Opinion

In re Lifetrade Litigation

Court: District Court, S.D. New York
Filed: Jul 10, 2023
Cited by: 0 cases
Authority: More cited than 27.6%

granting plaintiff’s ‘motion to strike objections’ to requests to admit and interrogatories, pursuant to Rule 37(a)(2), and stating that ‘[a] party may file a motion to compel discovery under Rule 37[(a)(2)] … where the party’s response is evasive or incomplete.’

How later courts described this case

granting plaintiff’s ‘motion to strike objections’ to requests to admit and interrogatories, pursuant to Rule 37(a)(2), and stating that ‘[a] party may file a motion to compel discovery under Rule 37[(a)(2)] … where the party’s response is evasive or incomplete.’

Written by the judges who cited it.

The opinion

cilis

uly 6, 2023 USDC SDNY PARTNERS

J yh DOCUMENT C. Andrew Waters (CA,DC,OR,TX)

Peter A. Kraus (CA,HI,MO,TX,VA

VIA ECF ECF ELECTRONICALLY FILED Charles S. sae (PA,TX)

Michael L. Armitage (CA,LA

Hon. J. Katharine H. Parker, U.S.MLJ. DOC einen Gary M. paul (cA) me

Daniel Patrick Moynihan United States Courthouse DATE FILED:_ 7/10/2023 Leslie C. MacLean (PA,TX)

500 Pearl Street Michael B. Gurien (CA)

New York, NY 10007-1312 Jovtpstingtty

Susannah B. Chester-Schindler □□□□□□

Re: In re Lifetrade Litigation, Case No. 17-cv-02987 (JPO)(IKHP) Caitlyn Silhan (CA,TX)

Amended Letter Motion to Compel Former Lifetrade Counsel Locke Lord, LLP and Patrick). Wigle □□□□

Withers Bergman, LLP to Produce Documents Related to the Representation and to rretorhes Lohner □□□

Overrule and/or Strike Privilege Objections Raised by the Firms sam I. lola (TX,CA)

ASSOCIATES

Judge Parker: Rajeev K. Mittal (CA)

Jillian Rice-Loew (CA)

On May 22, 2023, Plaintiffs submitted a letter motion pursuant to Federal Rule of Civil — Matthew Bufford □□

Procedure 26(b)(1) to compel from former Lifetrade law firm Locke Lord, LLP (“Locke nite tant teay

Lord”) production of relevant, responsive documents and requested a discovery conference 641) powell (1)

to discuss this dispute before the Court. Dkt. 1065. Because the responses to subpoenas Ethan Robert (CA)

served on another former Lifetrade law firm raises substantially similar issues, pursuant to Nicole Poursalimi (CA)

Federal Rule of Civil Procedure Rule 37, Plaintiffs submit this amended letter motion to (1) _ Kimberly Rosales (7)

further move to strike and/or overrule privilege objections raised by Locke Lord and Withers OF COUNSEL

Bergman, LLP (“Withers”) (collectively, “the former Lifetrade law firms’’); and (2)

respectfully request, in light of Your Honor’s June 29, 2023 order that Locke Lord shall have 8: Scott Kruka (PA,TX)

: : 5 : Win. Paul Lawrence II (TX,VA)

a representative present to discuss Plaintiffs’ motion at the July 13, 2023 status conference Wigan Galerston (IL,T%)

(Dkt. 1101), that Your Honor order attendance by a Withers representative as well to discuss Randall L. lola (IL,OK,TX)

and resolve this dispute before the Court. Kay Gunderson Reeves □□□□ □□□

Susan M. Ulrich (CA,MA,WA)

The subpoena to Withers is attached as Exhibit A and Withers responses are attached as Fiizabeth A Post (CA)

Exhibit B. Both Locke Lord and Withers have produced some responsive documents that

they do not consider privileged. Nevertheless, both firms continue to withhold certain

unspecified documents on privilege grounds and neither has provided any type of log

identifying the withheld documents.

An identical subpoena has been served on a third former Lifetrade law firm, Dechert, LLP

(“Dechert”), and Dechert has raised similar privilege objections. Because discussions

regarding Dechert’s objections are ongoing between Plaintiffs and Dechert, this letter motion

does not include Dechert.

In addition to maintaining their request that Your Honor compel Locke Lord to produce

those documents related to its representation of the Lifetrade entities and Roy Smith (except

as to communications related solely to his personal affairs) (see Dkt. 1065), Plaintiffs’ amended

letter motion seeks the same relief as to Withers. Discovery of these materials 1s consistent

with Fed. R. Civ. P. 26(b)(1) which gives each party to an action the right to “obtain discovery

WATERS KRAUS & PAUL ATTORNEYS AND COUNSELORS

DALLAS: 3141 HOOD ST SUITE 200 DALLAS, TEXAS 75219 TEL 2143576244 FAX 214 357 7252

LOS ANGELES: 11601 WILSHIRE BLVD., SUITE 1900 LOS ANGELES, CALIFORNIA 90025 TEL 3104148146 FAX 310 414 8156

MOLINE: 1530 3RDAVENUEA 2ND FLOOR MOLINE, ILLINOIS 61265 TEL 800 2269880 (by appointment)

regarding any nonprivileged matter that is relevant to any party’s claim or defense and

proportional to the needs of the case.” The former Lifetrade law firm files pertaining to

representation of Smith and the Lifetrade entities and, particularly, those related to the

transactions giving rise to the allegations in the complaint are clearly relevant and proportional

to the needs of the case and should be produced. Moreover, as discussed below, Your Honor

determined that no privilege exists to protect these documents from discovery. Accordingly,

Plaintiffs respectfully urge Your Honor to compel the former Lifetrade law firms to produce

responsive documents.

Plaintiffs further move to overrule and/or strike privilege objections to requests for

production of documents related to the representation of former Lifetrade CEO, Roy Smith

(except as to communications relating solely to his personal affairs) and the now defunct

Lifetrade entities. In In re Air Crash at Belle Harbor, New York on November 12, 2001, No. MDL

1448 (RWS), 2006 WL 1236688, at * 1 (S.D.N.Y. May 9, 2006) plaintiffs moved to strike

defendant’s objections to plaintiff’s request to produce documents. Defendant argued that a

motion to strike was not the proper means to achieve the relief sought, suggesting that plaintiff

could only proceed via motion to compel. Id. Granting plaintiff’s motion in part, the District

Court stated that, “Fed.R.Civ.P. 37 contemplates a motion to strike invalid objections….

Courts have ruled on ‘motions to strike objections’ pursuant to Rule 37(a)(2). See e.g., Dunn v.

