Case 15-03050-bjh Doc 69 Filed 04/29/16 Entered 04/29/16 19:18:10 Page 1 of 10 Charles W. Branham, III Texas Bar No. 24012323 Branham Law, LLP 3900 Elm Street Dallas, Texas 75226 214-722-5990 214-722-5991 (fax) tbranham@dobllp.com ATTORNEYS FOR MICHAEL FRANK, DANA BLOCK, GREG BURK, JESSICA CASEY, VICTORIA CASTILLO, JEREMY COZART, JOHNNY KEEL, VALLERY MANN, JO MINAYA, BRIAN PARKER, CHRISTOPHER PITRE, TIM CARR, CODDI DEAN, CHARLES W. BRANHAM, III, BRANHAM LAW, LLP, JOHN NELSON AND THE CHAPTER 7 TRUSTEE IN THE UNITED STATES BANKRUPTCY COURT FOR THE NORTHERN DISTRICT OF TEXAS DALLAS DIVISION IN RE: Lloyd Eugene Ward DEBTOR CASE NO. 14-32939-bjh (Chapter 7) ROBERT YAQUINTO, Chapter 7 Trustee Plaintiff, ADVERSARY NO. 15-03037-bjh v. AMANDA WARD, GLENN PROPERTIES, CORP. a/k/a GLENN PROPERTIES, INC., BEST ACCOUNT RECEIVABLES MANAGEMENT SOLUTIONS, LLC and LLOYD WARD Defendants MICHAEL FRANK, DANA BLOCK, GREG BURKE, JESSICA CASEY, VICTORIA CASTILLO, JEREMY COZART, JOHNNY KEEL, VALLERY MANN, JO MINAYA, BRIAN PARKER, CHRISTOPHER PITRE, Plaintiffs Motion to Compel (LWPC Subpoena) Page 1
Case 15-03050-bjh Doc 69 Filed 04/29/16 Entered 04/29/16 19:18:10 Page 2 of 10 TIM CARR, CODDI DEAN, and JOHN NELSON AND ROBERT YAQUINTO, CHAPTER 7 TRUSTEE Plaintiffs, ADVERSARY NO. 15-03050 v. LLOYD WARD Defendant. PLAINTIFFS MOTION TO COMPEL DOCUMENT PRODUCTION PURSUANT TO SUBPOENA DUCES TECUM AND DEPOSITION TESTIMONY FROM LLOYD WARD, P.C. COME NOW Plaintiffs and file this, their Motion to Compel Document Production Pursuant to Subpoena Duces Tecum and Deposition Testimony from Lloyd Ward, P.C., and respectfully show the Court as follows. A. Facts Related to the Subpoena I. STATEMENT OF RELEVANT FACTS 1. On or about March 25, 2016, Plaintiffs served a subpoena on Lloyd Ward, P.C., requesting the presence of its corporate representative for a deposition on April 25, 2016, and requesting that Lloyd Ward, P.C. produce certain categories of documents at that time. See Subpoena attached as Exhibit A hereto. 2. On or about April 8, 2016, Lloyd Ward ( Ward or Defendant ), counsel for Lloyd Ward, P.C. mailed Lloyd Ward, P.C. s Objection to Subpoena Duces Tecum to Non-Party Ward Legal Associates P.C. to Plaintiffs counsel. See Objection attached as Exhibit B hereto. Therein, Lloyd Ward, P.C. raises objections to the Topics & Subjects for Plaintiffs Deposition of Lloyd Ward, P.C. and to the Subpoena Duces Tecum. Plaintiffs Motion to Compel (LWPC Subpoena) Page 2
Case 15-03050-bjh Doc 69 Filed 04/29/16 Entered 04/29/16 19:18:10 Page 3 of 10 3. Plaintiffs counsel reached out to Ward on April 19, 2016, after reviewing these Objections, and suggested that the deposition would need to be rescheduled pending a ruling of the Court if Plaintiffs could not reach a resolution with Lloyd Ward, P.C. On April 21, 2016, Plaintiffs counsel conferred with Ward and was unable to resolve the disputes, so the deposition scheduled for April 25, 2016, has been postponed to allow Plaintiffs time to seek a ruling on these and related matters. 1 4. Lloyd Ward, P.C. has, at all relevant times, been an entity wholly owned by Ward and, as Plaintiffs alleged in their complaint in adversary number 15-03050, is an alter-ego of Ward himself. B. Facts Related to the Documents Sought 5. Document Request 3: True and correct copies of tax returns of Lloyd Ward, P.C.: Lloyd Ward, P.C. did not object to this request, but instead stated that such documents have previously been produced. This is incorrect however, as neither Ward, nor any entity owned or controlled by Ward, including Lloyd Ward, P.C., has produced certified copies of tax returns. Ward has further refused to execute IRS Form 4506 to allow Plaintiffs to obtain certified copies of tax returns directly from the IRS. See Defendant s Objections and Responses to Plaintiffs Second Set of Requests for Production to Defendant Lloyd Ward at 6 (Response to Request #3) attached as Exhibit C hereto. 2 Additionally, when Plaintiffs sought to rely on tax returns, including those previously produced for Lloyd Ward, P.C., in support of Plaintiffs Motion for Summary Judgment, Defendant objected to the authenticity of the tax documents produced. See Defendants Brief in Support of Response to Plaintiff s Motion for Summary Judgment in Case 15-03037 (Doc. 53) at 2. 1 The April 25, 2016, deposition was scheduled, by agreement of the parties, to be a deposition of Lloyd Ward individually and as corporate representative of Ward Legal Associates, P.C. and Lloyd Ward, P.C. Ward Legal Associates, P.C. and Lloyd Ward, P.C. both served similar objections to their respective subpoenas. Therefore, a motion to compel compliance with the subpoena issued to Ward Legal Associates, P.C. is being filed concurrently herewith. 2 A motion to compel the production of tax returns is being filed concurrently herewith. Plaintiffs Motion to Compel (LWPC Subpoena) Page 3
