUEST FOR PRODUCTION NO. 2: Produce all documents and communications exchanged between any Person, including the Plaintiff and/or the Defendant, and any other Person concerning any of the Notes, including but not limited to Melissa Schroth, David Klos, Frank Waterhouse, Brian Collins, Mark Okada, Drew Wilson and/or John Honis. RESPONSE: REQUEST FOR PRODUCTION NO. 3: Produce all documents and communications exchange between any employee of the Debtor and any other Person concerning the February 2 Transfer, the August 1 Transfer, and/or the August 13 Transfer. RESPONSE: REQUEST FOR PRODUCTION NO. 4: Produce all documents and communications exchanged between any employee of the Debtor and any other Person concerning any of the Notes or the Transfers. RESPONSE: REQUEST FOR PRODUCTION NO. 5: Produce documents evidencing any amounts paid on account of any of the Notes. RESPONSE: REQUEST FOR PRODUCTION NO. 6: Produce all documents evidencing all attorney’s fees and expenses the Debtor incurred in connection with the collection of any of the Notes. RESPONSE: REQUEST FOR PRODUCTION NO. 7: Produce all of the Debtor’s financial statements, including those referenced in Paragraph 30 of the Debtor Objection, for the period from January 1, 2018 to the present. RESPONSE: REQUEST FOR PRODUCTION NO. 8: Produce all monthly balance sheets of the Debtor for the period from January 1, 2018 to the present. RESPONSE:
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REQUEST FOR PRODUCTION NO. 9: Produce all of the Debtor’s internal monthly reporting packages for the period from January 1, 2018 to the present. RESPONSE: REQUEST FOR PRODUCTION NO. 10: Produce all “loan summaries” of the Debtor (as defined in paragraph 36 of the Debtor Objection) for the period from January 1, 2018 to the present. RESPONSE: REQUEST FOR PRODUCTION NO. 11: Produce a copy of all written demands made by the Debtor on Defendant concerning any of the Notes. RESPONSE: REQUEST FOR PRODUCTION NO. 12: Produce all documents and communications exchanged between Defendant and any other Person concerning any tax obligations of a former partner or current partner of the Debtor for the period from January 1, 2015 to the present. RESPONSE: REQUEST FOR PRODUCTION NO. 13: Produce all documents and communications exchanged between Defendant and any employee of the Debtor concerning any future collection of the Notes by the Debtor for the period from January 1, 2018 to the present. RESPONSE: REQUEST FOR PRODUCTION NO. 14: Produce all drafts, prior versions, amendments, supplements, and/or revisions of the Notes, and any document related to the drafting of any of the Notes. RESPONSE: REQUEST FOR PRODUCTION NO. 15: Produce all communications between Defendant and any other Person regarding any tax liability or potential tax liability of Defendant for the period from January 1, 2015 to the present. RESPONSE: REQUEST FOR PRODUCTION NO. 16: Produce all Form W-2’s of the Defendant in connection with his employment with the Debtor for the period from January 1, 2008 to the present. RESPONSE:
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REQUEST FOR PRODUCTION NO. 17: Produce all documents and communications exchanged between any employee of the Debtor and any other Person concerning any future collection on the Notes by the Debtor for the period from January 1, 2018 to the present. RESPONSE: REQUEST FOR PRODUCTION NO. 18: Produce all documents and communications exchanged between employees of the Debtor concerning any future collection of the Notes by the Debtor for the period from January 1, 2018 to the present. RESPONSE: REQUEST FOR PRODUCTION NO. 19: Produce all governing documents related to or governing Debtor, including any agreements of limited partnership (including amendments and restatements), by-laws, buy-sell agreements, side letters, and other controlling or governing documents. RESPONSE: REQUEST FOR PRODUCTION NO. 20: Produce all contribution agreements between Debtor and Hunter Mountain Investment Trust (including amendments and restatement). RESPONSE: REQUEST FOR PRODUCTION NO 21: Produce the loan documentation for all loans made by Debtor to any then-current executive, consultant, or employee of Debtor or any related Person. RESPONSE: REQUEST FOR PRODUCTION NO 22: Produce all documents reflecting the payment status of all loans identified in response to the above (No. 21) Request for Production, and if forgiven, all documents reflecting the conditions for forgiveness. RESPONSE: REQUEST FOR PRODUCTION NO 23: Produce all documents concerning or relating to the Debtor’s monthly operating reports filed in the Bankruptcy Case. RESPONSE: REQUEST FOR PRODUCTION NO 24: Produce all documents utilized or referenced by the Debtor and/or its employees in preparing the Debtor’s monthly operating reports filed in the Bankruptcy Case.
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V. FIRST SET OF INTERROGATORIES
INTERROGATORY NO. 1: Identify every Person that has knowledge related to the negotiation or execution of the Notes. RESPONSE: INTERROGATORY NO. 2: Identify every Person that has knowledge related to the negotiation of all agreements relating to the Notes. RESPONSE: INTERROGATORY NO. 3: Identify each witness that the Debtor intends to call at trial in this Adversary Proceeding. RESPONSE: INTERROGATORY NO. 4: Identify any modifications, alterations or amendments (either written or oral) that were made with respect to any of the Notes. RESPONSE: INTERROGATORY NO. 5: Identify all damages that Debtor is seeking against Defendant, including how those damages were calculated. RESPONSE: INTERROGATORY NO. 6: Identify any demands made to Defendant related to the Notes, including the date of such demands and whether they were oral or in writing. RESPONSE: INTERROGATORY NO. 7: Identify any loans made by the Debtor to any then-current executive, consultant or employee of the Debtor, including the date of the loan, the amount of the loan, the current balance of the loan, and whether any portion of the loan has been forgiven by the Debtor for the period from January 1, 2008 to the present. RESPONSE:
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Appendix A
I. Document Production Format A. Electronically Stored Information (ESI) Electronically stored information will, except as provided in paragraph (a) and (b) below, be produced as single-page black and white TIFF images (300 d.p.i., CCITT Group IV (2D) Compression) together with a standard Concordance (.dat) and Opticon (.opt) load file, document level searchable text and the following fields of metadata, as applicable, or their functional equivalent:
● BegProd ● EndProd ● BegProdAttach ● EndProdAttach ● Image Count ● Email Subject ● File Name ● File Extension ● From ● To ● CC ● BCC ● Date Created ● Time Created ● Date Sent ● Time Sent ● Date Received ● Time Received ● Date Modified ● Time Modified ● MD5 Hash ● Author ● Redaction present ● Confidentiality designation • Custodian
(a) Spreadsheets and Audio/Video file. Spreadsheets and Audio/Video files will be produced in their native format, together with a placeholder image in TIFF format. The TIFF image placeholder will display the Bates number to be used for the native document and will also display confidentiality designation, if any, for the native document.
(b) Color. Documents containing color will be produced in 300 d.p.i. JPEG format.
(c) Databases. If the discovery calls for production of data stored in a database
(structured data), the parties will confer and make a good faith effort to agree on a report from the database reflecting the discoverable information.