Warhol, 1992 WL 328897 (E.D.Pa. Oct. 26, 1992) (granting in part plaintiff’s ‘Motion to Strike

Objections’ to requests for documents pursuant to Rule 37(a)(2). See also Meyer v. S. Pac. Lines,

199 F.R.D. 610 (N.D.Ill. 2001) (granting plaintiff’s ‘motion to strike objections’ to requests to

admit and interrogatories, pursuant to Rule 37(a)(2), and stating that ‘[a] party may file a

motion to compel discovery under Rule 37[(a)(2)] … where the party’s response is evasive or

incomplete.’). Little would be gained by requiring another set of motion papers to present the

same issues.” Id. (citations in original).

Here, Locke Lord and Withers rely on substantially identical privilege objections to avoid

disclosure of documents related to their representation of Smith and the Lifetrade entities on

matters relevant to the case at bar. Attorney-client privilege, however, does not exist between

these firms and their former clients. As a general rule, the privilege terminates when an

organization ceases to have legal existence such that no one can act on its behalf. See Securities

and Exchange Comm’n v. Carillo Huetell LLP, No. 13 Civ. 1735 (GBD)(JCF), 205 WL 1619282,

at *2-*3 (S.D.N.Y. April 8, 2015) (“The weight of authority… holds that a dissolved or defunct

corporation retains no privilege.”) citing In re Behr Dayton Thermal Products, LLC, 298 F.R.D.

536, 541–43 (S.D.Ohio 2014); Trading Technologies International, Inc. v. GL Consultants, Inc., Nos.

05–4120, 05 C 5164, 2012 WL 874322, at *4 (N.D.Ill. March 14, 2012); Official Committee of

Administrative Claimants ex rel. LTV Steel Co. v. Moran, 802 F.Supp.2d 947, 94849 (N.D.Ill.2011);

Lopes v. Viera, 688 F.Supp.2d 1050, 1059–69 (E.D.Cal.2010); TAS Distributing Co. v. Cummins

Inc., No. 07–1141, 2009 WL 3255297, at *1–2 (C.D. Ill Oct. 7, 2009); City of Rialto v. United

States Department of Defense, 492 F.Supp.2d 1193, 1200 (C.D.Cal.2007); Gilliland v. Geramita, No.

2:05–CV–1059, 2006 WL 2642525, at *4 (W.D.Pa. Sept. 14, 2006); Lewis v. United States, No.

02–2958, 2004 WL 3203121, at *4 (W.D.Tenn. Dec. 7, 2004); In re Fundamental Long Term Care,

Inc., No. 8:11–bk–22258, 2012 WL 4815321, at *8–10 (Bkrtcy.M.D.Fla. Oct. 9, 2012). Indeed,

at the case management conference on April 27, 2023

Page 3

Lifetrade entities are defunct, no privilege exists to protect these files fom production.

(Dkt. No 1045.) And neither counsel for Defendant John Marcum nor counsel for the Smith

estate raised any objection to the court’s ruling that there is no attorney client privilege

protecting these files. Under these circumstances, objections to Plaintiffs’ subpoenas on

privilege grounds are invalid.

Plaintiffs have conferenced repeatedly with counsel for the former Lifetrade law firms

attempting to resolve their privilege objections by agreement, to no avail, thwarting plaintiffs’

legitimate discovery requests to the law firms. Details regarding the meet and confer history

between Plaintiffs and Locke Lord were contained in PlaintifPs first motion to compel.

Plaintiffs have met and conferred with Withers regarding the contents of this letter motion on

multiple occasions the last being on June 29, 2023.

Accordingly, rather than submit an additional motion to compel, Plaintiffs submit this

amended motion to ask that Your Honor overrule and/or strike the inapplicable privilege

objections, and that Your Honor order attendance by Withers at the July 13, 2023 conference

to discuss and resolve this dispute before the Court.

SO ORDERED:

Respects Ketigiie H Faber

HON. KATHARINE H. PARKER

UNITED STATES MAGISTRATE JUDGE 7/10/2023

Peter Kraus Plaintiffs have moved for a conference in

WATERS, KRAUS & PAUL advance of moving to compel Withers Bergmai

Attorneys for Plaintiffs LLP to respond to a subpoena. By July 17,

2023, Withers shall respond to Plaintiffs’ letter.

ce: :

Kelly A. Carrero kacarrero@]onesDay.com As Withers has not had the same opportunity

Mahesh V. Parlikad mvparlikad@JonesDay.com Locke Lord to become acquainted with this

Nicole M. Camacho ncamachohernandez@jonesday.com motion prior to the July 13, 2023 case

Ryan W. McMullan rmemullan@JonesDay.com management conference, Withers is not requir

Alyssa L. Aubuchon aaubuchon@JonesDay.com to send a representative to the conference but

invited to do so, in which case the Court will he

Arie Lakind alakind(@szaferman.com oe argument from Withers regarding the motion.

Janine G. Bauer □□□□□□□□□□□□□□□□□□□□□□ The Court will address the motion in regards tc

Shelia Kiwinski skliwinski@szaferman.com g □

Locke Lord on July 13, 2023 at 2:00 p.m. in

Milo Silberstein Msilberstein(@DSBLawNY.com Courtroom 17D, 500 Pearl Street, New York

Maria Bianco MBianco@dsblawny.com New York.

Steven Phillips sphillips@p2law.com Plaintiffs' counsel shall serve a copy of this

Diane Paolicelli dpaolicelli(@p2law.com :

Mate Gorrie mgorrie@p2law.com Order on Withers Bergman, LLP.

Jillian Rice-Loew jrice-loew@waterskraus.com

Charles Siegel siegel(@waterskraus.com

Michael Armitage armitage@waterskraus.com

Nicole Poursalimi npoursalimi@waterskraus.com

EXHIBIT A

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

IN RE LIFETRADE LITIGATION: CIVIL ACTION NO. 1:17-cv-02987

This Document Relates to: All Actions

CERTIFICATE OF SERVICE

The undersigned hereby certifies that the attached Subpoena to Produce Documents,

Electronically Stored Information or Tangible Things has been served this 12" day of August,

2022, on all counsel of record pursuant to the Federal Rules of Civil Procedure.

; A f }

Peter A. Kraus

(Admitted Pro Hac Vice)

3141 Hood Street, Suite 700

Dallas, Texas 75219

214-357-6244

kraus@waterskraus.com

IN RE LIFETRADE LITIGATION:

This Document Relates to: All Actions

UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF NEW YORK

IN RE LIFETRADE LITIGATION:

This Document Relates to: All Actions

Plaintiff,

Case Number 1:17-cv-02987-JPO-KHP

SUBPOENA TO PRODUCE DOCUMENTS, ELECTRONICALLY STORED

INFORMATION, OR TANGIBLE THINGS IN A CIVIL ACTION

To: | Withers Bergman LLP, by and through its Special Counsel,

Chaya Weinberg-Brodt, 430 Park Avenue, 10" Floor,

New York, NY 10022-3505

YOU ARE COMMANDED TO PRODUCE the categories of documents set forth in this

subpoena. This subpoena has been issued by the United States District Court for the Southern

District of New York in the matter styled IN RE LIFETRADE LITIGATION, No. 1:17-cv-02987-

JPO-KHP.

