Exhibit D
SUPREME COURT FOR THE STATE OF NEW YORK NEW YORK COUNTY ----------------------------------------------------------------- MAARTEN DE JONG, -against- WILCO FAESSEN, Plaintiff, Defendant. ----------------------------------------------------------------- x x Index No. 655478/2016 WILCO FAESSEN S RESPONSES AND OBJECTIONS TO PLAINTIFF S FIRST REQUEST FOR THE PRODUCTION OF DOCUMENTS Pursuant to Article 31 of the New York Civil Practice Law and Rules, Defendant Wilco Faessen ( Faessen ) hereby responds to Plaintiff Martin de Jong s ( de Jong ) First Request for the Production of Documents (the Request ) in the above-captioned matter. GENERAL OBJECTIONS 1. Faessen s specific objections to each request are in addition to the general objections set forth in this section. These general objections form a part of the response to each request and are set forth here to avoid the duplication and repetition of restating them for each response. The absence of a reference to a general objection should not be construed as a waiver of the general objection as to the specific request. 2. Faessen objects to the Request to the extent that it purports to impose on Faessen obligations beyond those imposed by the New York Civil Practice Law and Rules, the Rules of the Commercial Division of the Supreme Court, or the rules and orders of the Court.
3. Faessen objects to the Request to the extent that it seeks information already available to de Jong, available from public, court, or agency records, or otherwise in the public domain and accessible to all parties. 4. Faessen objects to the Request to the extent that it seeks documents that are not within Faessen s possession, control or custody. 5. Faessen objects to the Request to the extent that it seeks identification and disclosure of information that is neither relevant to the subject matter of this action nor reasonably calculated to lead to the discovery of admissible evidence. 6. Faessen objects to the Request to the extent that it is lacking in specificity, overbroad and/or unduly burdensome. 7. Faessen objects to the Request to the extent that it is unreasonably cumulative and duplicative. 8. Faessen objects to the Request to the extent that it purports to require identification and disclosure of documents and information that were prepared in anticipation of litigation, constitute attorney work product, disclosure, mental impressions, conclusions, opinions or legal theories of any attorney for or other representative of Faessen, contain privileged attorney-client communications, or are otherwise protected from disclosure under applicable privileges, laws or rules. Faessen hereby claims such privileges and protections to the extent implicated by each Request and excludes privileged and protected information from its responses to the Request. 9. Inadvertent production of any document which is privileged shall not constitute waiver of any privilege or of any other ground for objection to discovery of such document, the 2
information contained therein, or the subject matter thereof, or of Faessen s right to object to the use of such document or the information contained therein. 10. Insofar as Faessen has responded to a request to which he has objected, Faessen reserves the right to maintain such objection and such objection is not waived in any respect by the provision of a response. 11. These responses to the Request shall not be construed in any way as an admission that any definition or assertion of fact provided therein is either factually correct or legally binding upon Faessen, or as a waiver of any of Faessen s objections, including but not limited to, objections regarding discoverability and admissibility of documents or other evidence. 12. Faessen reserves the right to supplement these responses pursuant to the Civil Practice Law and Rules, the Rules of the Commercial Division of the Supreme Court, and/or the rules and orders of the Court. SPECIFIC RESPONSES AND OBJECTIONS REQUEST NO. 1 All documents or communications relating to any allegations or claims in the Complaint. RESPONSE TO REQUEST NO. 1 Faessen objects to this request on the grounds that it is lacking in specificity, overbroad and unduly burdensome. Faessen further objects to this request to the extent that it is unreasonably cumulative and duplicative of other requests. REQUEST NO. 2 All documents or communications relating to de Jong. 3
