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Home My WebLink About07-1152 February Term, 2007 FOX ROTHSCHILD LLP BY: Gregory B. Williams and Beth L. Domenick, Esquires Identification Numbers: 76450 and 93591 2000 Market Street, 10th Floor Philadelphia, P A 19103 (215) 299-2000 Attorneys for Petitioners CHILDREN'S WISH FOUNDATION INTERNATIONAL, INC., Plaintiff, CUMBERLAND COUNTY COURT OF COMMON PLEAS TRIAL DIVISION v. MAYER HOFFMAN McCANN, et aI., Defendants. No. 0'"1 - II ~ Ct..:L'-r9Lh--t PETITION OF DEFENDANTS FOR ISSUANCE OF SUBPOENA TO TAKE DEPOSITIONS Pursuant to Pa.R.C.P. 234.1 and 42 Pa.C.S. S 5326, the issuance of a subpoena is requested on the following grounds. 1. Petitioners are Mayer Hoffman McCann, et aI., defendants in an action currently pending in the Circuit Court of Jackson County, Missouri, Sixteenth Judicial Circuit, at Kansas City, captioned Children's Wish Foundation International. Inc. v. Mayer Hoffman McCann, et aI., Case No. 0516-CV-19973. 2. Petitioners, by and through their Missouri counsel, issued a Notice of Deposition Duces Tecum for the deposition of the Custodian of Records, Reager & Adler, PC, 2231 Market Street, Camp Hill, Pennsylvania, 17011 to be held on Wednesday, March 21, 2007, at 10:00 a.m., before a court reporter, at the offices of Independent Court Reporting, 11 Roadway Drive, Carlisle, Pennsylvania, 17015. A true and correct copy of the Notice of Deposition Duces Tecum is attached hereto as Exhibit "A". 3. On February 7, 2007, a Commission To Take Out of State Deposition was issued by the Circuit Court of Jackson County, Missouri, Sixteenth Judicial Circuit at Kansas City, was issued to the Court of Common Pleas of Cumberland County requesting that this Court issue a subpoena to compel the deponent to attend and produce certain documents at the deposition noticed for March 21, 2007. The Original Commission to Take Out of State Deposition is attached hereto as Exhibit "B". 4. Petitioners require the issuance of a subpoena by the Court to compel the deponent, the Custodian of Records of Reager & Adler, PC, to attend and produce the documents listed in Exhibit A to the Notice of Deposition Duces Tecum at or in advance of the deposition noticed for March 21,2007, at 10:00 a.m., at the office ofIndependent Court Reporting, 11 Roadway Drive, Carlisle, Pennsylvania, 17015. WHEREFORE, Petitioners respectfully request that the Court direct the Prothonotary to issue a subpoena duces tecum directed to the Custodian of Records, Reager & Adler, PC, 2231 Market Street, Camp Hill, Pennsylvania, 17011 for a deposition to be held on Wednesday, March 21, 2007, at 10:00 a.m., before a court reporter, at the offices of Independent Court Reporting, Attorneys for Petitioners 11 Roadway Drive, Carlisle, Pennsylvania, 17015. The deponent should be required to produce at or in advance ofthe deposition the documents listed in Exhibit A to the Notice of Deposition Duces Tecum. Respectfully submitted, ~ G GO B. WILLIAMS, ESQUIRE BETH 1. DOMENICK, ESQUIRE F ox Rothschild LLP 2000 Market Street, loth Floor Philadelphia, P A 19103 Phone: (215) 299-2000 Date: March 1, 2007 , m x ~ c: ;::+ )> 0< hlhi+- A c:t: - ;Q .s:::. x ll.J IN THE CIRCUIT COURT OF JACKSON COUNTY, MISSOURI SIXTEENTH JUDICIAL CIRCUIT AT KANSAS CITY CHILDREN'S WISH FOUNDATION INTERNATIONAL, INC. ) ) ) ) ) ) ) ) ) Case No. 0516-CV-19973 Plaintiff, v. MAYER HOFFMAN McCANN, et ai., Defendants. NOTICE OF DEPOSITION DUCES TECUM TO: Arthur A. Benson II Jamie Kathryn Lansford Arthur Benson & Associates 4006 Central Avenue P.O. Box 119007 Kansas City, MO 64171-9007 Attorneys for Plaintiff PLEASE TAKE NOTICE that counsel for Defendants intend to serve a subpoena duces tecum to take the deposition of the custodian of records of Reager & Adler, PC, 2231 Market Street, Camp Hill, Pennsylvania, 17011. The deposition will commence at 10:00 a.m. on Wednesday, March 21, 2007, at the offices of Independent Court Reporting, 11 Roadway Drive, Carlisle, Pennsylvania, 17015. The deposition will be taken before a court reporter and will continue day to day until it is completed. Documents to be produced at or in advance of the deposition are listed below on Exhibit A. If produced in advance of the deposition, the documents shall be produced to the offices of Defendants' counsel, c/o John Aisenbrey, Stinson 7385656.1 By: ~) (UJ /- Respectfully submitted, STINSON MORRISON HECKER LLP John C. Aisenbrey Russell J. Keller STINSON MORRISON HECKER LLP 1201 Walnut Street, Suite 2800 Kansas City, MO 64106 Phone: 816-842-8600 Fax: 816-691-3495 ATTORNEYS FOR DEFENDANTS Certificate of Service I hereby certify that on February 2, 2007, the foregoing Notice Of Deposition Duces Tecum was served by D.S, mail, postage prepaid, upon: Arthur A. Benson II Jamie Kathryn Lansford Arthur Benson & Associates 4006 Central Avenue P.O. Box 119007 Kansas City, MO 64171-9007 Attorneys for Plaintiff (&J (a4 Attorney for Defendants 2 7385656.1 EXHIBIT A DEFINITIONS A. The terms "all" and "each" shall both be construed as all and each. B. The term "communications" means any oral or written utterance, notation, statement, motion or action that conveys or attempts to convey information, by or through any means or medium, including but not limited to correspondence, letters, memoranda, telecopy, telephonic, facsimile, or wire transmissions, e-mail or voice mail messages, conversations, dialogs, discussions, interviews, consultations, agreements, understandings, and attempted understandings. C. The term "concerning" means relating to, referring to, reflecting, describing, evidencing, or constituting. D. The term "CWFI" means Children's Wish Foundation International, Inc., along with its employees, attorneys, agents, and predecessors. E. The terms "Defendant" and "Defendants" mean Mayer Hoffman McCann, P.C. and/or CBIZ Accounting, Tax & Advisory of Kansas City, Inc., along with their respective employees, agents, and predecessors. F. The terms "document" and "documents" mean any written record of information (e.g., letters, typewritten memoranda or contracts, handwritten notes of meetings or telephone calls, diaries, checks, deposit slips, computer printouts, transcripts, drawings, design plans, etc.) or non-written record of information (e.g., video tapes, cassette tapes, photographs, graphs, maps, films, etc.), including but not limited to electronically stored information (e.g., computer files, diskettes, e-mail messages, etc.), of every type and description, however produced or reproduced in any form, whether draft, final, master, original, duplicate, copy, signed or unsigned, that is in your possession, custody, or control (including but not limited to items to 3 7385656.1 A. Reager shall produce documents in the manner that they are kept in the ordinary course of business. Documents attached to each other shall not be separated. B. Reager shall produce all responsive documents that are in its possession, custody, or control, or are in the possession, custody, or control of its predecessors, successors, corporate parents, subsidiaries, divisions or affiliates, or their respective officers, directors, agents, attorneys, accountants, employees, partners, or other persons occupying similar positions or performing similar functions. C. Reager shall produce the original of each document described below, or if the original is not in Reager's possession, custody, or control, then a copy thereof, and in any event, all non-identical copies that differ from the original or from the other copies produced for any reason, including but not limited to the making of notes thereon. D. If Reager withholds any document on the ground of privilege or immunity, Reager shall state as to each such withheld document the following information: The nature of the privilege or immunity claimed, the facts upon which said claim of privilege or immunity is based, and a description of each purportedly privileged or immune document (including the date which you have or may obtain access), regardless of where located. Any document bearing notations, markings, or writings of any kind different from the original shall be treated as an original document. G. The term "Reager" means Reager & Adler, PC, its employees and partners, and its agents. H. The use of the singular includes the plural and vice versa. INSTRUCTIONS 4 7385656.1 2. All documents concerning any analysis, evaluation, or assessment of CWFI' s . . it was prepared, sent, and received; the identity of the persons preparing, sending, and receiving it; and the general subject matter of the document). E. Whenever Reager does not produce a document or produces it in redacted form, Reager shall so indicate on the document and state with particularity the reason or reasons it is not being produced in full and describe the portions of the document which are not being produced. F. If a document responsIve to these requests was at any time in Reager's possession, custody, or control but is no longer available for production, Reager shall (a) state as to each such document whether it is missing, lost, destroyed, or has otherwise been disposed of; and (b) describe the circumstances surrounding the disposition of the document and the date of its disposition. G. Unless otherwise specified, the time period for these requests is 1997 through 2005. DOCUMENTS TO BE PRODUCED Reager is requested to produce the following documents on or before March 21,2007: 1. CWFI. All documents concerning Reager's billing statements to and collections from accounting, auditing, internal controls, inventorying, gifts in kind, reconciliation of receipts, or record-keeping. 