The documents shall be produced on September 15, 2022 at 10:00 a.m. at the offices of

Withers Bergman, LLP, 430 Park Avenue, 10" Floor, New York, NY 10033-3505, or at a time

and place agreed upon by the undersigned counsel and counsel for the recipient.

The following provisions of Fed.R.Civ.P. 45 are attached: Rule 45(c) relating to the place

of compliance, Rule 45(d) relating to your protection as a person subject to a subpoena, and Rule

45(c) and (g) relating to your duty to respond to this subpoena and the potential consequences of

not doing so.

Respectfully submitted,

/s/ Péter A. Kraus

Dated: August 12, 2022

Dallas, Texas

Federal Rule of Civil Procedure 45 (c), (d), (e), and (g) (Effective 12/1/13)

not describe specific occurrences in dispute and results from the expert’s

(1) For a Trial, Hearing, or Deposition. A subpoena may command a study that was not requested by a party.

person to attend a trial, hearing, or deposition only as follows: (C) Specifying Conditions as an Alternative. In the circumstances

(A) within 100 miles of where the person resides, is employed, or described in Rule 45(d)(3)(B), the court may, instead of quashing or

regularly transacts business in person; or modifying a subpoena, order appearance or production under specified

(B) within the state where the person resides, is employed, or regularly conditions if the serving party:

transacts business in person, if the person (i) shows a substantial need for the testimony or material that cannot |

(i) is a party or a party’s officer; or otherwise met without undue hardship; and

(ii) is commanded to attend a trial and would not incur substantial (ii) ensures that the subpoenaed person will be reasonably compensat

expense.

(e) Duties in Responding to a Subpoena.

(2) For Other Discovery. A subpoena may command:

(A) production of documents, electronically stored information, or (1) Producing Documents or Electronically Stored Information. These

tangible things at a place within 100 miles of where the person resides, is procedures apply to producing documents or electronically stored

employed, or regularly transacts business in person; and information:

(B) inspection of premises at the premises to be inspected. (A) Documents. A person responding to a subpoena to produce docume!

must produce them as they are kept in the ordinary course of business or

(d) Protecting a Person Subject to a Subpoena; Enforcement. must organize and label them to correspond to the categories in the deman

(B) Form for Producing Electronically Stored Information Not Specifiec

(1) Avoiding Undue Burden or Expense; Sanctions. A party or attorney Ifa subpoena does not specify a form for producing electronically stored

responsible for issuing and serving a subpoena must take reasonable steps information, the person responding must produce it in a form or forms in

to avoid imposing undue burden or expense on a person subject to the which it is ordinarily maintained or in a reasonably usable form or forms.

subpoena. The court for the district where compliance is required must (C) Electronically Stored Information Produced in Only One Form. The

enforce this duty and impose an appropriate sanction—which may include person responding need not produce the same electronically stored

lost earnings and reasonable attorney’s fees—on a party or attorney who information in more than one form.

fails to comply. (D) Inaccessible Electronically Stored Information. The person

responding need not provide discovery of electronically stored informatior

(2) Command to Produce Materials or Permit Inspection. from sources that the person identifies as not reasonably accessible becaus

(A) Appearance Not Required. A person commanded to produce of undue burden or cost. On motion to compel discovery or for a protectiv

documents, electronically stored information, or tangible things, or to order, the person responding must show that the information is not

permit the inspection of premises, need not appear in person at the place of _ reasonably accessible because of undue burden or cost. If that showing is

production or inspection unless also commanded to appear for a deposition, made, the court may nonetheless order discovery from such sources if the

hearing, or trial. requesting party shows good cause, considering the limitations of Rule

(B) Objections. A person commanded to produce documents or tangible 26(b)(2)(C). The court may specify conditions for the discovery.

things or to permit inspection may serve on the party or attorney designated

in the subpoena a written objection to inspecting, copying, testing, or (2) Claiming Privilege or Protection.

sampling any or all of the materials or to inspecting the premises—or to (A) Information Withheld. A person withholding subpoenaed information

producing electronically stored information in the form or forms requested. _ under a claim that it is privileged or subject to protection as trial-preparatic

The objection must be served before the earlier of the time specified for material must:

compliance or 14 days after the subpoena is served. If an objection is made, (i) expressly make the claim; and

the following rules apply: (ii) describe the nature of the withheld documents, communications, or

(i) At any time, on notice to the commanded person, the serving party tangible things in a manner that, without revealing information itself

may move the court for the district where compliance is required for an privileged or protected, will enable the parties to assess the claim.

order compelling production or inspection. (B) Information Produced. If information produced in response to a

(ii) These acts may be required only as directed in the order, and the subpoena is subject to a claim of privilege or of protection as

order must protect a person who is neither a party nor a party’s officer from _trial-preparation material, the person making the claim may notify any part

significant expense resulting from compliance. that received the information of the claim and the basis for it. After being

notified, a party must promptly return, sequester, or destroy the specified

(3) Quashing or Modifying a Subpoena. information and any copies it has; must not use or disclose the information

(A) When Required. On timely motion, the court for the district where until the claim is resolved; must take reasonable steps to retrieve the

compliance is required must quash or modify a subpoena that: information if the party disclosed it before being notified; and may prompt

(i) fails to allow a reasonable time to comply; present the information under seal to the court for the district where

(ii) requires a person to comply beyond the geographical limits compliance is required for a determination of the claim. The person who

specified in Rule 45(c); produced the information must preserve the information until the claim is

(iii) requires disclosure of privileged or other protected matter, if no resolved.

exception or waiver applies; or

(iv) subjects a person to undue burden. (g) Contempt.

(B) When Permitted. To protect a person subject to or affected by a The court for the district where compliance is required—and also, after a

subpoena, the court for the district where compliance is required may, on motion is transferred, the issuing court—may hold in contempt a person

motion, quash or modify the subpoena if it requires: who, having been served, fails without adequate excuse to obey the

(i) disclosing a trade secret or other confidential research, subpoena or an order related to it.

development, or commercial information; or

ICR pare om □□□ □□

For access to subpoena materials, see Fed. R. Civ. P. 45(a) Committee Note (2013).

Exhibit A

DEFINITIONS AND INSTRUCTIONS

1. “Action” refers to the above-captioned action and related actions: Aviles v. S&P

Global, Inc., Case No. 1:17-cv-02987-JPO-KHP; Benedetto v. ATC Realty Fifteen, Inc., Case No.