RESPONSE TO REQUEST NO. 2 Faessen objects to this request on the grounds that it seeks identification and disclosure of information that is neither relevant to the subject matter of this action nor reasonably calculated to lead to the discovery of admissible evidence. Faessen further objects to this request on the grounds that it is lacking in specificity, overbroad and unduly burdensome. Faessen further objects to this request to the extent that it is unreasonably cumulative and duplicative of other requests. Subject to these objections and the General Objections, Faessen will produce all nonprivileged, responsive documents, if any, relating to the agreement between de Jong and Faessen alleged in the Complaint and to de Jong s investments in GoAmericaGo and WhistlePig that Faessen has located through a reasonable and diligent search. REQUEST NO. 3 All documents or communications relating to GoAmericaGo, including but not limited to any operating agreements, amended operating agreements, financial statements, statements of shareholder equity, or any other document setting forth the rights, obligations, and duties of any members, managing members, investors, or any other party with any interest in GoAmericaGo. RESPONSE TO REQUEST NO. 3 Faessen objects to this request on the grounds that it seeks identification and disclosure of information that is neither relevant to the subject matter of this action nor reasonably calculated to lead to the discovery of admissible evidence. Faessen further objects to this request to the extent that it is lacking in specificity, overbroad and unduly burdensome. REQUEST NO. 4 All documents or communications relating to WhistlePig, including but not limited to any operating agreements, amended operating agreements, financial statements, statements of shareholder equity, or any other document setting forth the rights, obligations, and duties of any members, managing members, investors, or any other party with any interest in GoAmericaGo [sic]. 4
RESPONSE TO REQUEST NO. 4 Faessen objects to this request on the grounds that it seeks identification and disclosure of information that is neither relevant to the subject matter of this action nor reasonably calculated to lead to the discovery of admissible evidence. Faessen further objects to this request to the extent that it is lacking in specificity, overbroad and unduly burdensome. REQUEST NO. 5 All documents or communications relating to the business relationship between Faessen and Bhakta, including any documents or communications prior to January 1, 2008 relating to the business relationship between these parties. RESPONSE TO REQUEST NO. 5 Faessen objects to this request on the grounds that the term business relationship is vague and ambiguous. Faessen further objects to this request on the grounds that it seeks identification and disclosure of information that is neither relevant to the subject matter of this action nor reasonably calculated to lead to the discovery of admissible evidence. Faessen further objects to this request to the extent that it is lacking in specificity, overbroad and unduly burdensome. REQUEST NO. 6 All documents or communications relating the Agreement. RESPONSE TO REQUEST NO. 6 REQUEST NO. 7 All documents or communications relating to any subsequent modifications, whether oral or written, to the Agreement. 5
RESPONSE TO REQUEST NO. 7 REQUEST NO. 8 All documents or communications regarding any agreement between Faessen and de Jong regarding Faessen or de Jong s investments in WhistlePig or GoAmericaGo. RESPONSE TO REQUEST NO. 8 REQUEST NO. 9 All communications between de Jong and Faessen regarding any investment, conversion, or any other action taken by de Jong or Faessen with regards to the entities GoAmericaGo, WhistlePig, or any other spirit-related venture created by Bhakta. RESPONSE TO REQUEST NO. 9 REQUEST NO. 10 All documents or communications relating to Faessen s investments in GoAmericaGo. RESPONSE TO REQUEST NO. 10 Faessen objects to this request to the extent that it is lacking in specificity, overbroad and unduly burdensome. Subject to this objection and the General Objections, Faessen will produce all non-privileged, responsive documents, if any, relating to the terms, amount and timing of his investments in GoAmericaGo that he has located through a reasonable and diligent search. 6