Case 15-03050-bjh Doc 69 Filed 04/29/16 Entered 04/29/16 19:18:10 Page 4 of 10 6. Document Request 21: Any and all correspondence, email or communication between Lloyd Ward and Glenn Properties Corporation: Lloyd Ward, P.C. has objected to this request as exceeding the scope of Fed. R. Civ. P. 26 and 45 because it seeks information not related [to] the Deponent. Additionally, during the conference regarding this motion, Ward indicated that Lloyd Ward, P.C. further objects based on attorney client privilege although that objection was not stated and Lloyd Ward, P.C. has not provided a privilege log. The request, however, specifically asks for correspondence between Lloyd Ward and Glenn Properties Corporation, the alter ego entity that holds title to the house in which the Wards reside and has paid a number of bills for the Wards, including Ward s fines owed to the State Bar of Texas, which is in the possession, custody, or control of Lloyd Ward, P.C. Should any such correspondence be privileged as attorney-client communication, a privilege log should be provided to allow Plaintiffs and the Court to further assess the claim of privilege. 7. Document Request 23: Any and all correspondence, email or communication between Lloyd Ward or Amanda Ward regarding Best Account Receivables Management Solutions, LLC: Lloyd Ward, P.C. has objected to this request as exceeding the scope of Fed. R. Civ. P. 26 and 45 because it seeks information not related to the Deponent. This request, however, specifically asks for correspondence between Lloyd Ward or Amanda Ward regarding Best Account Receivables Management Solutions, LLC, an alleged alter ego entity which is used to shield assets from creditors, which is in the possession, custody, or control of Lloyd Ward, P.C. and therefore seeks documents which are relevant and discoverable. See, e.g., Collection Script, Letters, and Complaints attached as Exhibit D hereto. 8. Document Request 24: Any and all correspondence, email or communication between Lloyd Ward and Best Account Receivables Management Solutions, Lloyd Ward, P.C. has objected to this request as exceeding the scope of Fed. R. Civ. P. 26 and 45 because it seeks information not related to the Deponent. This request, however, specifically asks for Plaintiffs Motion to Compel (LWPC Subpoena) Page 4
Case 15-03050-bjh Doc 69 Filed 04/29/16 Entered 04/29/16 19:18:10 Page 5 of 10 correspondence between Lloyd Ward and Best Account Receivables Management Solutions, LLC, an alleged alter ego entity which is used to shield assets from creditors, which is in the possession, custody, or control of Lloyd Ward, P.C. and therefore seeks documents which are relevant and discoverable. 9. Document Request 26: Any and all contracts entered into by Glenn Properties Corporation: Lloyd Ward, P.C. has objected to this request as exceeding the scope of Fed. R. Civ. P. 26 and 45 because it seeks information not related to the Deponent. This request, however, specifically asks for contracts entered into by Glenn Properties Corporation which are in the possession, custody, or control of Lloyd Ward, P.C., and therefore seeks documents which are relevant and discoverable. 10. Document Request 27: All documents authored, signed, or authorized by Lloyd Ward on behalf of or for the benefit of Glenn Properties Corporation: Lloyd Ward, P.C. has objected to this request as exceeding the scope of Fed. R. Civ. P. 26 and 45 because it seeks information not related to the Deponent. This request, however, specifically asks for documents authored, signed or authorized by Lloyd Ward on behalf of or for the benefit of Glenn Properties Corporation, to the extent such documents are in the possession, custody, or control of Lloyd Ward, P.C. and therefore seeks documents which are relevant and discoverable. 11. Document Request 28: All documents authored, signed, or authorized by Lloyd Ward on behalf of or for the benefit of Best Account Receivables Management Solutions, LLC: Lloyd Ward, P.C. has objected to this request as exceeding the scope of Fed. R. Civ. P. 26 and 45 because it seeks information not related to the Deponent. This request, however, specifically asks for documents authored, signed or authorized by Lloyd Ward on behalf of or for the benefit of Best Account Receivables Management Solutions, LLC, to the extent such documents are in the possession, custody, or control of Lloyd Ward, P.C. and therefore seeks documents which are relevant and discoverable. Plaintiffs Motion to Compel (LWPC Subpoena) Page 5