1:17-cv-06087-JPO-KHP; Acebedo v. ATC Realty Fifteen, Inc., Case No. 1:17-cv-07034-JPO-

KHP; Alvarez v. ATC Realty Fifteen Inc., Case No. 1:18-cv-00128-JPO-KHP; and Areco v. ATC

Realty Fifteen, Inc., Case No. 1:18-cv-02416-JPO-KHP.

Di “Document” refers to all items subject to discovery under Rule 34 of the Federal

Rules of Civil Procedure, and includes, without limitation, the complete originals and all non-

identical copies, whether different from the originals by reason of any notation made on such

copies or otherwise, whether written, graphic, pictorial, photographic, mechanical, taped,

electronic, computerized or otherwise, now or formerly in your possession, custody or control. The

term “Document” shall specifically include electronically stored information (“ESI”) such as, but

not limited to, email, text messages, instant messages, direct messages, social media posts, tweets,

any documents created on a computer or other electronic device, any data residing on a storage

medium, including, but not limited to, hard drives (desktop, laptop or external), servers, jump

drives, hand held drives, iPhones, iPads, iPods, Blackberries, mobile phones or smart phones, CDs

and DVDs and any sound or tape recording. The requesting party reserves the right to require the

producing party to produce any ESI or documents in native format. The meaning of the word

“document” also includes voice recordings and reproductions and film impressions of any of the

aforementioned writings, as well as copies of documents which are not identical duplicates of the

originals and copies of documents of which the originals are not in your possession, custody or

control. In case originals or original non-identical copies are not 4 available, “Document” includes

copies of originals or copies of non-identical copies, as the case may be.

3. “Communication” (with respect to persons and with respect to documents), have

the same meanings as set forth in Rule 26.3 of the Local Rules.

4. “Concerning” means relating to, referring to, describing, evidencing or

constituting.

3s “Governmental Entity” refers to any national or foreign governmental, law

enforcement, or regulatory agency, committee, or any division or agent thereof.

6. “HBM” refers to HBM Services B.V., HBM Services N.V., HBM B.V.I. Ltd., and

HBM Fund Services B.V., who performed services for Lifetrade as the Funds’ Administrator and

as the Funds’ Director.

7. “KPMG” refers to KPMG Accountants B.V. and KPMG Tax and Legal Services,

both based in Curacao, including any directors, officers, employees, agents, corporate parent,

subsidiaries, and successor(s) who provided independent auditing of Lifetrade’s annual financial

statements and other services to the Lifetrade Entities during the Relevant Time Period.

8. “L_ifetrade Entities” refers to Defendants Lifetrade Fund, B.V., LTrade Plus Ltd.,

LTrade Fixed Capital (BVI) Ltd., Lifetrade Management Company, LLC, Lifetrade Management

Company, N.V., Lifetrade Asset Management, N.V., Lifetrade Life Settlements Limited, LT

Investments, Inc., Portsmouth Settlement Company I, LLC, Portsmouth Securities Limited,

LTrade Plus Ltd., LTrade Fixed Capital (BVI) Ltd., TMF Curacao N.V., Roy G. Smith, and John

Marcum, including any directors, officers, employees, agents, corporate parent, subsidiaries, and

successor(s).

9. “Tifetrade Funds” refers to the Lifetrade Fund, B.V., LTrade Plus Ltd. and LTrade

Fixed Capital (BVI) Ltd. including any directors, officers, employees, agents, corporate parent,

subsidiaries, and successor(s).

10. “Lifetrade Portfolio of Policies” refers to the life insurance policies underlying the

Lifetrade Funds and acquired by Wells Fargo through the Settlement Agreement. As used herein,

any request to Identify life insurance policies shall mean each and every insurance policy in the

Lifetrade Portfolio of Policies acquired by Wells Fargo through the Settlement Agreement.

11. “Lifetrade Underwriters” refers to ITM Twentyfirst, LLC including any directors,

officers, employees, agents, corporate parent, subsidiaries, and successor(s).

i. “Meeting” or “meetings” means the contemporaneous presence, telephonic or

electronic connection among natural persons, whether or not such presence was by chance or pre-

arranged and whether or not the meeting was formal or informal or occurred in connection with

some other activity.

13. “Milliman, Inc.” refers to Milliman, Inc. a valuation agent hired to provide an

ongoing, independent valuation of the Lifetrade portfolio of policies.

14. “Person” is defined as any natural person or any legal entity, including, without

limitation, any business or governmental entity or association.

15. “Settlement Agreement” refers to the August 14, 2012 settlement agreement (and

all amendments or addendums thereto) by and among LT Opportunity Trust, Lifetrade Asset

Management N.V., The Lifetrade Fund B.V., LT Investments, Inc., Lifetrade Settlements Limited,

ATC Realty Fifteen, Inc., Wells Fargo Securities LLC, and Wells Fargo Bank, N.A.

16. “S&P” refers to Defendant S&P Global, Inc., including any directors, officers,

employees, agents, corporate parent, subsidiaries, and successor(s)

if, “Wells Fargo” refers to Defendants ATC Realty Fifteen. Inc., Wells Fargo Bank,

N.A., Wells Fargo Bank Northwest, N.A. (n/k/a Wells Fargo Trust Company, N.A.), and Wells

Fargo Delaware Trust Company, including any directors, officers, employees, agents, corporate

parent, subsidiaries, and successor(s).

18. “Wachovia” refers to Wachovia Bank, N.A. including any directors, officers,

employees, agents, corporate parent, subsidiaries, and successor(s).

19. “You” or “Your” means the Law Firm to whom this FRCP Rule 36(b) Notice of

Deposition is addressed, and all other persons acting on and/or purporting to act on their behalf,

singularly or jointly, including but not limited to employees, representatives, and agents.

20. Marking and Arrangement. The Documents produced in response to this request

shall be marked and arranged in such a way as to indicate clearly the request to which each such

document is responsive.

21. Scope. These requests encompass all information and Documents in Your custody,

possession or control, whether or not such information was prepared by or for You. Information

and Documents within Your custody, possession or control include information and Documents

that You have a legal right to obtain, regardless of their source or present location.

22. Privilege or Immunity from Production. To the extent that any Documents are not

produced on the basis of a claim of privilege or immunity:

(a) submit a list identifying each such Document,

(b) identify the nature of the privilege (including work product) which is being claimed;

and

of privilege or immunity is based.

For these purposes, “identify” shall mean in the case of a Document, to state the Document’s date,

its author, its recipient or the person for whom it was prepared, its present location or custodian, a

summary of its contents and any other information necessary to render the Document

distinguishable from all others and subject to ready location.

23. Destroyed Materials. If any Documents requested herein were at one time in Your

possession, custody or control, but have since been lost, discarded or destroyed, the Documents so

lost, discarded or destroyed shall be identified as completely as possible, including, without

limitation, the following data: date of disposal, manner of disposal, reason for disposal, person

authorizing the disposal and the person disposing of the Document.

