non-party james p. king, accountant for dr. jerome swartz, memorandum in opposition to motion to...

8/18/2019 Non-Party James P. King, accountant for Dr. Jerome Swartz, Memorandum in Opposition to Motion to Compel Disc…

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Case 1:16-mc-00140-P1 Document 7 Filed 04/19/16 Page 1 of 6


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EXHIBIT A

Case 1:16-mc-00140-P1 Document 7-1 Filed 04/19/16 Page 1 of 5


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IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF TEXAS

HOUSTON DIVISION

THE WIMBLEDON FUND, SPC (CLASS TT), §

§Plaintiff, §

§

v. §

§

DAVID BERGSTEIN, JEROME SWARTZ, § Civil Action No. 4:15-cv-02193

AARON GRUNFELD, and KIARASH K. JAM, §

§

Defendants. §

DECLARATION OF JEROME “JERRY” SWARTZ

I, Jerome “Jerry” Swartz, Ph.D., declare as follows:

1. I am a Defendant in the above-captioned action. The statements in this

Declaration are from my personal, firsthand knowledge, and if called and sworn as a witness, I

could and would testify as follows.

2. I am a citizen and resident of New York, and intend to remain there. I was born

in 1940. I have lived, studied and worked in New York State my entire adult life.

3. I do not do business in Texas.

4. I do not own, lease or control any real or personal property in Texas.

5. I have never paid real or personal property taxes in Texas.

6. I do not maintain bank accounts in Texas.

7. I do not employ any employees in Texas.

8. I earned a Ph.D. in electrical engineering from Polytechnic University in

Brooklyn, New York. One of my professors was Professor Leonard Bergstein; Professor

Bergstein and I became friends.



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9. Among my professional achievements, I patented various technologies relating to

hand-held laser bar code scanners now ubiquitous in consumer retail stores and other

applications. I co-founded Symbol Technologies in 1973 on Long Island, New York; Symbol

was a leader in handheld laser bar code scanning devices and related technologies. Symbol was

acquired by Motorola Corporation in 2007.

10. In 1994, I founded The Swartz Foundation, an organization dedicated to exploring

the application of physics, mathematics and computer engineering principles to neuroscience. I

am the Chairman of The Swartz Foundation.

11.

Through my friendship with Professor Bergstein, I became acquainted with his

son, David. Beginning around 2007, David would approach me, directly or through my

representatives (chiefly James King, my longtime accountant) about various business

opportunities in which David was interested. Between August 2007 and June 2008, I invested

more than $6 million in David’s ventures. I also consulted for David’s ventures, giving him the

benefit of my business and technical experience. My investments in David’s ventures were

never repaid.

12. In July 2008, I suffered a severe, debilitating stroke and required brain surgery. I

retired from active business affairs following my stroke.

13. In or around November 2010, David raised the idea of forming a company jointly

owned by myself and him (or an entity owned by him) called “Swartz Management Company.”

David’s idea was for me, through Swartz Management Company, to assist a Texas company

named Geotag Inc. with its intellectual property issues. My advisors and I evaluated whether to

enter into co-ownership with such a venture, but ultimately I decided against becoming affiliated

with Geotag, and rejected the opportunity. I did not agree to join a company with David, and I



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did not give him permission to use my name in a company I did not own or control. I considered

the matter closed after that.

14. I learned in November 2011 that David was using my name in the company called

Swartz IP Services Group Inc. (“SIP”). Both Mr. King and I instructed David to remove my

name from the company.

15. I was never an employee, officer, director or shareholder of SIP. I never

participated in SIP’s management. I never controlled any accounts belonging to SIP at any

financial institution or contributed any capital to SIP. I never used SIP’s offices, equipment or

employees for any purpose. I never signed a document on SIP’s behalf. When I learned that SIP

was doing business using my name in November 2011, I asked Bergstein to change its name.

