IN THE UNITED STATES BANKRUPTCY COURT FOR THE WESTERN DISTRICT OF NORTH CAROLINA Charlotte Division

Transcription

1 IN THE UNITED STATES BANKRUPTCY COURT FOR THE WESTERN DISTRICT OF NORTH CAROLINA Charlotte Division In re: TSI Holdings, LLC 1 et al., DEBTORS. CASE NO CHAPTER 7 Jointly Administered TRUSTEE S FIRST REQUEST FOR PRODUCTION OF DOCUMENTS FROM STONE STREET PARTNERS, LLC RELATING TO TRUSTEE S FIRST OMNIBUS REPORT OF CLAIMS, OBJECTIONS TO CLAIMS, AND RECOMMENDATIONS REGARDING CLAIMS AS TO TSI HOLDINGS, LLC, WSC HOLDINGS, LLC, SOUTHPARK PARTNERS, LLC, AND SHARON ROAD PROPERTIES, LLC Pursuant to Rules 26 and 34 of the Federal Rules of Civil Procedure (the Federal Rules ), as made applicable hereto by Rules 9014, 7026, and 7034 of the Federal Rules of Bankruptcy Procedure (the Bankruptcy Rules ), Joseph W. Grier, III, the duly appointed chapter 7 bankruptcy trustee in the above-captioned, jointly-administered bankruptcy cases (the Trustee ), by and through counsel, hereby requests that Stone Street Partners, LLC f/k/a Siskey Capital, LLC ( Stone Street ) produce the following documents, to the extent said documents are within Stone Street s possession, custody, or control, for inspection and copying/photocopying by or on behalf of the Trustee. The documents requested herein shall be produced on or before April 16, The location at which production shall be made is: Grier Furr & Crisp, PA, 101 N. Tryon Street, Suite 1240, Charlotte, North Carolina 28246, 704/ (fax), mmartinez@grierlaw.com ( ). DEFINITIONS 1. Document is defined to be synonymous in meaning and equal in scope to the 1 These jointly administered cases are those of the following debtors: TSI Holdings, LLC, Case No , WSC Holdings, LLC Case No , SouthPark Partners, LLC Case No and Sharon Road Properties, LLC Case No

2 usage of the term in Federal Rule 34(a). Not by way of limitation, but instead as example, this means all written or drafted matter of every kind and description, however produced or reproduced, however described, whether related to fact, opinion, event, recollection, or intention, whether in draft or final form, original or reproduction, or recorded or stored on computer diskettes or hard drives, including any papers, writings, mechanical or electronic recordings or records, contracts, agreements, understandings, applications, financial statements, pay stubs, checks, invoices, purchase orders, minutes, memoranda, notes, records, interoffice communications, tape or other recordings, microfilm, microfiche, telegrams, letters, photographs, films, notes (handwritten or otherwise), recorded recollections, transcripts, drawings, specifications, data, reports, printed matters, publications, books, news releases, advertisements, bulletins, circulars, computer discs, computer tapes, computer files, offers, binders, proposals, statements, lists, books of account, accounting records, audit reports, studies, working paper, credit applications, licenses, prospectuses, appointment books, diaries, time sheets, logs, in your possession, your custody or under your control or of which you have knowledge, wherever located, whether an original or a copy. Any copy contained thereon or attached thereto, any alterations, notes, comments, or other material not included in the originals or copies referred to in the preceding sentence, shall be deemed a separate document within the foregoing definition. Summaries prepared for trial will not suffice. 2. You, your, and yourself refers to Stone Street and any person acting or purporting to act on behalf, or under the direction, of Stone Street. 3. Person is defined to include natural persons, firms, partnerships, associations, joint ventures, corporations, proprietorships, trusts, limited liability companies, governmental agencies, and any other type of organization or legal entity. 2

3 4. Concerning and relating to means concerning, relating to, referring to, consisting of, describing, discussing, containing, reflecting, mentioning, pertaining to, citing, summarizing, analyzing, evidencing, constituting or bearing any logical or factual connection with the matter discussed, whether directly or indirectly. 5. Explain and describe mean to set forth all facts in the person s possession or control sufficient to fully exhaust the person s information, knowledge or belief with respect to the subject matter of the inquiry presented in each request. 6. Communication means any transmission of information, the information transmitted, and any process by which information is transmitted, including both written communications and oral communications. Not by way of limitation, but instead as example, this means all statements, discussions, conversations, speeches, meetings, remarks, questions, answers, panel discussion, symposium, face-to-face communications and communications transmitted by media such as intercom, radio, telephone, facsimile, television, or internet. 7. Identify when referring: a. to a natural person, means to state his or her full name and present or last known business and residential addresses and telephone number(s); b. to a person other than a natural person, means to state its full name, present or last known pertinent business address and telephone number(s); c. to any type of statement or communication, means (i) to identify who made it, who took or recorded it, and all others, if any, present during the making thereof; (ii) to state when, where and how it was taken or recorded, and to identify who has present or last known possession, custody, or control thereof; and (iii) to summarize the subject matter of the statement or communication; and 3