24. Incomplete Information. If You contend that no information or Documents exist

relating to all or part of a request, state this contention and respond as fully as possible to the

portions of the request for which information or Documents exist. Additionally, if any of the

requested information cannot be produced in full, it shall be produced to the maximum extent

possible, and You shall specify the reasons for the inability to produce the remainder.

20: Grammatical Points. All singular nouns shall include the plural, all plural nouns the

singular, all present-tense verbs the past tense, all male genders the neuter and female genders, and

vice versa. Additionally, the connectives “and” and “or” shall be construed either disjunctively or

conjunctively as necessary to bring within the scope of the Document requests all responses that

might otherwise be construed to be outside of its scope. Similarly, the terms “any,” “all,” and

“each” shall be construed to bring within the scope of the Document requests all responses that

might otherwise be construed to be outside of its scope.

26. Objections. If any Document request, definition or instruction is objected to in

whole or in part, specify all grounds on which the objection rests. Respond to all portions of each

such request to which no objection is asserted. In addition, state whether any responsive

information has been omitted from a response or whether, and in what way, the search for

responsive information has been delimited or circumscribed on the basis of any such objection.

27. Ambiguities. If in answering any Document request You encounter any ambiguity

in construing either the request or a definition or instruction relevant to that request, set forth the

matter deemed ambiguous and the construction selected or used in answering the request.

28. E-mails. E-mails should be produced as single-page tiff images and corresponding

document-level text files. The images should be produced with an Opticon .opt load file and a

Concordance .dat file for the metadata (using Concordance standard delimiters). E-mail

attachments shall be handled according to the provisions below applicable to loose electronic

documents. The following metadata should be produced for each e-mail: Begin Bates, End Bates,

confidentiality designation, to, from, cc, bec, date sent, date received, subject, number of

attachments, begattach, endattach and custodian. For any document that is redacted, the producing

party shall withhold any metadata that is the subject of the redaction, and provide OCR of the

produced image as redacted.

29. Electronic Documents. Word and other electronic documents shall be produced as

single-page tiff images and corresponding document-level text files with an Opticon .opt load file

and Concordance .dat file for the metadata. Load files shall include the following metadata: Begin

Bates, End Bates, confidentiality designation, author, source, date created, last modified date, and

original filename. If a document does not contain extractable text, the producing party shall

provide OCR for that document. For any document that is redacted, the producing party shall

withhold any metadata that is the subject of the redaction, and provide OCR of the produced image

as redacted.

30. Production of ESI in Native Format. All Excel, database, audio or video files shall

be produced natively. Native files shall be produced with a bates number. The native file should

also be produced with a placeholder tiff image and an Opticon .opt load file and Concordance .dat

file for accompanying metadata and placeholder image links. Load files shall include the following

metadata: Begin Bates, End Bates, confidentiality designation, author, source, date created, last

modified date, and original filename. The placeholder image should be branded with the bates

number and any confidential branding.

31. Hard Copy Documents. Parties shall produce hard copy documents as singlepage

tiff images and corresponding document-level text files with an Opticon .opt load file and 10

Concordance .dat file for the metadata. The following metadata should also be produced: Begin

Bates, End Bates, confidentiality designation, and source. If a document does not contain

extractable text, the producing party shall provide OCR for that document. For any document that

is redacted, the producing party shall withhold any metadata that is the subject of the redaction,

and provide OCR of the produced image as redacted.

DOCUMENTS OR THINGS TO BE PRODUCED

1. Any and all documents, files, memoranda or other materials identifying all persons

employed by or affiliated with You who participated in any meetings or business

dealings, at any time, concerning Roy Smith, John Marcum, any Lifetrade Entity, the

Lifetrade Portfolio of Policies, and/or any Lifetrade Underwriter.

2. Any and all documents, files, memoranda or other materials referring or relating to

your representation of Lifetrade Entities, Portsmouth, and or Roy Smith.

3. The negotiation, drafting and signing of the 2012 Settlement Agreement, and each and

every provision of the Settlement Agreement including but not limited to the provision

prohibiting Lifetrade Management from revealing Wells Fargo’s motivations to

Lifetrade shareholders or investors.

4. The original, executed and/or draft versions, including amendments and modifications

of:

a. The Nondisclosure Agreement related to Wells Fargo’s acquisition of the

Lifetrade Portfolio;

b. The March 25, 2011 reorganization of the Lifetrade Fund. BV involving

Lifetrade Life Settlements Ltd.; and

c. The Settlement Agreement of August 14, 2012.

5. Any and all documents, files, memoranda or other materials referring or relating to

meetings and/or communications concerning the Lifetrade Funds, Lifetrade Entities,

and/or Lifetrade Portfolio of Policies between or among You, Wells Fargo, and any

other person or entity, including but not limited to:

a. Roy Smith, or any person associated with Roy Smith;

b. S&P, or any person associated with S&P;

c. Wells Fargo, or any person associated with Wells Fargo; and

d. Any Lifetrade Entity.

6. Any and all documents, files, memoranda or other materials referring or relating to

meetings and/or correspondence between or among you and any third party, including

but not limited to: Smith, Marcum, anyone affiliated with Lifetrade, any Plaintiff,

investor or broker, any bank or lending institution, or anyone else regarding the

Lifetrade Settlement Agreement of 2012.

7. Any and all documents, files, memoranda or other materials referring or relating to

meetings and/or correspondence with Smith or anyone else affiliated with any Lifetrade

Entity, and You after the execution of the Settlement Agreement in August 2012.

8. Any and all documents, files, memoranda or other materials referring or relating to

meetings and/or correspondence between or among you and any third party, including

but not limited to: Smith, Marcum, anyone affiliated with Lifetrade, any Plaintiff,

investor or broker, any bank or lending institution, or anyone else concerning the

Shareholder Meeting in May 2012 and any communications with investors in January

through May 2012.

9. Your document retention policies relevant to this action.

Dated: August 12, 2022

Respectfully submitted,

/s/ Peter A. Kraus

Peter A. Kraus

Charles Siegel (pro hac vice)

: WATERS, KRAUS & PAUL

3141 Hood Street, Suite 700

Dallas, TX 75219

Telephone: (214) 357-6244

Michael Armitage (pro hac vice)

Jillian Rice-Loew (pro hac vice)

222 N Pacific Coast Highway

El Segundo, CA 90245

Telephone: (310) 414-8146

Steven Phillips

Diane Paolicelli

Victoria Phillips

Marc C. Gorrie (pro hac vice)

PHILLIPS &PAOLICELLI, LLP

747 Third Avenue, 6th Floor

New York, NY 10017

Telephone: (212) 388-5100

Richard L. Arnold (pro hac vice)

Richard Arnold Law

100 Crescent Court, 7" Floor

Dallas, TX 75201

Telephone (214) 459-2845

Attorneys for Plaintiff

EXHIBIT B

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

-------------------------------------------------------------X

IN RE LIFETRADE LITIGATION:

This Document Relates to All Actions, Case Number 1:17-cv-02987-JPO-KHP

Plaintiff.