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(b) Embedded Documents. All non-graphic embedded objects (e.g., Word documents, Excel spreadsheets, .wav files, etc.) that are found within a file shall be extracted and produced. The embedded files will be treated as attachments to the original file, with the parent/child relationship preserved.
(c) Numbering and Other Branding. The TIFF images will have sequential and unique Bates numbers and, where applicable, branding for confidentiality on each of the TIFF images.
B. Paper Information that is maintained in paper format shall scanned and produced as single page black and white TIFF images (300 d.p.i., CCITT Group IV (2D) Compression) with a standard Concordance load file, and associated searchable text (OCR). The paper documents will be unitized in the load file in a manner that maintains the documents and any attachments as they are maintained in the usual course of business. TIFF images will include unique sequential Bates numbers and any confidentiality or other branding.
Paper documents that contain Post It Notes or their equivalent will be scanned with the notes affixed if this can be done without obstructing other content on the document. If the content of the document is obscured by the affixed note, the document and note will be scanned separately, and the note treated as an attachment.
II. Production Media. Document productions will be made via secure FTP, or on encrypted physical media appropriate to the size of the production. When produced on encrypted physical media, the face of the production media will state: (i) the case name and number; (ii) the producing party’s name; (iii) the production date; (iv) confidentiality notation where appropriate; and (v) the Bates number range for documents contained on the production media. The producing party will separately provide explanation of how to decrypt the files.
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John Y. Bonds, III State Bar I.D. No. 02589100 Clay M. Taylor State Bar I.D. No. 24033261 Bryan C. Assink State Bar I.D. No. 24089009 BONDS ELLIS EPPICH SCHAFER JONES LLP 420 Throckmorton Street, Suite 1000 Fort Worth, Texas 76102 (817) 405-6900 telephone (817) 405-6902 facsimile COUNSEL FOR DEFENDANT JAMES DONDERO
Deborah Deitsch-Perez State Bar I.D. No. 24036072 STINSON LLP 3102 Oak Lawn Avenue, Suite 777 Dallas, Texas 75219 Telephone: (214) 560-2201 Facsimile: (214) 999-4667 COUNSEL FOR DEFENDANT JAMES DONDERO
IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION In re: § Case No. 19-34054 § HIGHLAND CAPITAL MANAGEMENT, L.P. § Chapter 11 § Debtor. § § HIGHLAND CAPITAL MANAGEMENT, L.P., § § Plaintiff. § v. § Adversary No. 21-03003 § JAMES D. DONDERO, § § Defendant. §
DEFENDANT JAMES DONDERO’S SECOND REQUEST FOR PRODUCTION
DIRECTED TO HIGHLAND CAPITAL MANAGEMENT, L.P. TO: Highland Capital Management, L.P., by and through its attorneys of record, John Morris,
Pachulski Stang Ziehl & Jones LLP, 10100 Santa Monica Blvd., 13th Floor, Los Angeles, CA 90067.
Pursuant to Rules 26 and 34 of the Federal Rules of Civil Procedure, made applicable to
this proceeding through Rules 7026, 7034, and 9014 of the Federal Rules of Bankruptcy
Procedure, Defendant James Dondero (“Defendant” or “Dondero”) hereby requests that, in
connection with the Complaint for (I) Breach of Contract and (II) Turnover of Property of the
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Debtor’s Estate [Adv. Dkt. 1] (the “Complaint”), Plaintiff Highland Capital Management, L.P.
(the “Debtor” or “Plaintiff”) produce for inspection and copying the documents identified below
on or before May 21, 2021 at 5 p.m. Central Time (the “Requests”).1
Dated: April 21, 2021 Respectfully submitted,
/s/ Bryan C. Assink John Y. Bonds, III State Bar I.D. No. 02589100 Clay M. Taylor State Bar I.D. No. 24033261 Bryan C. Assink State Bar I.D. No. 24089009 BONDS ELLIS EPPICH SCHAFER JONES LLP 420 Throckmorton Street, Suite 1000 Fort Worth, Texas 76102 (817) 405-6900 telephone (817) 405-6902 facsimile: Email: [email protected] Email: [email protected] Email: [email protected] and STINSON LLP Deborah Deitsch-Perez State Bar No. 24036072 3102 Oak Lawn Avenue, Suite 777 Dallas, Texas 75219-4259 Telephone: (214) 560-2201 Telecopier: (214) 560-2203 Email: [email protected] COUNSEL FOR DEFENDANT JAMES DONDERO
1 Defendant makes these requests subject in all respects to his Motion for Withdrawal of the Reference [Adv. Dkt. No. 21] and the Motion to Stay Pending the Motion to Withdraw the Reference of Plaintiff’s Complaint [Adv. Dkt. No. 22] filed on April 15, 2021. For the reasons stated in the motions, Defendant believes that the reference should be withdrawn and this proceeding stayed while the motion to withdraw the reference is considered. Nevertheless, and subject to the motions, Defendant serves these requests in order to comply with the scheduling order currently in place. In addition, Defendant does not waive, but instead hereby preserves, his right to a jury trial and all rights and requests for relief asserted in the motions. Defendant does not consent to the Bankruptcy Court determining this proceeding or entering final orders or judgments in this proceeding. Defendant requests that the reference be withdrawn and that the District Court adjudicate this proceeding.
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CERTIFICATE OF SERVICE
I, the undersigned, hereby certify that, on April 21, 2021, a true and correct copy of the
foregoing document was served via email on counsel for the Debtor.
/s/ Bryan C. Assink Bryan C. Assink
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I. DEFINITIONS
1. For purpose of interpreting and determining the scope of the discovery requests made
herein, the terms shall be given their most expansive and inclusive interpretations unless otherwise specifically limited by the language of an individual request. This includes, without limitation, the following:
(a) construing the singular form of the word to include the plural and the
plural form of the word to include the singular; the words “and” and “or” shall be both conjunctive and disjunctive as necessary to make the request inclusive rather than exclusive; the word “all” means “any and all;” the word “including” means “including without limitation;”
(b) construing the masculine to include the feminine and vice versa; and
(c) construing any masculine or feminine pronoun to include “it” where appropriate.
2. The term “Communication(s)” means the transmittal of information (in the form of facts,
ideas, inquiries, or otherwise) by any means, including but not limited to any meeting, conversation, discussion, conference, correspondence, message, or other written or oral transmission, exchange, or transfer of information in any form between two or more persons, including in person or by telephone, facsimile, telegraph, telex, electronic mail or other medium. The term also includes any Document transmitted or exchanged during such transmittal of information.
3. The term “Document(s)” refers to:
(a) all handwritten, typed, or printed matter of any kind, including the originals and all non-identical copies, whether different from the original by reason of any notation made on such copies or otherwise, including, without limitation, agreements, correspondence, forecasts, memoranda, e-mails, notes, jottings, speeches, press releases, diaries, examinations, statistics, letters, telegrams, minutes, time records, payroll records, expense records, contracts, reports, studies, training manuals, canceled checks, statements, receipts, delivery tickets, returns, summaries, work orders, pamphlets, books, prospectuses, statement of operations, inter-office and intra-office communications, internal and external audit reports, internal and external accounting reports, offers, notations of any sort of conversations, telephone calls, meetings, or other communications, bulletins, printed matter, computer print-outs, teletypes, invoices, worksheets, and all drafts, alterations, modifications, changes and amendments of any of the foregoing;
(b) graphic or aural records of representations of any kind, including, without limitation, photographs, charts, graphs, microfiche, microfilm, videotape, recordings, motion pictures; and
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(c) electronic, mechanical or electronic records or representations of any kind, including, without limitation, emails, tapes, cassettes, digital images, digital videos, videotapes, audiotapes, laser disks, disks (including CD-ROM disks), plans or other representations of anything concerning, describing, referring or relating, directly or indirectly, in whole or in part, to the subject matter of the discovery request at issue.