Case 15-03050-bjh Doc 69 Filed 04/29/16 Entered 04/29/16 19:18:10 Page 6 of 10 12. Document Request 29: All documents which discuss, mention, reference, or set forth any relationship between Lloyd Ward, P.C. and Lloyd Ward, or any entity controlled, managed or in which Lloyd Ward holds an ownership interest between 2009 and the present: Lloyd Ward, P.C. has stated that it cannot locate any records responsive to this request. However, since Lloyd Ward, P.C. is an entity wholly owned by Ward, responsive documents should be presumed to exist and to be in the possession, custody, or control of Lloyd Ward, P.C. 13. Document Requests 30 & 33: All communications or documents between Lloyd Ward, P.C.or Lloyd Ward and Don Frey or any entity owned or controlled by Don Frey: Lloyd Ward, P.C. has objected to these requests as exceeding the scope of Fed. R. Civ. P. 26 and 45 because they seek[] information not related [to] the Deponent and further indicated during the conference regarding this motion that any such documents would be privileged as attorney-client communication. Lloyd Ward, P.C. s written response states that subject to its objections, it cannot locate any records responsive to [these] request[s]. However, based on its verbal representation that any responsive documents would be privileged, Plaintiffs request that Defendant, at a minimum, provide an amended response which affirmatively states that no documents are being withheld and that if documents are being withheld, such documents be produced immediately. This request seeks a specific category of documents regarding the correspondence between Ward and his alter ego entity and Don Frey, a business associate who was directly involved in making arrangements to invest money, purportedly from the Glenn Family Trust, in the business of Reef Gillum, and who was involved in coordinating transfers between various Ward-related entities. See Email Correspondence & Promissory Note attached as Exhibits E & F hereto. 14. Lloyd Ward, P.C. indicated during the conference regarding this motion to compel that no documents are being withheld responsive to Document Requests 6 and 20. The Federal Rules of Civil Procedure require that responses made subject to objections affirmatively Plaintiffs Motion to Compel (LWPC Subpoena) Page 6
Case 15-03050-bjh Doc 69 Filed 04/29/16 Entered 04/29/16 19:18:10 Page 7 of 10 state whether any documents are being withheld. See Fed. R. Civ. P. 34(b)(2)(C). Plaintiffs therefore request that Lloyd Ward, P.C. provide amended objections which make that affirmative representation or withdraw those objections so that the Court need not waste its time considering those objections. C. Facts Related to the Topics and Subjects Noticed 15. The subpoena served on Lloyd Ward, P.C. states that Lloyd Ward, P.C. shall provide the person most knowledgeable about and prepared to answer questions relating to fourteen topics and subjects. The topics to which Lloyd Ward, P.C. has objected include the relationship between Ward and Lloyd Ward, P.C., the financial records and bank accounts of Lloyd Ward, P.C., payments by or to entities owned or controlled by Ward, the information used to complete tax returns for Lloyd Ward, P.C., the authenticity of documents produced by Lloyd Ward, P.C. and the information contained therein, and the alter-ego status of Ward and Lloyd Ward, P.C. See Exhibit A at 7 (Topics & Subjects for Plaintiffs Deposition of Lloyd Ward, P.C.). 16. The objections are essentially that Lloyd Ward, P.C. is not a party to the case and therefore should not have to be burdened with preparing to be deposed on these topics, that the topics seek information related to other entities that are not parties to the litigation, including confidential financial information, that Lloyd Ward, P.C. should not be required to authenticate documents and cannot testify about the information used to prepare its tax returns, and that Lloyd Ward, P.C. should not have to answer questions regarding its alter-ego status because it is not a party to the case. These objections are without merit as each of the topics noticed relates specifically to Ward s finances and the finances of his alter ego entities, Ward s ownership or control of the entities, and the alter ego status generally. These are proper topics for a corporate representative deposition and the Court should instruct Lloyd Ward, P.C. to present a corporate Plaintiffs Motion to Compel (LWPC Subpoena) Page 7