REQUEST NO. 11 All documents or communications relating to de Jong s investments in GoAmericaGo. RESPONSE TO REQUEST NO. 11 Faessen objects to this request to the extent that it seeks information already available to de Jong. Subject to this objection and the General Objections, Faessen will produce all nonprivileged, responsive documents, if any, that he has located through a reasonable and diligent search. REQUEST NO. 12 All documents or communications relating to Faessen s investments in WhistlePig. RESPONSE TO REQUEST NO. 12 Faessen objects to this request to the extent that it is lacking in specificity, overbroad and unduly burdensome. Subject to this objection and the General Objections, Faessen will produce all non-privileged, responsive documents, if any, relating to the terms, amount and timing of his investments in WhistlePig that he has located through a reasonable and diligent search. REQUEST NO. 13 All documents or communications relating to de Jong s investments in WhistlePig. RESPONSE TO REQUEST NO. 13 Faessen objects to this request to the extent that it seeks information already available to de Jong. Subject to this objection and the General Objections, Faessen will produce all nonprivileged, responsive documents, if any, that he has located through a reasonable and diligent search. 7
REQUEST NO. 14 All communications between Faessen and Bhakta concerning Faessen s equity stake in GoAmericaGo or WhistlePig. RESPONSE TO REQUEST NO. 14 REQUEST NO. 15 All communications between Faessen and de Jong concerning Faessen s equity stake in GoAmericaGo or WhistlePig. RESPONSE TO REQUEST NO. 15 Faessen objects to this request to the extent that it seeks information already available to de Jong. Subject to this objection and the General Objections, Faessen will produce all nonprivileged, responsive documents, if any, he has located through a reasonable and diligent search. REQUEST NO. 16 All communications between Faessen and any other party concerning Faessen s equity stake in GoAmericaGo or WhistlePig. RESPONSE TO REQUEST NO. 16 Faessen objects to this request on the grounds that it seeks identification and disclosure of information that is neither relevant to the subject matter of this action nor reasonably calculated to lead to the discovery of admissible evidence. Faessen further objects to this request on the grounds that it is lacking in specificity, overbroad and unduly burdensome. Faessen objects to this request to the extent that it is unreasonably cumulative and duplicative of other requests. 8
REQUEST NO. 17 All communications between Faessen and Bhakta concerning de Jong s equity stake in GoAmericaGo or WhistlePig. RESPONSE TO REQUEST NO. 17 REQUEST NO. 18 All communications between Faessen and de Jong concerning de Jong s equity stake in GoAmericaGo or WhistlePig. RESPONSE TO REQUEST NO. 18 Faessen objects to this request to the extent that it seeks information already available to de Jong. Subject to this objection and the General Objections, Faessen will produce all nonprivileged, responsive documents, if any, that he has located through a reasonable and diligent search. REQUEST NO. 19 All communications between Faessen and any other party concerning de Jong s equity stake in GoAmericaGo or WhistlePig. RESPONSE TO REQUEST NO. 19 REQUEST NO. 20 All documents or communications relating to the Secret Negotiations. 9
RESPONSE TO REQUEST NO. 20 REQUEST NO. 21 All documents or communications concerning any placement fee negotiated or received by Faessen in exchange for any services provided by Faessen to GoAmericaGo, WhistlePig or Bhakta. RESPONSE TO REQUEST NO. 21 Faessen objects to the request on the grounds that the term placement fee is vague and ambiguous. Subject to this objection and the General Objections, Faessen will produce all nonprivileged, responsive documents, if any, that he has located through a reasonable and diligent search. REQUEST NO. 22 All documents or communications concerning any services provided by Faessen to GoAmericaGo, WhistlePig or Bhakta. RESPONSE TO REQUEST NO. 22 Faessen objects to the request on the grounds that the term services is vague and ambiguous. Faessen further objects to this request on the grounds that it seeks identification and disclosure of information that is neither relevant to the subject matter of this action nor reasonably calculated to lead to the discovery of admissible evidence. Faessen further objects to this request to the extent that it is lacking in specificity, overbroad and unduly burdensome. REQUEST NO. 23 All documents and communications concerning de Jong s 2013 sale of his equity stake in WhistlePig and/or GoAmericaGo. 10