4. For the avoidance of doubt, the definitions of “Document(s)” and “Communication(s)”
include all ESI.
5. The words or phrases “relate to,” “relating to,” “concern,” “concerning,” “reflect,” “comprise,” “evidence,” “memorialize,” “constitute,” “describe,” “reflecting,” “regarding,” “refer to,” or “referring to” mean, without limitation, the following: effect, concern, refer to, reflect, evidence, display, contain, show, prove, encompass, support, demonstrate, involve, and/or include, in any way legally, logically, or factually connected to the matter referred to, or have a tendency to prove or disprove the matter referred to.
6. The term “ESI” shall have the meaning ascribed to it in the Federal Rules of Civil Procedure 16, 26, and 34(a).
7. As used herein, the term “Adversary Proceeding” shall mean and refer to the above-
captioned adversary proceeding in the Bankruptcy Case.
8. As used herein, the term “Bankruptcy Case” shall mean and refer to the above-captioned chapter 11 case of Highland Capital Management, L.P.
9. As used herein, the term “Notes” shall mean and refer to the three promissory notes attached to the Complaint.
10. As used herein, the term “Debtor” or “Plaintiff” shall mean and refer to the Debtor in the above-captioned Bankruptcy Case and Plaintiff in the Adversary Proceeding, Highland Capital Management, L.P., and any of its respective agents and representatives or any person acting or purporting to act on its behalf.
11. As used herein, the terms “you” and “your” shall mean and refer to the Debtor in the above-captioned Bankruptcy Case, Highland Capital Management, L.P., and any of its respective agents and representatives or any person acting or purporting to act on its behalf.
12. As used herein, “Person” shall mean and refer to any individual, partnership, corporation, trust, estate, cooperative, association, government, governmental subdivision, or agency, or entity.
13. Unless otherwise specified, the applicable time period for these Discovery Requests shall be from January 1, 2017 to the present.
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II. INSTRUCTIONS
1. If any communication or document required to be produced or identified in
response to these Requests for Production of Documents is claimed to be privileged, such
communication or document must be identified within a privilege log, which shall be produced
contemporaneously with the non-privileged documents responsive to these Requests, and which
privilege log shall identify each such communication or document, to the extent applicable, by
giving a description of such communication or document, the title, date of its creation, subject
matter, author, addressee, where it was made or created, persons to whom copies were furnished
and to whom the substance of the documents was communicated at any time after its creation,
and the ground(s) for the privilege claim.
2. Produce documents in the format described in Appendix A.
3. When producing documents pursuant hereto, copies may be produced in lieu of
originals. You are required to produce the documents as they are kept in the usual course of
business or to organize and label them to correspond with each category in these requests.
4. If any documents requested herein have been lost or destroyed, the documents so
lost or destroyed shall be identified by author, date, and subject matter. In addition, the date of
disposal, the manner of disposal, the reason for disposal, the person authorizing disposal, and the
person disposing of the documents shall be identified.
5. If you believe that any of the following Requests are ambiguous, send a letter to
Defendant’s counsel specifying which Request is unclear to you and the basis of the perceived
ambiguity. We will respond promptly by letter and attempt to rephrase the Request for you.
III. DUTY TO SUPPLEMENT
Pursuant to Rule 26(e)(1) of the Federal Rules of Civil Procedure, you are requested to
timely supplement your responses to these discovery requests if you learn that a response is in
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some material respect incorrect and if the additional or corrective material had not otherwise
been made known during the discovery process or in writing.
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IV. SECOND REQUEST FOR PRODUCTION OF DOCUMENTS
REQUEST FOR PRODUCTION NO. 25: Produce all of the Debtor’s audited financial statements for the period from January 1, 2017 to the present. RESPONSE: REQUEST FOR PRODUCTION NO. 26: Produce all valuation reports, including all annual and/or periodic valuation reports, and all other documents reflecting the enterprise value and/or asset value of the following entities: Trussway Holdings, LLC, Trussway Industries, LLC, MGM Holdings, and Cornerstone Healthcare for the period from January 1, 2017 to the present. RESPONSE: REQUEST FOR PRODUCTION NO. 27: Produce all valuation reports, including all annual and/or periodic valuation reports, and all other documents reflecting the enterprise value and/or asset value of all entities and assets owned, directly or indirectly, by the following entities and in which the Debtor has an interest: Highland Select Equity Fund, L.P., Highland Restoration Capital Partners, L.P., Highland CLO Funding, Ltd., Highland Multi Strategy Credit Fund, L.P., Highland Capital Management Korea Limited, and Cornerstone Healthcare. RESPONSE:
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Appendix A
I. Document Production Format A. Electronically Stored Information (ESI) Electronically stored information will, except as provided in paragraph (a) and (b) below, be produced as single-page black and white TIFF images (300 d.p.i., CCITT Group IV (2D) Compression) together with a standard Concordance (.dat) and Opticon (.opt) load file, document level searchable text and the following fields of metadata, as applicable, or their functional equivalent:
● BegProd ● EndProd ● BegProdAttach ● EndProdAttach ● Image Count ● Email Subject ● File Name ● File Extension ● From ● To ● CC ● BCC ● Date Created ● Time Created ● Date Sent ● Time Sent ● Date Received ● Time Received ● Date Modified ● Time Modified ● MD5 Hash ● Author ● Redaction present ● Confidentiality designation • Custodian
(a) Spreadsheets and Audio/Video file. Spreadsheets and Audio/Video files will be produced in their native format, together with a placeholder image in TIFF format. The TIFF image placeholder will display the Bates number to be used for the native document and will also display confidentiality designation, if any, for the native document.
(b) Color. Documents containing color will be produced in 300 d.p.i. JPEG format.
(c) Databases. If the discovery calls for production of data stored in a database
(structured data), the parties will confer and make a good faith effort to agree on a report from the database reflecting the discoverable information.
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(b) Embedded Documents. All non-graphic embedded objects (e.g., Word documents, Excel spreadsheets, .wav files, etc.) that are found within a file shall be extracted and produced. The embedded files will be treated as attachments to the original file, with the parent/child relationship preserved.
(c) Numbering and Other Branding. The TIFF images will have sequential and unique Bates numbers and, where applicable, branding for confidentiality on each of the TIFF images.
B. Paper Information that is maintained in paper format shall scanned and produced as single page black and white TIFF images (300 d.p.i., CCITT Group IV (2D) Compression) with a standard Concordance load file, and associated searchable text (OCR). The paper documents will be unitized in the load file in a manner that maintains the documents and any attachments as they are maintained in the usual course of business. TIFF images will include unique sequential Bates numbers and any confidentiality or other branding.