-------------------------------------------------------------X

NON-PARTY WITHERS BERGMAN LLP’S RESPONSES AND OBJECTIONS TO

SUBPOENA TO PRODUCE DOCUMENTS, ELECTRONICALLY STORED

INFORMATION, OR TANGIBLE THINGS IN A CIVIL ACTION

Pursuant to Rule 45 of the Federal Rules of Civil Procedure and the Civil Rules of the

United States District Court for the Southern District of New York, non-party Withers Bergman

LLP (“Withers”) for its responses to the subpoena served upon it by Plaintiffs in the case entitled

In Re Lifetrade Litigation (“Lifetrade”) (the “Subpoena”), states as follows:

ENUMERATED OBJECTIONS

1. Withers objects to the Subpoena on the grounds, and to the extent, that it is overly

broad and unduly burdensome especially because Withers is not a party to the underlying action,

and the Subpoena calls for the production of documents which are not material or necessary for

the prosecution or defense of this action and which are not proportional to the needs of the

action.

2. Withers objects to the Subpoena to the extent that it, or any part of it, is

argumentative, or based on assumptions, allegations, or premises which are false, inaccurate,

disputed, or not conceded. As a non-party to this action, Withers has no obligation to admit,

deny, or respond to any false, inaccurate, disputed or non-conceded assumption, allegations, or

premises embedded within any part of the Subpoena. In responding to the Subpoena, Withers

does not concede the validity of any assumption, allegation, or premise stated or embedded

within the Subpoena, and its responses should not be construed as a representation or admission

that Withers has any knowledge or information with respect to any of the allegations, defenses,

contentions of the parties, facts and/or circumstances of the underlying litigation.

3. Withers objects to the Subpoena to the extent it is vague and ambiguous.

4. Withers objects to the Subpoena to the extent that it seeks the production of

documents that are protected or immune from discovery, including, for example, documents

within the scope of the attorney-client privilege or the work-product privilege or immunity; or

documents which were prepared for, or in anticipation of, litigation; or documents protected by

the joint-defense or joint-prosecution privilege. Withers intends to, and does, claim privilege and

immunity with respect to all such documents. Withers will withhold from any production any

documents that may reveal information covered by any of these privileges. Any statement that

Withers will produce documents means that documents falling within this Enumerated

Objection, or any part of it, will not be produced. The inadvertent production of any document

which is privileged or otherwise immune from discovery shall not constitute a waiver of any

privilege or of any other ground for objecting to the discovery of such information or the subject

matter thereof. Any production by Withers of a document or documents subject to such privilege

or immunity is inadvertent, and Withers reserves the right to demand return of any such

document or documents.

5. Withers objects to the Subpoena, because and to the extent that the Subpoena

seeks documents which are, or may be, subject to a claim of privilege or immunity by Withers’

former clients, and/or by the estate of one of its former clients, Roy Smith, including, for

example, documents within the scope of the attorney-client privilege or the work-product

privilege or immunity; documents which were prepared for, or in anticipation of, litigation; or

documents protected by the joint-defense or joint-prosecution privilege. Withers further objects

to the Subpoena because (as Withers informed Plaintiffs after receipt of this Subpoena), on or

about September 18, 2020, Withers transferred its files on this matter, via Sharefile, to John M.

Sheftall, Esq. counsel for the estate of Withers’ former client, Roy Smith. For these reasons,

during the initial meet-and-confer calls between Plaintiffs and Withers, it was agreed that

Plaintiffs’ counsel would seek a waiver of privilege from Withers’ former clients and/or would

seek to receive Withers’ (transferred) files directly from Mr. Sheftall’s firm, rather than imposing

discovery costs on Withers, which is not a party to this action. To the best of Withers’

knowledge, such privilege waiver has not yet been obtained, and in any event, no such waiver

has been delivered to Withers. To the best of Withers’ knowledge, Plaintiffs’ counsel has not

yet made any efforts to obtain the transferred files from Mr. Sheftall’s firm. Under these

circumstances, and given that Withers is not a party to this action, Withers maintains that these

issues should be resolved between Plaintiffs and Withers’ former clients before Withers is

required to produce any responsive documents. To the extent that Withers believes that any

responsive document is subject to a claim of privilege or immunity by any of its former clients

and/or by the estate of any former client, Withers will withhold such document from production,

and Withers will withhold from any production any documents that may reveal information

covered by any of these privileges. Any statement that Withers will produce documents means

that documents falling within this Enumerated Objection, or any part of it, will not be produced.

The inadvertent production of any document which is privileged or otherwise immune from

discovery, shall not constitute a waiver of any privilege or of any other ground for objecting to

the discovery of such information or the subject matter thereof. Any production by Withers of a

document or documents subject to such privilege or immunity is inadvertent, and Withers

reserves the right to demand return of any such document or documents.

6. Withers objects to the Subpoena to the extent it calls for the production of

documents or compilations that mention, or refer to, or relate to, multiple clients, and thus are

documents on which its other clients or former clients (other than the former clients associated

with the Roy Smith matters) could claim privilege (in whole or in part), or which contain

confidential information of other clients, which has no bearing on this action, and which should

not be produced to Plaintiffs, and is thus immune from production. To the extent that Withers

believes that any responsive document is subject (in whole or in part) to a claim of privilege by

any other client or former client or is a confidence of any client or former client, which is

unrelated to this case, or to the parties in this case, Withers will either withhold such document

from production or redact the information that belongs to such other client. Withers will

withhold from any production, or redact any documents that may reveal information covered by

any of these privileges or immunities. Any statement that Withers will produce documents

means that documents falling within this Enumerated Objection, or any part of it, will not be

produced. The inadvertent production of any document which is privileged, or immune from

discovery as a client confidence unrelated to this case, or on any other basis, shall not constitute

a waiver of any privilege or immunity or of any other ground for objecting to the discovery of

such information or the subject matter thereof. Any production by Withers of a document or

documents subject to such privilege or immunity is inadvertent, and Withers reserves the right to

demand return of any such document or documents.

7. Withers objects to the Subpoena, because and to the extent that the Subpoena

seeks information which contains “Protected Health Information” for purposes of the federal

Health Information Technology for Economic and Clinical Health Act (the “HITECH statute”),

and/or medical information otherwise immune from disclosure. Absent a waiver from its former

clients of any protections offered by the HITECH statute, or any similar statute, Withers will

withhold from any production any documents that may reveal information covered by the

HITECH, or any similar statute. Any statement that Withers will produce documents means that

documents falling within this Enumerated Objection, or any part of it, will not be produced. The

inadvertent production of any document subject to this Enumerated Objection shall not constitute

a waiver of any privilege or of any other ground for objecting to the discovery of such

information or the subject matter thereof. Any production by Withers of a document or

documents subject to this Enumerated Objection is inadvertent, and Withers reserves the right to

demand return of any such document or documents.