4 d. to any other document or tangible thing, means (i) to give a reasonably detailed description thereof, including, if applicable, when, where, and how it was made; (ii) to identify who made it; (iii) to identify who has present or last known possession, custody or control thereof; and (iv) to identify any and all persons who have or, at any point, had possession thereof. 8. Including means including without limitation. 9. Bankruptcy Court means the United States Bankruptcy Court for the Western District of North Carolina. 10. Bankruptcy Case refers jointly and severally to the Debtors jointlyadministered bankruptcy cases, initiated by the filing of involuntary petitions on January 27, 2017 (TSI), March 3, 2017 (SPP and WSC), and March 9, 2017 (SRP), currently pending before the Bankruptcy Court as case number Complaint means the Complaint filed by You on August 22, 2017 and that is attached as Exhibit A to the proofs of claim you filed in the Bankruptcy Case, as amended. 12. Covered Entities refers, jointly and severally, to Stone Street, CPREI, CPTI, SCOFII, and CPTI. 13. CPREI means Carolina Preferred Real Estate Investments, LLC. 14. CPTI means Carolina Preferred Technology Investments, LLC. 15. Debtors refers jointly and severally to TSI, WSC, SPP, and SRP. 16. SCOFII means Stone Street Opportunity Fund II, LLC f/k/a Siskey Capital Opportunity Fund II, LLC. 17. Siskey refers collectively to the late Richard Rick Christopher Siskey Sr. and Siskey s agents, employees, representatives, attorneys, and other persons acting or purporting to 4

5 act on Siskey s behalf. 18. SPP refers collectively to SouthPark Partners, LLC and SPP s officers, managers, members, directors, agents, employees, representatives, attorneys, and other persons acting or purporting to act on SPP s behalf. 19. SRP refers collectively to Sharon Road Properties, LLC and SRP s officers, managers, members, directors, agents, employees, representatives, attorneys, and other persons acting or purporting to act on SRP s behalf. 20. TSI refers collectively to TSI Holdings, LLC and TSI s officers, managers, members, directors, agents, employees, representatives, attorneys, and other persons acting or purporting to act on TSI s behalf. 21. WSC refers collectively to WSC Holdings, LLC and WSC s officers, managers, members, directors, agents, employees, representatives, attorneys, and other persons acting or purporting to act on WSC s behalf. INTERPRETATION AND CONSTRUCTION 1. The use of the singular form of any word includes the plural and vice versa. 2. Pronouns stated in the masculine, feminine or neuter gender shall include the masculine, feminine and neuter. 3. The use of any particular tense in an inquiry includes all other tenses. 4. The term any means and shall be construed as each and every as necessary to make the request inclusive rather than exclusive. 5. The terms and and or shall be construed either disjunctively or conjunctively as necessary to bring within the scope of the discovery request all responses that might otherwise be construed to be outside of its scope. 5

6 6. The terms all and each shall be construed as all and each. INSTRUCTIONS 1. These instructions and definitions should be construed to require answers based upon the knowledge of, and information available to, you as well as your agents or representatives. 2. These discovery requests are continuing in character, and you are required to serve supplemental answers if further or different information is obtained with respect to any interrogatory, request for production of documents or request for admission such that your prior response is in some material respect incomplete or incorrect. 3. No part of an interrogatory, request for production of documents or request for admission should be left unanswered merely because an objection is interposed to another part of the interrogatory, request for production of documents or request for admission. If a partial or incomplete answer is provided, you shall state that the answer is partial or incomplete. 4. In producing documents, you are requested to furnish all documents known or available to you regardless of whether these documents are possessed directly by you, or are in custody or control of you or your agents, employees, representatives or investigators. 5. If you elect to specify and produce business records in answer to any interrogatory, the specification shall be in sufficient detail to permit Trustee to locate and identify, as readily as you can, the business records from which they answer may be ascertained. 6. If, in answering these discovery requests, you encounter any ambiguities when construing a question, instruction, or definition, your answer shall set forth the matter deemed ambiguous and the construction used in answering. 7. If you object to any requests for production, in whole or in part, you must furnish 6