Paper documents that contain Post It Notes or their equivalent will be scanned with the notes affixed if this can be done without obstructing other content on the document. If the content of the document is obscured by the affixed note, the document and note will be scanned separately, and the note treated as an attachment.
II. Production Media. Document productions will be made via secure FTP, or on encrypted physical media appropriate to the size of the production. When produced on encrypted physical media, the face of the production media will state: (i) the case name and number; (ii) the producing party’s name; (iii) the production date; (iv) confidentiality notation where appropriate; and (v) the Bates number range for documents contained on the production media. The producing party will separately provide explanation of how to decrypt the files.
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John Y. Bonds, III State Bar I.D. No. 02589100 Clay M. Taylor State Bar I.D. No. 24033261 Bryan C. Assink State Bar I.D. No. 24089009 BONDS ELLIS EPPICH SCHAFER JONES LLP 420 Throckmorton Street, Suite 1000 Fort Worth, Texas 76102 (817) 405-6900 telephone (817) 405-6902 facsimile COUNSEL FOR DEFENDANT JAMES DONDERO
Deborah Deitsch-Perez State Bar I.D. No. 24036072 STINSON LLP 3102 Oak Lawn Avenue, Suite 777 Dallas, Texas 75219 Telephone: (214) 560-2201 Facsimile: (214) 999-4667 COUNSEL FOR DEFENDANT JAMES DONDERO
IN THE UNITED STATES BANKRUPTCY COURT FOR THE NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION In re: § Case No. 19-34054 § HIGHLAND CAPITAL MANAGEMENT, L.P. § Chapter 11 § Debtor. § § HIGHLAND CAPITAL MANAGEMENT, L.P., § § Plaintiff. § v. § Adversary No. 21-03003 § JAMES D. DONDERO, § § Defendant. §
DEFENDANT JAMES DONDERO’S THIRD REQUEST FOR PRODUCTION
DIRECTED TO HIGHLAND CAPITAL MANAGEMENT, L.P. TO: Highland Capital Management, L.P., by and through its attorneys of record, John Morris,
Pachulski Stang Ziehl & Jones LLP, 10100 Santa Monica Blvd., 13th Floor, Los Angeles, CA 90067.
Pursuant to Rules 26 and 34 of the Federal Rules of Civil Procedure, made applicable to
this proceeding through Rules 7026, 7034, and 9014 of the Federal Rules of Bankruptcy
Procedure, Defendant James Dondero (“Defendant” or “Dondero”) hereby requests that, in
connection with the Complaint for (I) Breach of Contract and (II) Turnover of Property of the
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Debtor’s Estate [Adv. Dkt. 1] (the “Complaint”), Plaintiff Highland Capital Management, L.P.
(the “Debtor” or “Plaintiff”) produce for inspection and copying the documents identified below
on or before May 26, 2021 at 5 p.m. Central Time (the “Requests”).1
Dated: April 26, 2021 Respectfully submitted,
/s/ Bryan C. Assink John Y. Bonds, III State Bar I.D. No. 02589100 Clay M. Taylor State Bar I.D. No. 24033261 Bryan C. Assink State Bar I.D. No. 24089009 BONDS ELLIS EPPICH SCHAFER JONES LLP 420 Throckmorton Street, Suite 1000 Fort Worth, Texas 76102 (817) 405-6900 telephone (817) 405-6902 facsimile: Email: [email protected] Email: [email protected] Email: [email protected] and STINSON LLP Deborah Deitsch-Perez State Bar I.D. No. 24036072 3102 Oak Lawn Avenue, Suite 777 Dallas, Texas 75219-4259 Telephone: (214) 560-2201 Telecopier: (214) 560-2203 Email: [email protected] COUNSEL FOR DEFENDANT JAMES DONDERO
1 Defendant makes these requests subject in all respects to his Motion for Withdrawal of the Reference [Adv. Dkt. No. 21] and the Motion to Stay Pending the Motion to Withdraw the Reference of Plaintiff’s Complaint [Adv. Dkt. No. 22] filed on April 15, 2021. For the reasons stated in the motions, Defendant believes that the reference should be withdrawn and this proceeding stayed while the motion to withdraw the reference is considered. Nevertheless, and subject to the motions, Defendant serves these requests in order to comply with the scheduling order currently in place. In addition, Defendant does not waive, but instead hereby preserves, his right to a jury trial and all rights and requests for relief asserted in the motions. Defendant does not consent to the Bankruptcy Court determining this proceeding or entering final orders or judgments in this proceeding. Defendant requests that the reference be withdrawn and that the District Court adjudicate this proceeding.
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CERTIFICATE OF SERVICE
I, the undersigned, hereby certify that, on April 26, 2021, a true and correct copy of the
foregoing document was served via email on counsel for the Debtor.
/s/ Bryan C. Assink Bryan C. Assink
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I. DEFINITIONS
1. For purpose of interpreting and determining the scope of the discovery requests made
herein, the terms shall be given their most expansive and inclusive interpretations unless otherwise specifically limited by the language of an individual request. This includes, without limitation, the following:
(a) construing the singular form of the word to include the plural and the
plural form of the word to include the singular; the words “and” and “or” shall be both conjunctive and disjunctive as necessary to make the request inclusive rather than exclusive; the word “all” means “any and all;” the word “including” means “including without limitation;”
(b) construing the masculine to include the feminine and vice versa; and
(c) construing any masculine or feminine pronoun to include “it” where appropriate.
2. The term “Communication(s)” means the transmittal of information (in the form of facts,
ideas, inquiries, or otherwise) by any means, including but not limited to any meeting, conversation, discussion, conference, correspondence, message, or other written or oral transmission, exchange, or transfer of information in any form between two or more persons, including in person or by telephone, facsimile, telegraph, telex, electronic mail or other medium. The term also includes any Document transmitted or exchanged during such transmittal of information.
3. The term “Document(s)” refers to:
(a) all handwritten, typed, or printed matter of any kind, including the originals and all non-identical copies, whether different from the original by reason of any notation made on such copies or otherwise, including, without limitation, agreements, correspondence, forecasts, memoranda, e-mails, notes, jottings, speeches, press releases, diaries, examinations, statistics, letters, telegrams, minutes, time records, payroll records, expense records, contracts, reports, studies, training manuals, canceled checks, statements, receipts, delivery tickets, returns, summaries, work orders, pamphlets, books, prospectuses, statement of operations, inter-office and intra-office communications, internal and external audit reports, internal and external accounting reports, offers, notations of any sort of conversations, telephone calls, meetings, or other communications, bulletins, printed matter, computer print-outs, teletypes, invoices, worksheets, and all drafts, alterations, modifications, changes and amendments of any of the foregoing;
(b) graphic or aural records of representations of any kind, including, without limitation, photographs, charts, graphs, microfiche, microfilm, videotape, recordings, motion pictures; and
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(c) electronic, mechanical or electronic records or representations of any kind, including, without limitation, emails, tapes, cassettes, digital images, digital videos, videotapes, audiotapes, laser disks, disks (including CD-ROM disks), plans or other representations of anything concerning, describing, referring or relating, directly or indirectly, in whole or in part, to the subject matter of the discovery request at issue.