8. Withers objects to the Subpoena to the extent that the request for “all” documents

concerning a specific subject or topic is unreasonable and unduly burdensome in this context,

especially because Withers is a non-party.

9. Withers objects to the Subpoena to the extent that it calls for the production of

documents that are confidential, proprietary, and/or invade the privacy or confidences of Withers

and/or its current and/or former clients.

10. Withers objects to the Subpoena to the extent that the documents sought are

unreasonably cumulative or duplicative or already in Plaintiffs’ possession.

11. Withers objects to the Subpoena to the extent it seeks production of documents

that are publicly available and/or available from a more logical source, including the parties to

the action, that would be more convenient, less burdensome, and less expensive, or to the extent

that the request purports to require Withers to make a burdensome and expensive search, which

outweighs its likely benefit, especially because Withers is a non-party.

12. Withers objects to the Subpoena to the extent it seeks documents without a date

range.

13. Withers objects to the Subpoena to the extent it purports to impose obligations on

Withers beyond those applicable under the Federal Rules of Civil Procedures, the Local Rules,

and any other applicable law and rules.

14. Withers’ failure to object on a particular ground or grounds shall not be construed

as a waiver of its right to object on any other ground or grounds in the future, and Withers

reserves the right to amend and/or supplement its Responses and Objections consistent with

further investigation.

TERMS AND CONDITIONS

Subject to, limited by and without waiving the foregoing Enumerated Objections and the

Specific Objections stated below, Withers asserts the following terms and conditions:

1. Any statement that Withers will produce documents, and any objection or lack

thereof in response to an individual request (each a “Request”), definition, or instruction is not a

representation that any responsive, non-privileged documents actually exist within Withers’

custody, possession, or control but rather that Withers will make a good faith and reasonable

search and attempt to ascertain whether such documents exist.

2. Any statement that Withers will produce documents “subject to” or “limited by”

an objection or objections means that the production may be limited by the objection or

objections, and that documents falling within the objection or objections may not be produced.

3. Inadvertent production or disclosure by Withers of any information or

document(s) containing information that is confidential, privileged, prepared in anticipation of

litigation or for trial, or is otherwise immune from discovery, shall not constitute a waiver of any

such privilege or of any ground for objection to discovery with respect to such document(s),

information or the subject matter thereof, or the information contained therein, or of Withers’

and/or its former clients’, and/or the estate of its former clients’ rights to retrieve the document(s)

or information and/or to object to use of any such document(s) or information during any

subsequent proceeding or trial in this action.

4. Withers reserves the right to supplement, alter, amend, and update its responses if

necessary or appropriate.

SPECIFIC OBJECTIONS AND RESPONSES

TO DOCUMENT REQUESTS

The foregoing Enumerated Objections and the foregoing Terms and Conditions apply to

each of the specific requests and are incorporated by reference in each of the specific responses

and objections. In response to certain requests, Withers may restate one or more of its objections

for clarity or emphasis. The lack of such specific references and/or the provision of specific

responses and objections stated below, however, are not intended as, and shall not be deemed to

be, a waiver, either in whole or in part, of any of the foregoing Enumerated Objections or Terms

and Conditions and, subject to and without waiving them, Withers further responds and objects

to each individual request as follows:

DOCUMENT REQUEST 1

Any and all documents, files, memoranda or other materials identifying all persons employed by or

affiliated with You who participated in any meetings or business dealings, at any time, concerning

Roy Smith, John Marcum, any Lifetrade Entity, the Lifetrade Portfolio of Policies, and/or any

Lifetrade Underwriter.

RESPONSE TO REQUEST 1

Withers repeats and restates Enumerated Objections 1-13 as if fully set forth herein. In

addition to its Enumerated Objections, Withers objects to this Request as being vague and

ambiguous, potentially argumentative vastly overbroad and unduly burdensome, especially in

light of the fact that Withers is a non-party, and that demand for “Any and all documents, files,

memoranda, or other materials,” which could identify any persons who participated in any

meeting or business dealings concerning various entities is likely to encompass a large number of

documents, which merely mention certain people, and read literally could encompass every

document in Withers’ protection in any way related to the named persons or entities, regardless

of whether or not they are related to this action. Withers further objects to the Request on the

ground that it is vague and ambiguous in that its unclear whether Plaintiffs seek information

about the identity of Withers personnel who participated in these activities in the court of the

representation of Withers’ former clients, or whether Plaintiffs seek information about Withers

personnel (if any) who engaged in business dealings with the listed entities outside of a

representative capacity. Withers further objects to this Request to the extent that it seeks

documents and communications that are protected from disclosure by the attorney-client

privilege, attorney work product doctrine, or any other privilege or immunity from production.

Subject to, limited by, and without waiver of its Enumerated and Specific Objections, Withers

asks to meet and confer with Plaintiffs’ counsel to determine the meaning of this Request, and

(depending on what Plaintiffs meant) whether a response can be limited to production of a

limited set of documents sufficient to identify the persons at issue, rather than any and all

documents that happen to mention the name of any such person, to the extent that can be done

without violation of any privilege or immunity belonging to Withers’ former clients.

DOCUMENT REQUEST 2

Any and all documents, files, memoranda or other materials referring or relating to your

representation of Lifetrade Entities, Portsmouth, and or Roy Smith.

RESPONSE TO REQUEST 2

Withers repeats and restates Enumerated Objections 1-13 as if fully set forth herein. In

addition to all of its Enumerated Objections, Withers objects to this Request, as being vague and

ambiguous and potentially vastly overly broad and unduly burdensome, as it appear to demand

all of Withers’ files, documents, or communications concerning its former clients, regardless of

privilege or immunity, and regardless of whether or not such files, documents, or

communications have any bearing on any of the claims or defenses of any party to this action, or

on the subject matter of the action, and it thus palpably improper and overbroad. Withers further

objects to this Request to the extent that it seeks documents and communications that are

protected from disclosure by the attorney-client privilege, attorney work product doctrine, or any

other privilege or immunity from production. As a non-party to this action, Withers should not

be put to such unreasonable burden. Based on its Enumerated and Specific Objections, Withers

will not search for or produce documents responsive to this Request.

DOCUMENT REQUEST 3

The negotiation, drafting and signing of the 2012 Settlement Agreement, and each and every

provision of the Settlement Agreement including but not limited to the provision prohibiting

Lifetrade Management from revealing Wells Fargo's motivations to Lifetrade shareholders or

investors.