16. I never discussed SIP’s business with Albert Hallac or Jeffrey Hallac. Although

Jeffrey Hallac asked me to invest in the Wimbledon Fund in March and April 2012, I declined to

make any investment in Wimbledon, directly or indirectly.

17. I never received payment from Cascade Technologies Corp., a company that had

appointed me to its advisory board.

18. I declined to make any investment in the ClearSky Power & Technology Fund.

19.

In April 2012, I received $80,000 by wire from a Bergstein company called

Integrated Administration. The payment was under a consulting agreement I entered into with

that company, and was compensation for services I had performed for services years earlier. I

received another $20,000 from the same company in May 2013. Those were the only payments I

received from Integrated Administration.



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EXHIBIT B



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FOR THE SOUTHERN DISTRICT OF NEW YORK


§

Requesting Party, §§

v. §

§

JAMES P. KING, § 16 MISC 140

§

Responding Party. §

______________________________________________________________________________


FOR THE CENTRAL DISTRICT OF CALIFORNIA


§

Plaintiff, §

§

v. §

§

DAVID BERGSTEIN, JEROME SWARTZ, § Case No. 2:16-CV-02287-CAS-AJW


§

Defendants. §

DECLARATION OF LANCE C. ARNEY

I, Lance C. Arney, declare as follows:

1. I am a counsel for Defendant Jerome Swartz and Non-Party James P. King, of the

firm Moulton, Wilson & Arney, LLP. The statements in this Declaration are from my personal,

firsthand knowledge, and if called and sworn as a witness, I could and would testify as follows.

2.

I make this Declaration in support of Non-Party James P. King’s Memorandum in

Opposition to Motion To Compel Discovery (the “Opposition”).

3. Plaintiff The Wimbledon Fund, SPC (Class TT) (the “Fund”) has moved to

consolidate the Bergstein case (in which Dr. Swartz is also a defendant) with Case No. 2:15-cv-



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06633-CAS-AJW, also pending in the United States District Court for the Central District of

California. A true and correct copy of the minutes of the Scheduling Conference is attached as

Exhibit 1. According to those minutes, that case is set for a jury trial beginning October 24,

2017.

4. A true and correct copy of Non-Party James P. King’s amended responses and

objections to the Fund’s subpoena, served April 18, 2016, is attached as Exhibit 2.

5. The Fund’s subpoena requests documents relating to Bergstein and other

individuals and entities. Based on the records in the case, including but not limited to Dr.

Swartz’s declaration, the business relationship between Dr. Swartz and Bergstein began in

2007—nine years ago. I am also aware that Dr. Swartz is involved in a divorce lawsuit in New

York state court which is set for trial this summer, and that Mr. King has been heavily involved

in gathering documents for that proceeding as well. In my opinion, and based on my experience

with discovery in this and other cases, it will reasonably take four to six weeks for Mr. King to

gather the additional Bergstein documents from his files, forward the documents to me for

review, and for our firm to prepare the documents for production to the Fund and the other

parties.

I declare under penalty of perjury under the laws of the United States of America that the

foregoing is true and correct.

Executed April 19, 2016, at Houston, Texas.

___________________________Lance C. Arney



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EXHIBIT 1



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UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES - GENERAL

Case No. CV15-6633-CAS(AJWx) Date March 28, 2016

Title The Wimbledon Fund, SC CLass TT v. Graybox LLC et al

Present: The Honorable CHRISTINA A. SNYDER, U.S. DISTRICT JUDGE

Connie Lee Lisa Gonzalez N/A

Deputy Clerk Court Reporter / Recorder Tape No.