4. For the avoidance of doubt, the definitions of “Document(s)” and “Communication(s)”
include all ESI.
5. The words or phrases “relate to,” “relating to,” “concern,” “concerning,” “reflect,” “comprise,” “evidence,” “memorialize,” “constitute,” “describe,” “reflecting,” “regarding,” “refer to,” or “referring to” mean, without limitation, the following: effect, concern, refer to, reflect, evidence, display, contain, show, prove, encompass, support, demonstrate, involve, and/or include, in any way legally, logically, or factually connected to the matter referred to, or have a tendency to prove or disprove the matter referred to.
6. The term “ESI” shall have the meaning ascribed to it in the Federal Rules of Civil Procedure 16, 26, and 34(a).
7. As used herein, the term “Adversary Proceeding” shall mean and refer to the above-
captioned adversary proceeding in the Bankruptcy Case.
8. As used herein, the term “Affiliate” shall mean as defined in section 101(2) of the Bankruptcy Code and also includes any other entity that directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, such affiliate.
9. As used herein, the term “Managed Funds” means Highland Multi-Strategy Credit Fund, L.P., Highland Restoration Capital Partners, L.P., Highland Select Equity Fund, L.P., and any other investment vehicle managed by the Debtor.
10. As used herein, the term “Bankruptcy Case” shall mean and refer to the above-captioned chapter 11 case of Highland Capital Management, L.P.
11. As used herein, the term “Notes” shall mean and refer to the three promissory notes attached to the Complaint.
12. As used herein, the term “Debtor” or “Plaintiff” shall mean and refer to the Debtor in the above-captioned Bankruptcy Case and Plaintiff in the Adversary Proceeding, Highland Capital Management, L.P., and any of its respective agents and representatives or any person acting or purporting to act on its behalf.
13. As used herein, the terms “you” and “your” shall mean and refer to the Debtor in the above-captioned Bankruptcy Case, Highland Capital Management, L.P., and any of its respective agents and representatives or any person acting or purporting to act on its behalf.
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14. As used herein, “Person” shall mean and refer to any individual, partnership, corporation, trust, estate, cooperative, association, government, governmental subdivision, or agency, or entity.
15. As used herein, “Related Entity” shall mean and refer to (a) James Dondero, (b) any entity that was an insider of the Debtor on October 16, 2019 under Section 101(31) of the Bankruptcy Code, (c) any entity that was, at the time, controlled directly or indirectly by James Dondero, (d) The Dugaboy Investment Trust; (e) the Hunter Mountain Investment Trust and any of its direct or indirect parents, and (e) the Charitable Donor Advised Fund, L.P.
16. Unless otherwise specified, the applicable time period for these Discovery Requests shall be from January 1, 2017 to the present.
II. INSTRUCTIONS
1. If any communication or document required to be produced or identified in
response to these Requests for Production of Documents is claimed to be privileged, such
communication or document must be identified within a privilege log, which shall be produced
contemporaneously with the non-privileged documents responsive to these Requests, and which
privilege log shall identify each such communication or document, to the extent applicable, by
giving a description of such communication or document, the title, date of its creation, subject
matter, author, addressee, where it was made or created, persons to whom copies were furnished
and to whom the substance of the documents was communicated at any time after its creation,
and the ground(s) for the privilege claim.
2. Produce documents in the format described in Appendix A.
3. When producing documents pursuant hereto, copies may be produced in lieu of
originals. You are required to produce the documents as they are kept in the usual course of
business or to organize and label them to correspond with each category in these requests.
4. If any documents requested herein have been lost or destroyed, the documents so
lost or destroyed shall be identified by author, date, and subject matter. In addition, the date of
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disposal, the manner of disposal, the reason for disposal, the person authorizing disposal, and the
person disposing of the documents shall be identified.
5. If you believe that any of the following Requests are ambiguous, send a letter to
Defendant’s counsel specifying which Request is unclear to you and the basis of the perceived
ambiguity. We will respond promptly by letter and attempt to rephrase the Request for you.
III. DUTY TO SUPPLEMENT
Pursuant to Rule 26(e)(1) of the Federal Rules of Civil Procedure, you are requested to
timely supplement your responses to these discovery requests if you learn that a response is in
some material respect incorrect and if the additional or corrective material had not otherwise
been made known during the discovery process or in writing.
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IV. THIRD REQUEST FOR PRODUCTION OF DOCUMENTS
REQUEST FOR PRODUCTION NO. 28: Produce all documents showing the financial performance of the following entities for the period from January 1, 2018 to the present: (i) the Debtor; (ii) all of the Debtor’s Managed Funds; (iii) all of the Debtor’s subsidiaries, both direct and indirect majority-owned; (iv) all Affiliates of the Debtor; and (v) any other entity owned, controlled, and/or managed by the Debtor. RESPONSE: REQUEST FOR PRODUCTION NO. 29: Produce all financial statements for the following entities for the period from January 1, 2018 to the present: (i) the Debtor; (ii) all of the Debtor’s Managed Funds; (iii) all of the Debtor’s subsidiaries, both direct and indirect majority-owned; (iv) all Affiliates of the Debtor; and (v) any other entity owned, controlled, and/or managed by the Debtor. RESPONSE: REQUEST FOR PRODUCTION NO. 30: Produce all monthly balance sheets for the following entities for the period from January 1, 2018 to the present: (i) the Debtor; (ii) all of the Debtor’s Managed Funds; (iii) all of the Debtor’s subsidiaries, both direct and indirect majority-owned; (iv) all Affiliates of the Debtor; and (v) any other entity owned, controlled, and/or managed by the Debtor. RESPONSE: REQUEST FOR PRODUCTION NO. 31: Produce all internal monthly reporting packages for the following entities for the period from January 1, 2018 to the present: (i) the Debtor; (ii) all of the Debtor’s Managed Funds; (iii) all of the Debtor’s subsidiaries, both direct and indirect majority-owned; (iv) all Affiliates of the Debtor; and (v) any other entity owned, controlled, and/or managed by the Debtor. RESPONSE: REQUEST FOR PRODUCTION NO. 32: Produce all documents reflecting the assets under management for the following entities for the period from January 1, 2018 to the present: (i) the Debtor; (ii) all of the Debtor’s Managed Funds; (iii) all of the Debtor’s subsidiaries, both direct and indirect majority-owned; (iv) all Affiliates of the Debtor; and (v) any other entity owned, controlled, and/or managed by the Debtor. RESPONSE: REQUEST FOR PRODUCTION NO. 33: Produce all documents reflecting the investment results and/or performance for the following entities for the period from January 1, 2018 to the present: (i) the Debtor; (ii) all of the Debtor’s Managed Funds; (iii) all of the Debtor’s subsidiaries, both direct and indirect majority-owned; (iv) all Affiliates of the Debtor; and (v) any other entity owned, controlled, and/or managed by the Debtor.