RESPONSE TO REQUEST NO. 23 Faessen objects to this request to the extent that it seeks information already available to de Jong. Subject to this objection and the General Objections, Faessen will produce all nonprivileged, responsive documents, if any, that he has located through a reasonable and diligent search. REQUEST NO. 24 All documents or communications regarding the Secret Agreement. RESPONSE TO REQUEST NO. 24 REQUEST NO. 25 All documents or communications concerning to Faessen s current equity stake in WhistlePig. RESPONSE TO REQUEST NO. 25 Faessen objects to this request to the extent that it is lacking in specificity, overbroad and unduly burdensome. Subject to this objection and the General Objections, Faessen will produce documents sufficient to show his current equity stake in WhistlePig. REQUEST NO. 26 Documents and Communications sufficient to show the current valuation of WhistlePig. RESPONSE TO REQUEST NO. 26 Faessen objects to this request on the grounds that it seeks documents that are not within Faessen s possession, control or custody. 11
REQUEST NO. 27 All documents or communications regarding any agreement between Faessen, Bhakta, WhistlePig and/or GoAmericaGo regarding Faessen s equity stake in WhistlePig or GoAmericaGo. RESPONSE TO REQUEST NO. 27 REQUEST NO. 28 All documents or communications concerning any other litigation between Faessen, Bhakta and/or WhistlePig, including but not limited to documents and communications regarding the action currently pending in the Delaware Court of Chancery, Case No. 12314-VCG. RESPONSE TO REQUEST NO. 28 Faessen objects to this request on the grounds that it seeks identification and disclosure of information that is neither relevant to the subject matter of this action nor reasonably calculated to lead to the discovery of admissible evidence. Faessen further objects to this request on the grounds that it is lacking in specificity, overbroad and unduly burdensome. Faessen further objects to this request to the extent it calls for documents and information covered by the attorney-client privilege, the attorney work-product doctrine or other applicable privileges and immunities. REQUEST NO. 29 All documents or communications that you referred to or relied upon in forming your answers to de Jong s Interrogatories. RESPONSE TO REQUEST NO. 29 Faessen objects to this request to the extent it calls for documents and information covered by the attorney-client privilege, the attorney work-product doctrine or other applicable 12
privileges and immunities. Subject to this objection and the General Objections, Faessen will produce all non-privileged, responsive documents, if any, that he has located through a reasonable and diligent search. REQUEST NO. 30 All documents or communications that you referred to or relied upon in drafting your motion to dismiss this action. RESPONSE TO REQUEST NO. 30 Faessen objects to this request to the extent it calls for documents and information covered by the attorney-client privilege, the attorney work-product doctrine or other applicable privileges and immunities. Subject to this objection and the General Objections, Faessen will produce all non-privileged, responsive documents, if any, that he has located through a reasonable and diligent search. REQUEST NO. 31 All documents or communications on which you intend to rely to prove any counterclaims or defenses you may assert in this action, or to establish damages or any other remedy. RESPONSE TO REQUEST NO. 31 Faessen objects to this request to the extent it calls for documents and information covered by the attorney-client privilege, the attorney work-product doctrine or other applicable privileges and immunities. Faessen will produce all non-privileged, responsive documents, if any, that he has located through a reasonable and diligent search. REQUEST NO. 32 Any and all documents not otherwise covered by the foregoing requests that Defendant intends to rely upon in any dispositive motion or at trial. 13
RESPONSE TO REQUEST NO. 32 Faessen objects to this request to the extent it calls for documents and information covered by the attorney-client privilege, the attorney work-product doctrine or other applicable privileges and immunities. Faessen will produce all non-privileged, responsive documents, if any, that he has located through a reasonable and diligent search. New York, New York Dated January 30, 2017 Zachary S. Taylor TAYLOR & COHEN LLP 40 Worth Street 10th Floor New York, New York 10013 Telephone (646) 527-7377 Facsimile (646) 439-9983 Attorneys for Defendant Wilco Faessen 14