Attorneys Present for Plaintiffs: Attorneys Present for Defendants:

James Walker Rebecca Wester

Patrick McGarrigle

Patricia Glaser Richard Buckner

Tracey Hom

Proceedings: SCHEDULING CONFERENCE

Hearing held and counsel are present. The Court confers with counsel and

schedules the following dates:

Request for leave to file amended pleadings or to add parties: April 25, 2016;

Settlement Completion Cutoff: July 28, 2017;Factual Discovery Cut-off: March 31, 2017;

Last Day to File Motions: September 9, 2017;

Exchange of Expert Reports Cut-off: July 25, 2017;

Exchange of Rebuttal Reports Cut-off: August 24, 2017;

Expert Discovery Cut-off: September 20, 2017;

Status Conference re: Settlement (11:00 A.M.): August 14, 2017;

Pretrial Conference/Hearing on Motions in Limine (11:00 A.M.): October 2, 2017; and

Jury Trial (9:30 A.M.): October 24, 2017.

Motions in limine shall be noticed for the same date and time of the Pretrial Conference,

and filed 28 days prior thereto. Motions in limine/oppositions shall not exceed five (5)

pages in length and no replies will be accepted.

00 : 19

Initials of Preparer CL

cc: ADR

CV-90 (06/04) CIVIL MINUTES - GENERAL Page 1 of 1

!"#$ &'()*+,*-..//*!01*023 45+67$89 (&/ :;&?>(. @"A$ ( 5B ( @"A$ C4 D')?(-Case 1:16-mc-00140-P1 Document 7-2 Filed 04/19/16 Page 5 of 15


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EXHIBIT 2



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FOR THE SOUTHERN DISTRICT OF NEW YORK


§

Requesting Party, §§

v. §

§

JAMES P. KING, § 16 MISC 140

§

Responding Party. §

______________________________________________________________________________


FOR THE CENTRAL DISTRICT OF CALIFORNIA


§

Plaintiff, §

§

v. §

§

DAVID BERGSTEIN, JEROME SWARTZ, § Case No. 2:16-CV-02287-CAS-AJW


§

Defendants. §

JAMES P. KING’S AMENDED OBJECTIONS TO DOCUMENT

REQUESTS UNDER RULE 45

James P. King serves these Amended Objections under Rule 45(d)(2)(B) of the Federal

Rules of Civil Procedure to the document requests in the Subpoena dated February 12, 2016, by

Plaintiff The Wimbledon Fund, SPC (Class TT).

GENERAL OBJECTIONS AND OBJECTIONS

TO DEFINITIONS AND INSTRUCTIONS

1. King objects to each request for production to the extent it seeks documents

protected from disclosure by any privilege or other protective doctrine, including, but not limited

to, the attorney client privilege, the work product doctrine, the trial preparation materials



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doctrine, documents prepared in anticipation of or in connection with litigation, documents

precluded from disclosure by protective agreements or orders in other litigation, and confidential

or proprietary business and/or personal information of persons and entities not parties to this

litigation. The production of any document or information for which it is later discovered a

claim of privilege or other protective doctrine applies shall not be deemed a waiver of such

privilege or protective doctrine. Privileged and/or otherwise protected documents will not be

produced. King is withholding attorney-client communications and trial preparation material

sent, received, or created by Swartz’s attorneys.

2.

King objects to Wimbledon’s instructions to the extent they impose burdens or

obligations on King beyond those required or allowed by the Federal Rules of Civil Procedure.

3. King objects to the time and place of the requested production. Documents will

be produced in response to this subpoena through King’s counsel, on or before May 31, 2016.

4. Each of the foregoing General Objections and Objections to Definitions and

Instructions is incorporated into each of the subsequent responses set forth herein. No response

is intended to be a waiver of these objections. Additional specific objections made in response to

a particular request are not intended to, and do not, waive these General Objections and

Objections to Definitions.

5. King objects to the form requested for the production of electronically stored

information as unduly burdensome. King does not have access to Relativity or Concordance.

Any electronically stored information produced by King will be produced in a reasonably usable

form.

SPECIFIC OBJECTIONS AND RESPONSES

1. All documents and communications exchanged between you and Swartz concerning orrelating to Bergstein, Jam, Grunfeld, SIP, Swartz Management Company, the Fund, Weston,



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GeoTag, Cascade, ClearSky, Integrated, and/or the Breach-of-Contract Lawsuit.