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RESPONSE: REQUEST FOR PRODUCTION NO. 34: Produce all documents reflecting marketing materials for the following entities for the period from January 1, 2018 to the present: (i) the Debtor; (ii) all of the Debtor’s Managed Funds; (iii) all of the Debtor’s subsidiaries, both direct and indirect majority-owned; (iv) all Affiliates of the Debtor; and (v) any other entity owned, controlled, and/or managed by the Debtor. RESPONSE: REQUEST FOR PRODUCTION NO. 35: Produce all documents related to any employment and/or shareholder or partnership agreement between Dondero, on the one hand, and any of the following entities on the other hand, for the period from January 1, 2015 to the present: (i) the Debtor; (ii) all of the Debtor’s Managed Funds; (iii) all of the Debtor’s subsidiaries, both direct and indirect majority-owned; (iv) all Affiliates of the Debtor; (v) any other entity owned, controlled, and/or managed by the Debtor; and (vi) Strand Advisors, Inc. RESPONSE: REQUEST FOR PRODUCTION NO. 36: Produce all documents related to any compensation (including, without limitation, base salary, annual bonus, long-term incentives, equity distributions, equity interests, perks, long-term awards, loans, forgiveness of debt, or otherwise) received by Dondero from any of the following entities for the period from January 1, 2010 to the present: (i) the Debtor; (ii) all of the Debtor’s Managed Funds; (iii) all of the Debtor’s subsidiaries, both direct and indirect majority-owned; (iv) all Affiliates of the Debtor; (v) any other entity owned, controlled, and/or managed by the Debtor; and (vi) Strand Advisors, Inc. RESPONSE: REQUEST FOR PRODUCTION NO. 37: Produce all documents related to any compensation (including, without limitation, base salary, annual bonus, long-term incentives, equity distributions, equity interests, perks, long-term awards, loans, forgiveness of debt, or otherwise) received by any Related Entity for Dondero or on Dondero’s behalf, from any of the following entities for the period from January 1, 2010 to the present: (i) the Debtor; (ii) all of the Debtor’s Managed Funds; (iii) all of the Debtor’s subsidiaries, both direct and indirect majority-owned; (iv) all Affiliates of the Debtor; (v) any other entity owned, controlled, and/or managed by the Debtor; and (vi) Strand Advisors, Inc. RESPONSE: REQUEST FOR PRODUCTION NO. 38: Produce all documents reflecting and/or relating to any organizational charts for any of the following entities for the period from January 1, 2018 to the present: (i) the Debtor; (ii) all of the Debtor’s Managed Funds; (iii) all of the Debtor’s subsidiaries, both direct and indirect majority-owned; (iv) all Affiliates of the Debtor; (v) any other entity owned, controlled, and/or managed by the Debtor; and (vi) Strand Advisors, Inc. RESPONSE:
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REQUEST FOR PRODUCTION NO. 39: Produce all documents reflecting and/or relating to Dondero’s employment, investment, and/or managerial role(s) in any of the following entities for the period from January 1, 2018 to the present: (i) the Debtor; (ii) all of the Debtor’s Managed Funds; (iii) all of the Debtor’s subsidiaries, both direct and indirect majority-owned; (iv) all Affiliates of the Debtor; (v) any other entity owned, controlled, and/or managed by the Debtor; and (vi) Strand Advisors, Inc. RESPONSE:
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Appendix A
I. Document Production Format A. Electronically Stored Information (ESI) Electronically stored information will, except as provided in paragraph (a) and (b) below, be produced as single-page black and white TIFF images (300 d.p.i., CCITT Group IV (2D) Compression) together with a standard Concordance (.dat) and Opticon (.opt) load file, document level searchable text and the following fields of metadata, as applicable, or their functional equivalent:
● BegProd ● EndProd ● BegProdAttach ● EndProdAttach ● Image Count ● Email Subject ● File Name ● File Extension ● From ● To ● CC ● BCC ● Date Created ● Time Created ● Date Sent ● Time Sent ● Date Received ● Time Received ● Date Modified ● Time Modified ● MD5 Hash ● Author ● Redaction present ● Confidentiality designation • Custodian
(a) Spreadsheets and Audio/Video file. Spreadsheets and Audio/Video files will be produced in their native format, together with a placeholder image in TIFF format. The TIFF image placeholder will display the Bates number to be used for the native document and will also display confidentiality designation, if any, for the native document.
(b) Color. Documents containing color will be produced in 300 d.p.i. JPEG format.
(c) Databases. If the discovery calls for production of data stored in a database
(structured data), the parties will confer and make a good faith effort to agree on a report from the database reflecting the discoverable information.
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DEFENDANT JAMES DONDERO’S THIRD REQUEST FOR PRODUCTION OF DOCUMENTS TO HIGHLAND CAPITAL MANAGEMENT, L.P. PAGE 12 OF 12
(b) Embedded Documents. All non-graphic embedded objects (e.g., Word documents, Excel spreadsheets, .wav files, etc.) that are found within a file shall be extracted and produced. The embedded files will be treated as attachments to the original file, with the parent/child relationship preserved.
(c) Numbering and Other Branding. The TIFF images will have sequential and unique Bates numbers and, where applicable, branding for confidentiality on each of the TIFF images.
B. Paper Information that is maintained in paper format shall scanned and produced as single page black and white TIFF images (300 d.p.i., CCITT Group IV (2D) Compression) with a standard Concordance load file, and associated searchable text (OCR). The paper documents will be unitized in the load file in a manner that maintains the documents and any attachments as they are maintained in the usual course of business. TIFF images will include unique sequential Bates numbers and any confidentiality or other branding.
Paper documents that contain Post It Notes or their equivalent will be scanned with the notes affixed if this can be done without obstructing other content on the document. If the content of the document is obscured by the affixed note, the document and note will be scanned separately, and the note treated as an attachment.
II. Production Media. Document productions will be made via secure FTP, or on encrypted physical media appropriate to the size of the production. When produced on encrypted physical media, the face of the production media will state: (i) the case name and number; (ii) the producing party’s name; (iii) the production date; (iv) confidentiality notation where appropriate; and (v) the Bates number range for documents contained on the production media. The producing party will separately provide explanation of how to decrypt the files.
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From: John A. Morris Sent: Wednesday, July 21, 2021 7:26 AM To: 'Aigen, Michael P.' <[email protected]> Cc: Jeff Pomerantz <[email protected]>; Gregory V. Demo <[email protected]>; Hayley R. Winograd <[email protected]>; Deitsch‐Perez, Deborah R. <[email protected]>; Rukavina, Davor ([email protected]) <[email protected]>; Lauren Drawhorn ([email protected]) <[email protected]>; Vasek, Julian ([email protected]) <[email protected]>; Jason Rudd <[email protected]>; Clay Taylor ([email protected]) <[email protected]>; Bryan Assink ([email protected]) <[email protected]> Subject: RE: Highland: Scheduling and Related Issues for the Notes Litigation
Thank you, Michael.
As discussed, the Stipulation should cross‐reference the other adversary proceedings and note that they are being consolidated for pre‐trial purposes so that its clear each deposition, for example, can be used in each AP.
Subject to our review of your draft Stipulation, the approach set forth below is fine.
Thanks.