3. All documents concerning CWFI's financial statements, Internal Revenue Service Forms 990, and Forms BCO-10. 5 73856561 6 . . 4. All documents concerning any Defendant, including but not limited to documents that relate to work performed for CWFI by any Defendant. 5. All documents concerning any advice regarding, any assessment or analysis of, or any evaluation of an actual or potential legal claim against Defendants. 6. All documents concerning Reager's receipt, review, assessment, analysis, or evaluation of Defendants' workpapers or accounting documents for CWFI. 7. All documents that relate to CWFI or Defendants and concern (a) Nihill Riedley & Co. and its employees, including Ricardo Zayas; (b) Ten Eyck & Associates (or FTI Consulting, Inc.) and its employees; (c) Frank & Co. and its employees; (d) Gifts In Kind, International and its employees; (e) the broadcast network known as NBC and its employees; (f) GlassRatner Advisory & Capital Group LLC and its employees; or (g) Whitney Communications and its employees. 8. All documents concerning any communications from 1997 through 2005 between any employee or partner of Reager and (a) any employee or board member ofCWFI; (b) any attorney representing CWFI who was not employed by Reager; (c) any employee of any state regulatory agency or state regulatory body regarding CWFI; (d) any employee of Defendants. 9. All documents concerning any investigations, inquiries, requests, complaints, or regulatory actions involving CWFI by any state. 10. All documents concerning the action titled Commonwealth of Pennsylvania, Bureau of Charitable Organizations v. Children's Wish Foundation International, Inc., Docket No. 0012-98-00, File No. 2000-98-02634. 7385656. ] 7 11. All documents concerning the quality of, or the potential for improvement in, CWFI's accounting, auditing, internal controls, inventorying, reconciliation of receipts, or record-keeping. 7385656.1 IT )( ::J S ::l o b!,;1 h',t (3 IN THE CIRCUIT COURT OF JACKSON COUNTY, MISSOURI SIXTEENTH JUDICIAL CIRCUIT AT KANSAS CITY CHILDREN'S WISH FOUNDATION ) INTERNATIONAL, INe. ) ) Plaintiff, ) v. ) ) MAYER HOFFMAN McCANN, et aI., ) TO: WHEREAS, there is an action in the Circuit Court of Jackson County, Missouri, Sixteenth Judicial Circuit at Kansas City, entitled as above, and this Court is of the opinion that complete justice in the action caonot be served withont a snbpoena issuing and being served on the custodian of records for Reager & Adler, PC, within your jurisdiction, requiring the witness to produce certain documents and WHEREAS, this Court has determined that good cause exists for the oral deposition of the custodian of records for Reager & Adler, PC and for the production of certain documents in this case; THEREFORE, we request that, in the interest of justice, you issue a subpoena by your proper and usual process summoning the following witness: to appear before a duly appointed court reporter to give testimony and answer questions the custodian of records for Reager & Adler, PC, 2231 Market Street, Camp Hill, Pennsylvania, 17011 FEE - 7 2[u7 pertaining to documents to be produced in discovery of this ase und Dated: DB02/505782 0009/7432420.1 ~of:= Petition for Issuance ofSubpoeua was served upon the following via U.S. first class mail, I, Beth L. Domenick, bereby certify that a true and correct copy of the foregoing CERTIFICATE OF SERVICE postage pre-paid: Artuhur A. Benson II Jamie Kathryn Lansford Arthur Benson & Associates 4006 Central Avenue P.O. Box 119007 Kansas City, MO 64171-9007 Attorneys for Plaintiff Dated: March ~, 2007 11: a "0- '" i "'l 0 c::-.,) 0 c- C":J -n lrt ....-;- -.,J ::;: -I :c ..:.,.,!'''' m~ ~ ;::cI ~ "- I (i:" ~ ~ D N CJ ...0 f=' r " ,~;?,~ ~ '" ::It D - (sm ""0 ~ " c:.;~ C" <": _:0 b f"" -< ~ p {J iQ " I\.J ~ tt=. . D 0 - ..... ~ ~ ~ ~ ~ - P f9 C\ ~ {: y ~ ~\ MAR 07 2007 fY "1 CHILDREN'S WISH FOUNDATION INTERNATIONAL, INe., Plaintiff, CUMBERLAND COUNTY COURT OF COMMON PLEAS TRIAL DIVISION v. February Term, 2007 MA YER HOFFMAN McCANN, et aI., Defendants. No. 0'1 - II S':l. ~ (!.tv~L/~ ORDER AND NOW, this 1L.. day of rna..e,)c , 2007, upon consideration of Petition of Defendants for Issuance of Subpoena to Take Deposition, it is hereby ORDERED that the Prothonotary of Cumberland County shall issue a subpoena duces tecum directed to Custodian of Records, Reager & Adler, PC, 2231 Market Street, Camp Hill, Pennsylvania, 17011, directing his or her attendance at a deposition to be held at the offices of Independent Court Reporting, 11 Roadway Drive, Carlisle, Pennsylvania, 17015 on Wednesday, March 21,2007, at 10:00 a.m. The deposition will be taken before a court reporter and will continue day to day until it is completed. ./ BY THE COURT: _ / '/l~ 1. OF ZOD7 !{\I, 1(: ,- r:)l . . \.,.IV