RESPONSE TO REQUEST 3

Withers repeats and restates Enumerated Objections 2, 3, 4, 5, 6, 8, 9, 10, 11, and 13 as if

fully set forth herein. In addition to these Enumerated Objections, Withers objects to this

Request as being vague, ambiguous, overly broad, unduly burdensome, and not proportional to

the needs of the action, and to the extent it seeks documents and communications that are already

in the possession, custody, and control of the parties to the action. Withers further objects to this

Request as vague and ambiguous. Withers further objects to this Request to the extent that it

seeks documents and communications that are protected from disclosure by the attorney-client

privilege, attorney work product doctrine, or any other privilege or immunity from production.

Subject to, limited by, and without waiving any of the foregoing objections, Withers will

produce documents responsive to this Request, to the best of Withers’ ability to interpret it, and

to the extent any such non-privileged documents exist within its custody, possession, or control,

and are located after a reasonable search.

DOCUMENT REQUEST 4

The original, executed and/or draft versions, including amendments and modifications of:

a. The Nondisclosure Agreement related to Wells Fargo's acquisition of the Lifetrade

Portfolio;

b. The March 25, 2011 reorganization of the Lifetrade Fund. BV involving Lifetrade Life

Settlements Ltd.; and

c. The Settlement Agreement of August 14, 2012.

RESPONSE TO REQUEST 4

Withers repeats and restates Enumerated Objections 2, 3, 4, 5, 6, 8, 9, 10, 11, and 13 as if

fully set forth herein. In addition to these Enumerated Objections, Withers objects to this

Request as being vague, ambiguous, overly broad, unduly burdensome, and not proportional to

the needs of the action, and to the extent it seeks documents and communications that are already

in the possession, custody, and control of the parties to the action. Withers further objects to this

Request to the extent that it seeks documents and communications that are protected from

disclosure by the attorney-client privilege, attorney work product doctrine, or any other privilege

or immunity from production. Withers further objects to this Request as vague and ambiguous.

Subject to, limited by, and without waiving any of the foregoing objections, Withers will

produce documents responsive to this Request, to the best of its ability to interpret it, to the

extent any such non-privileged documents exist within its custody, possession, or control, and

are located after a reasonable search.

DOCUMENT REQUEST 5

Any and all documents, files, memoranda or other materials referring or relating to meetings

and/or communications concerning the Lifetrade Funds, Lifetrade Entities, and/or Lifetrade

Portfolio of Policies between or among You, Wells Fargo, and any other person or entity,

including but not limited to:

a. Roy Smith, or any person associated with Roy Smith;

b. S&P, or any person associated with S&P;

c. Wells Fargo, or any person associated with Wells Fargo; and

d. Any Lifetrade Entity.

RESPONSE TO REQUEST 5

Withers repeats and restates Enumerated Objections 2, 3, 4, 5, 6, 8, 9, 10, 11, and 13 as if

fully set forth herein. In addition to these Enumerated Objections, Withers objects to this

Request as being vague, ambiguous, overly broad, unduly burdensome, and not proportional to

the needs of the action, and to the extent it seeks documents and communications that are already

in the possession, custody, and control of the parties to the action. Withers further objects to this

Request to the extent that it seeks documents and communications that are protected from

disclosure by the attorney-client privilege, attorney work product doctrine, or any other privilege

or immunity from production. Withers further objects to this Request as vague and ambiguous,

in that it requires Withers to determine whether certain people were associated with other people,

which is information not necessarily within Withers’ possession. Subject to, limited by, and

without waiving any of the foregoing objections, Withers will produce documents responsive to

this Request, to the best of its ability to interpret it, to the extent any such non-privileged

documents exist within its custody, possession, or control, and are located after a reasonable

search.

DOCUMENT REQUEST 6

Any and all documents, files, memoranda or other materials referring or relating to meetings

and/or correspondence between or among you and any third party, including but not limited to:

Smith, Marcum, anyone affiliated with Lifetrade, any Plaintiff, investor or broker, any bank or

lending institution, or anyone else regarding the Lifetrade Settlement Agreement of 2012.

RESPONSE TO REQUEST 6

Withers repeats and restates Enumerated Objections 2, 3, 4, 5, 6, 8, 9, 10, 11, and 13 as if

fully set forth herein. In addition to these Enumerated Objections, Withers objects to this

Request as being vague, ambiguous, overly broad, unduly burdensome, and not proportional to

the needs of the action, and to the extent it seeks documents and communications that are already

in the possession, custody, and control of the parties to the action. Withers further objects to this

Request to the extent that it seeks documents and communications that are protected from

disclosure by the attorney-client privilege, attorney work product doctrine, or any other privilege

or immunity from production. Withers further objects to this Request as vague and ambiguous

with respect to the term “any third party,” and in that it requires Withers to determine whether

certain people were affiliated with other people, which is information not necessarily within

Withers’ possession. Subject to, limited by, and without waiving any of the foregoing

objections, Withers will produce documents responsive to this Request, to the best of its ability

to interpret it, to the extent any such non-privileged documents exist within its custody,

possession, or control, and are located after a reasonable search.

DOCUMENT REQUEST 7

Any and all documents, files, memoranda or other materials referring or relating to meetings

and/or correspondence with Smith or anyone else affiliated with any Lifetrade Entity, and You

after the execution of the Settlement Agreement in August 2012.

RESPONSE TO REQUEST 7

Withers repeats and restates Enumerated Objections 1-13 as if fully set forth herein. In

addition to all of its Enumerated Objections, Withers objects to this Request, as being vague and

ambiguous and potentially vastly overly broad and unduly burdensome, as it appear to demand

all of Withers’ files, documents, or communications concerning its former clients, after a specific

date, regardless of privilege or immunity, and regardless of whether or not such files, documents,

or communications have any bearing on any of the claims or defenses of any party to this action,

or on the subject matter of the action, and it thus palpably improper and overbroad. Withers

further objects to this Request to the extent that it seeks documents and communications that are

protected from disclosure by the attorney-client privilege, attorney work product doctrine, or any

other privilege or immunity from production. As a non-party to this action, Withers should not

be put to such unreasonable burden. Subject to, limited by, and without waiver of its

Enumerated and Specific Objections, Withers asks to meet and confer with Plaintiffs’ counsel to

determine the meaning, and potential additional limitations necessary to render this Request

reasonable.

DOCUMENT REQUEST 8

Any and all documents, files, memoranda or other materials referring or relating, to meetings

and/or correspondence between or among you and any third party, including but not limited to:

Smith, Marcum, anyone affiliated with Lifetrade, any Plaintiff, investor or broker, any bank or

lending institution, or anyone else concerning the Shareholder Meeting in May 2012 and any

communications with investors in January through May 2012.

RESPONSE TO REQUEST 8