John
John A. Morris Pachulski Stang Ziehl & Jones LLP Direct Dial: 212.561.7760 Tel: 212.561.7700 | Fax: 212.561.7777 [email protected] vCard | Bio | LinkedIn
Los Angeles | San Francisco | Wilmington, DE | New York | Houston
From: Aigen, Michael P. [mailto:[email protected]] Sent: Tuesday, July 20, 2021 10:17 AM To: John A. Morris Cc: Jeff Pomerantz; Gregory V. Demo; Hayley R. Winograd; Deitsch-Perez, Deborah R.; Rukavina, Davor ([email protected]); Lauren Drawhorn ([email protected]); Vasek, Julian ([email protected]); Jason Rudd; Clay Taylor ([email protected]); Bryan Assink ([email protected]) Subject: RE: Highland: Scheduling and Related Issues for the Notes Litigation
John,
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I discussed with our side. Does the following work? 1. 10/8 for end of fact discovery; 10/15 for expert designations; 10/15‐10/26 for expert depositions? 2. We are okay with an unopposed motion to amend with respect to your amended complaints. And we will have until 8/2 to answer or otherwise respond to the amended complaints. (I know we originally discussed 7/30, but we have some scheduling conflicts, so we would like to move that deadline from Friday to the next Monday, if possible.) 4. As discussed, we agree that we can have separate stipulations in each adversary proceeding to document what we agreed to. I will draft one for the Dondero adversary proceeding and once we all sign off on it, we can create stipulations for the other proceedings. If all this is agreeable, let me know and I will start drafting the stipulation. Michael
Michael P. Aigen Partner STINSON LLP 3102 Oak Lawn Avenue, Suite 777 Dallas, TX 75219 Direct: 214.560.2201 \ Bio STINSON.COM From: John A. Morris <[email protected]> Sent: Friday, July 16, 2021 4:05 PM To: Aigen, Michael P. <[email protected]> Cc: Jeff Pomerantz <[email protected]>; Gregory V. Demo <[email protected]>; Hayley R. Winograd <[email protected]>; Deitsch‐Perez, Deborah R. <[email protected]>; Rukavina, Davor ([email protected]) <[email protected]>; Lauren Drawhorn ([email protected]) <[email protected]>; Vasek, Julian ([email protected]) <[email protected]>; Jason Rudd <[email protected]>; Clay Taylor ([email protected]) <[email protected]>; Bryan Assink ([email protected]) <[email protected]> Subject: RE: Highland: Scheduling and Related Issues for the Notes Litigation Michael:
1. What’s a preliminary motion? I don’t understand the first point. 2. Let’s discuss what additional expert you’re thinking of on Monday because I don’t see it.
Can we speak at 4 or 5 pm eastern on Monday? Can we agree that everything else is a go, and that these are the only two issues to address? If so, we will also put together amended scheduling orders for your review. Thank you for your cooperation. Regards, John
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John A. Morris Pachulski Stang Ziehl & Jones LLP Direct Dial: 212.561.7760 Tel: 212.561.7700 | Fax: 212.561.7777 [email protected] vCard | Bio | LinkedIn
Los Angeles | San Francisco | Wilmington, DE | New York | Houston
From: Aigen, Michael P. [mailto:[email protected]] Sent: Thursday, July 15, 2021 4:45 PM To: John A. Morris Cc: Jeff Pomerantz; Gregory V. Demo; Hayley R. Winograd; Deitsch-Perez, Deborah R.; Rukavina, Davor ([email protected]); Lauren Drawhorn ([email protected]); Vasek, Julian ([email protected]); Jason Rudd; Clay Taylor ([email protected]); Bryan Assink ([email protected]) Subject: RE: Highland: Scheduling and Related Issues for the Notes Litigation John, Thank you for your proposal. I think we are generally in agreement, however, a couple of things: 1. The July 30 answer date should also be a deadline for us to otherwise respond to the extent that we choose to file any preliminary motions. To the extent there is a stay in any case (with regards to things other than discovery), the Debtor's time to respond would run from the end of the stay. 2. We do believe that we will need to designate at least one additional expert based on the new allegations and assertions made in hearings. Therefore, we would like a short period to designate experts after fact discovery is completed on October 8. We can shorten that time period a bit if you think it is necessary. Thanks, Michael
Michael P. Aigen Partner STINSON LLP 3102 Oak Lawn Avenue, Suite 777 Dallas, TX 75219 Direct: 214.560.2201 \ Bio STINSON.COM From: John A. Morris <[email protected]> Sent: Tuesday, July 13, 2021 12:33 PM To: Aigen, Michael P. <[email protected]> Cc: Jeff Pomerantz <[email protected]>; Gregory V. Demo <[email protected]>; Hayley R. Winograd <[email protected]>; Deitsch‐Perez, Deborah R. <[email protected]>; Rukavina, Davor ([email protected]) <[email protected]>; Lauren Drawhorn ([email protected]) <[email protected]>; Vasek, Julian ([email protected]) <[email protected]>; Jason Rudd <[email protected]>; Clay Taylor ([email protected]) <[email protected]>; Bryan Assink
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([email protected]) <[email protected]> Subject: FW: Highland: Scheduling and Related Issues for the Notes Litigation Michael: I will send all of the Amended Complaints later today, but they all track the substance of what I sent last week (except for HCMFA since that defendant is not asserting the “conditions subsequent” defense). I appreciate your taking the time to provide the fulsome response below, but the Debtor believes the time periods are needlessly prolonged. Given the commonality of the issues, and the fact that a lot of the written discovery is complete, we’re prepared to compromise as follows: July 30 Deadline for defendants to serve Amended Answers with respect to the new allegations and claims August 9 Deadline to serve written discovery demands (Dondero limited to new allegations and claims) Sept. 3 Deadline to serve written responses to discovery demands and for all parties to be “substantially complete”
with document production 9/20‐10/8 Depositions Oct. 8 End of discovery (fact and expert) We see no reason to have a separate period for expert discovery. We have the two reports, neither of which were based in
any way on the underlying facts concerning the “conditions subsequent.” If the Defendants continue to believe we need a separate period for some reason, please let me know and we can discuss.