Case 15-03050-bjh Doc 69 Filed 04/29/16 Entered 04/29/16 19:18:10 Page 8 of 10 representative who is adequately prepared to be deposed on the topics and subjects noticed in the subpoena. II. ARGUMENT & AUTHORITIES A. The Information Sought is Relevant & Discoverable 17. Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party s claim or defense... Fed. R. Civ. P. 26(b)(1). The underlying bankruptcy case and related adversary proceedings are directly related to Ward s finances and any assets over which Ward has actual or de facto ownership, including his alter ego entities and any assets transferred by or between them. Lloyd Ward, P.C., an entity wholly owned by Ward, which has made transfers to and paid bills for Ward and other entities owned or controlled by Ward and his wife, has documents and information relevant to the claims asserted by Plaintiffs in the adversary actions and the discovery requested from Lloyd Ward, P.C. is reasonably calculated to lead to the discovery of admissible evidence. B. The Court Should Compel Production of Responsive Documents 18. Ward has a history of making improper objections during depositions and improperly instructing the witness not to answer. Similar refusals to comply with subpoenas issued in this case, where Ward represented the witnesses subpoenaed, have been litigated in the United States Bankruptcy Court for the Eastern District of Arkansas in the miscellaneous proceeding styled Glenn v. Yaquinto, Docket No. 1:15-mp-00102. That court indicated in the most recent hearing, on March 9, 2016, that it would consider disqualifying Ward from representing the subpoenaed witnesses in the future based on the evidence of obfuscation. See Transcript of March 9, 2016, Hearing at 62:3-10, attached as Exhibit H to Plaintiffs Motion to Compel Document Production Pursuant to Subpoena Duces Tecum and Deposition Testimony from Ward Legal Associates, P.C., filed concurrently herewith. Ward s refusal to permit Lloyd Ward, P.C. to produce documents responsive to the subpoena duces tecum and insistence that Plaintiffs Motion to Compel (LWPC Subpoena) Page 8
Case 15-03050-bjh Doc 69 Filed 04/29/16 Entered 04/29/16 19:18:10 Page 9 of 10 Lloyd Ward, P.C. will not answer questions during the deposition is merely another antic of a defendant seeking to prevent the truth from being told. Thus, Plaintiffs move the Court for an order compelling production and instructing Lloyd Ward, P.C. to appear for the deposition by and through a corporate representative who is adequately prepared to answer questions related to the Topics and Subjects for which the deposition was noticed. III. CONCLUSION & RELIEF REQUESTED 19. For the foregoing reasons, Plaintiffs respectfully ask this Court to enter an order compelling Lloyd Ward, P.C. to immediately produce all documents responsive to the subpoena duces tecum served on it on or about March 25, 2016, and instructing Lloyd Ward, P.C. to appear for its deposition prepared to answer questions related to the Topics and Subjects noticed in that subpoena. Dated: April 29, 2016 Respectfully Submitted, By: /s/ Charles W. Branham_ Charles W. Branham, III Texas Bar No. 24012323 Corinna Chandler Texas Bar No. 24061272 (Of Counsel) Branham Law, LLP 3900 Elm Street Dallas, Texas 75226 214-722-5990 214-722-5991 (fax) tbranham@dobllp.com cchandler@dobllp.com ATTORNEYS FOR THE CHAPTER 7 TRUSTEE, MICHAEL FRANK, DANA BLOCK, GREG BURK, JESSICA CASEY, VICTORIA CASTILLO, JEREMY COZART, JOHNNY KEEL, VALLERY MANN, JO MINAYA, BRIAN PARKER, CHRISTOPHER PITRE, TIM CARR, CODDI DEAN, AND JOHN NELSON, CHARLES W. BRANHAM, III, AND BRANHAM LAW, LLP Plaintiffs Motion to Compel (LWPC Subpoena) Page 9
Case 15-03050-bjh Doc 69 Filed 04/29/16 Entered 04/29/16 19:18:10 Page 10 of 10 CERTIFICATE OF SERVICE I hereby certify that on April 29, 2016, a true and correct copy of the foregoing document was served via first class mail and ECF notification, where available, upon all counsel of record. /s/ Charles W. Branham_ Charles W. Branham, III CERTIFICATE OF CONFERENCE I hereby certify that counsel for Plaintiffs has conferred with Ward, as counsel for Lloyd Ward, P.C., regarding the relief requested herein and has been informed that they oppose the relief requested. /s/ Charles W. Branham_ Charles W. Branham, III Plaintiffs Motion to Compel (LWPC Subpoena) Page 10