7 a numerical list and brief description of the specific objection type and subject matter of each such document with respect to which the objection is made, indicating the ground for the objection asserted with citation to any authority alleged to support such objection. 8. If, in responding to any discovery request, you deem that the information called for is privileged, please identify the following information when asserting that objection: a. The person or document to which any objection is taken. With respect to documents, please identify the author (and any other persons involved in the preparation of the document), the date on which it was prepared and the factual and legal basis of the claim of privilege. With respect to any person, please identify the person and any relevant date upon which any identified communication took place. b. With respect to any document to which a claim of privilege is attached, please produce a privilege log as to each such document, identifying (i) the author, (ii) the date upon which the document was prepared or identified, (iii) the person presently having custody of such document, (iv) the purpose or reason such document was prepared or identified, (v) the subject matter (without revealing the relevant information for which privilege is claimed); (vi) each person to whom the contents of the document have heretofore been communicated and the date such communication took place; and (vii) the factual and legal basis of the claim of privilege. 9. Documents produced in response to these requests shall be produced in the order in which they are kept in the usual course of business, with all identifying folders, file labels and file drawer or box labels intact. In addition, the identity of the person from whose files each document was produced shall also be given. 10. To the extent that you have in your possession, custody or control more than one 7

8 copy of any particular responsive document, you shall produce each and every copy thereof. 11. These discovery requests shall be responded to without regard to the admissibility of such responses in a court of law. 12. Where exact information cannot be furnished, estimated information is to be supplied to the extent possible. Where estimation is used, it should be so indicated, and an explanation should accompany the estimation as to the basis on which the estimate was made and the reason exact information cannot be furnished. 13. With respect to any document requested which was once in your possession, custody or control, but is no longer, please identify (a) the date the document ceased to be in your possession, custody or control, (b) the manner in which it ceased to be in your possession, custody or control, and (c) its present custodian. REQUEST FOR PRODUCTION 1. Copies of all Documents evidencing money invested in, or funds otherwise transferred to, entities affiliated with Siskey, including the Debtors, on Your behalf. 2. Copies of all Documents evidencing a return on investment to You, or funds otherwise transferred to You, from entities affiliated with Siskey, including the Debtors. 8

9 3. Copies of any and all recorded Communications between You and Siskey relating to the Debtors or the Debtors businesses or financial affairs from January 1, 2010 through December 28, Copies of any and all recorded Communications between You and Diane M. Siskey, Denise B. Rhodes, or Benjamin Lowder relating to the Debtors or the Debtors businesses or financial affairs from January 1, 2010 through January 27, Copies of all Documents supporting Your assertion that the Debtors were instrumentalities utilized by Richard C. Siskey to perpetuate the fraud that has directly, proximately and foreseeably damaged You. 6. Copies of all contracts between You and any of the Debtors. 9

10 7. Copies of all Documents supporting Your assertion that the Debtors are liable to You for negligence, breach of fiduciary duty(ies), constructive fraud, breach of contract, or interference with Your economic relationships. 8. Copies of all Documents evidencing Your assertion that the Debtors are liable to You in the amount of $17,383,847.00, including, without limitation, any business valuation reports, appraisal reports, expert opinion reports, or similar reports, and all Documents provided to the preparer of any and all such reports. 9. Copies of all of United States and State income tax returns for the past five (5) years including, without limitation, all forms, statements, attachments, and depreciation schedules for each of the Covered Entities. 10. Copies of all financial statements prepared for each of the Covered Entities within the past five (5) years, including, without limitation, internal financial statements, compilations, reviews, and/or audited financial statements. 10

11 11. Copies of all electronic account records for each of the Covered Entities. If in a Quickbooks format, then please provide a backup of all date files (not a portable file). If in a Peachtree/Sage format, then please provide a complete backup of all data files and the year/version of the software used. If in some other format, then please provide the name of the software, the year/version of the software uses, and any other identifiable information (a site visit by the Trustee s accountants might be necessary). 12. Copies of all written accounting policies for each of the Covered Entities. 13. Copies of all payroll records for the past five (5) years for each of the Covered Entities. 14. Copies of all projected and pro-forma financial statements created for the past three (3) years for each of the Covered Entities. 11

12 15. Copies of all budgets, business plans, and forecasts prepared for the past five (5) years for each of the Covered Entities. 16. Copies of all budgets, business plans, and forecasts prepared for the next three (3) years for each of the Covered Entities. 17. Copies of all operating agreements, including any amendments thereto or restatements thereof, for each of the Covered Entities. 18. Copies of all minutes from any and all meetings of each of the Covered Entities members, managers, officers, or board of directors for the past five (5) years. 19. Copies of all Documents evidencing any and all purchases of interests in each of the Covered Entities. 12

13 20. Copies of any business valuations performed for each of the Covered Entities in the past five (5) years. 21. Copies of all regulatory filings made by each of the Covered Entities in the past five (5) years. 22. Copies of all employment contracts, management contracts, or similar contracts entered into by You and any other party(ies). 23. Copies of all client lists, investor lists, or other similar customer lists. 24. To the extent not responsive to any of the foregoing requests, copies of all Documents supporting the allegations made in the Complaint. 13

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