Otherwise, please let us know if this compromise is acceptable. Regards, John
John A. Morris Pachulski Stang Ziehl & Jones LLP Direct Dial: 212.561.7760 Tel: 212.561.7700 | Fax: 212.561.7777 [email protected] vCard | Bio | LinkedIn
Los Angeles | San Francisco | Wilmington, DE | New York | Houston
From: Aigen, Michael P. [mailto:[email protected]] Sent: Friday, July 09, 2021 3:31 PM To: John A. Morris Cc: Jeff Pomerantz; Gregory V. Demo; Hayley R. Winograd; Deitsch-Perez, Deborah R.; Rukavina, Davor
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([email protected]); Vasek, Julian ([email protected]); Lauren Drawhorn ([email protected]); Jason Rudd; Clay Taylor ([email protected]); Bryan Assink ([email protected]) Subject: RE: Highland: Scheduling and Related Issues for the Notes Litigation John, Thank you for your proposal. We collectively respond, as follows: 1. We will accept service of the amended complaint in adversary proceeding no. 21‐3003, including the new claims against new parties (Nancy Dondero and the Dugaboy Investment Trust); if there are other cases in which you are adding parties, please send those so we can look at them before seeking permission to accept service; 2. We propose July 30 instead of July 23 as the deadline for defendants to answer or otherwise move against the amended complaints, but that assumes you provide by Monday any other amended complaints you intend to serve; 3. As a result, we propose August 13 as the deadline for written discovery instead of July 30. We are not sure what "Dondero limited to new allegations and claims" means. But we agree that all new written discovery propounded by any party should be limited to new allegations, claims and defenses; 4. We proposes that the deadline for responding to discovery and document production should be substantially complete by September 6, instead of August 23; 5. Depositions: We think we need to broaden this window. We have several lawyers that are on vacation throughout August and the beginning of September. Therefore, we would suggest a deposition window of 8/30 to 10/22, which means we would have a 10/22 deadline for all discovery; and 6. Experts: We think a new expert designation deadline is needed. With the above deadlines, we suggest a deadline of 11/5, which is a couple of weeks after fact discovery is completed, and then expert depositions can occur within 3 weeks after experts are disclosed. I would note that we are still waiting to hear from a couple of the lawyers on our side that the exact dates above work for them. I suspect that everyone on our side will be fine with these, but I know you wanted a response by today so we are providing this with the caveat that it is possible that one of the lawyers on our side may need to make some adjustments to the above. Thanks, Mike
Michael P. Aigen Partner STINSON LLP 3102 Oak Lawn Avenue, Suite 777 Dallas, TX 75219 Direct: 214.560.2201 \ Bio STINSON.COM From: John A. Morris <[email protected]> Sent: Tuesday, July 6, 2021 11:36 AM To: Aigen, Michael P. <[email protected]> Cc: Jeff Pomerantz <[email protected]>; Gregory V. Demo <[email protected]>; Hayley R. Winograd <[email protected]>; Deitsch‐Perez, Deborah R. <[email protected]>; Rukavina, Davor ([email protected]) <[email protected]>; Vasek, Julian ([email protected]) <[email protected]>; Lauren
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Drawhorn ([email protected]) <[email protected]>; Jason Rudd <[email protected]>; Clay Taylor ([email protected]) <[email protected]>; Bryan Assink ([email protected]) <[email protected]> Subject: RE: Highland: Scheduling and Related Issues for the Notes Litigation Michael: As you requested, attached is the Debtor’s proposed Amended Complaint against Mr. Dondero in the notes litigation. For your convenience, we have run a black‐line against the “as filed” original complaint. We intend to copy and paste the new allegations and claims in Amended Complaints against NPA, HCRE, and HCM Services. Please let us know by the end of the week if those defendants will consent to the service and filing of the Amended Complaints. Davor, my understanding is that HCMFA is not asserting the “conditions subsequent” defense, but please confirm. If that is the case, I will contact you directly about amending the Complaint against HCMFA separately. To take into account the passage of time, and upon further consideration, and assuming that the defendants will consent to the service of the Amended Complaints by Friday, we propose the following schedule which will apply to all five adversary proceedings: July 23 Deadline for defendants to serve Amended Answers with respect to the new allegations and claims July 30 Deadline to serve written discovery demands (Dondero limited to new allegations and claims) August 23 Deadline to serve written responses to discovery demands and for all parties to be “substantially complete”
with document production 8/30‐9/23 Depositions Sept. 23 End of discovery (fact and expert) I have availability later today and tomorrow to discuss these matters if that would be more efficient. Regards, John
John A. Morris Pachulski Stang Ziehl & Jones LLP Direct Dial: 212.561.7760 Tel: 212.561.7700 | Fax: 212.561.7777 [email protected] vCard | Bio | LinkedIn
Los Angeles | San Francisco | Wilmington, DE | New York | Houston
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From: Aigen, Michael P. [mailto:[email protected]] Sent: Wednesday, June 23, 2021 9:53 AM To: John A. Morris Cc: Jeff Pomerantz; Gregory V. Demo; Hayley R. Winograd; Deitsch-Perez, Deborah R.; Rukavina, Davor ([email protected]); Vasek, Julian ([email protected]); Lauren Drawhorn ([email protected]); Jason Rudd; Clay Taylor ([email protected]); Bryan Assink ([email protected]) Subject: RE: Highland: Scheduling and Related Issues for the Notes Litigation John, Thank you for your proposal. We would need to see the amended complaints to know for sure what we will be litigating and what we could agree to do. You mentioned previously that you would send us the amended complaints prior to filing. When would you be able to send us them so we can review and let you know if we can agree to the below? Thanks, Michael
Michael P. Aigen Partner STINSON LLP 3102 Oak Lawn Avenue, Suite 777 Dallas, TX 75219 Direct: 214.560.2201 \ Bio STINSON.COM This communication (including any attachments) is from a law firm and may contain confidential and/or privileged information. If it has been sent to you in error, please contact the sender for instructions concerning return or destruction, and do not use or disclose the contents to others.
From: John A. Morris <[email protected]> Sent: Wednesday, June 23, 2021 3:51 AM To: Aigen, Michael P. <[email protected]> Cc: Jeff Pomerantz <[email protected]>; Gregory V. Demo <[email protected]>; Hayley R. Winograd <[email protected]>; Deitsch‐Perez, Deborah R. <[email protected]>; Rukavina, Davor ([email protected]) <[email protected]>; Vasek, Julian ([email protected]) <[email protected]>; Lauren Drawhorn ([email protected]) <[email protected]>; Jason Rudd <[email protected]>; Clay Taylor ([email protected]) <[email protected]>; Bryan Assink ([email protected]) <[email protected]> Subject: Highland: Scheduling and Related Issues for the Notes Litigation
External Email – Use Caution
Michael: With respect to the notes litigations, the Debtor offers the following thoughts and proposal. Please confirm the following are all of the witnesses in these matters, and that each will testify one time for the APs noted:
o James Dondero (for all cases, except his own, where he has already testified) o Nancy Dondero (all cases, except HCMFA) o DC Sauter (all cases, except Dondero) o Waterhouse (all cases) o McGovern (expert, all cases except HCMFA) o Johnson (expert, all cases except HCMFA)
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o Defendants’ Rule 30(b)(6) witness(es) (all cases, except Dondero) o Debtor’s Rule 30(b)(6) witness (all cases, except Dondero’s inquiry limited to new claims)
With this in mind, please considering the following schedule: June 30 Deadline for Debtor to file and serve Amended Complaints July 7 Deadline to serve written discovery demands (Dondero limited to new claims) July 30 Deadline (a) for all parties to serve written responses to discovery demands, and (b) for defendants to
serve amended answers limited to responding to new claims August 2 Deadline to complete document production September 2 Discovery deadline (fact and expert) All depositions would be between August 2 and September 2. Let me know if this is acceptable or if you’d like to discuss. Regards, John
John A. Morris Pachulski Stang Ziehl & Jones LLP Direct Dial: 212.561.7760 Tel: 212.561.7700 | Fax: 212.561.7777 [email protected] vCard | Bio | LinkedIn
Los Angeles | San Francisco | Wilmington, DE | New York | Houston
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