RESPONSE:

King will produce non-privileged responsive documents.

2. All documents and communications exchanged between you and Bergstein concerning orrelating to Swartz, SIP, Swartz Management Company, the Fund, Weston, GeoTag, Cascade,ClearSky, Integrated, and/or the Breach-of-Contract Lawsuit.

RESPONSE:

King will produce responsive documents.

3. All documents and communications exchanged between you and Jam concerning orrelating to Swartz, SIP, Swartz Management Company, the Fund, Weston, GeoTag, Cascade,ClearSky, Integrated, and/or the Breach-of-Contract Lawsuit.

RESPONSE:


4. All documents and communications exchanged between you and Grunfeld concerning orrelating to Swartz, SIP, Swartz Management Company, the Fund, Weston, GeoTag, Cascade,ClearSky, Integrated, and/or the Breach-of-Contract Lawsuit.

RESPONSE:


5. All documents and communications exchanged between you and McArthur concerning orrelating to Swartz, SIP, Swartz Management Company, the Fund, Weston, GeoTag, Cascade,ClearSky, Integrated, and/or the Breach-of-Contract Lawsuit.

RESPONSE:

Objection. The request is overbroad, unduly burdensome, and seeks documents that areirrelevant and not reasonably calculated to lead to the discovery of admissible evidence, to theextent it seeks all documents and communications concerning or relating to Swartz. Subject tothe foregoing objections, King will produce non-privileged responsive documents relating to SIP,

Swartz Management Company, the Fund, Weston, GeoTag, Cascade, ClearSky, Integrated,and/or the Breach-of-Contract Lawsuit.

6. All agreements between: (i) Swartz and/or The Swartz Foundation; and (ii) SIP.



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RESPONSE:

None.

7. All documents and communications concerning or relating to monetary transactions

involving: (i) Swartz and/or The Swartz Foundation; and (ii) SIP.

RESPONSE:

None.

8. All agreements between: (i) Swartz and/or The Swartz Foundation; and (ii) SwartzManagement Company.

RESPONSE:

None.

9. All documents and communications concerning or relating to monetary transactionsinvolving: (i) Swartz and/or The Swartz Foundation; and (ii) Swartz Management Company.

RESPONSE:

None.

10. All agreements between: (i) Swartz and/or The Swartz Foundation; and (ii) Bergstein.

RESPONSE:


11. All documents and communications concerning or relating to monetary transactionsinvolving: (i) Swartz and/or The Swartz Foundation; and (ii) Bergstein.

RESPONSE:


12. All agreements between: (i) Swartz and/or The Swartz Foundation; and (ii) Bergstein’s“ventures,” as used in paragraph 11 of Swartz’s declaration filed as Doc. No. 55-3 in the Lawsuit.

RESPONSE:




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13. All documents and communications concerning or relating to monetary transactionsinvolving: (i) Swartz and/or The Swartz Foundation; and (ii) Bergstein’s “ventures,” as used inparagraph 11 of Swartz’s declaration filed as Doc. No. 55-3 in the Lawsuit.

RESPONSE:


14. All agreements between: (i) Swartz and/or The Swartz Foundation; and (ii) Cascade.

RESPONSE:

None.

15. All documents and communications concerning or relating to monetary transactionsinvolving: (i) Swartz and/or The Swartz Foundation; and (ii) Cascade.

RESPONSE:

None.

16. All agreements between: (i) Swartz and/or The Swartz Foundation; and (ii) Integrated.

RESPONSE:


17. All documents and communications concerning or relating to monetary transactionsinvolving: (i) Swartz and/or The Swartz Foundation; and (ii) Cascade.

RESPONSE:

None.

18. All non-privileged documents and communications concerning or relating toinvestigations of Bergstein, Jam, and/or Grunfeld performed by individuals retained by Swartzand/or Swartz’s family members.

RESPONSE:

None.

19. All non-privileged documents and communications between: (i) you; and (ii) HowardGordon, David Hennes, and/or Shanah Swartz-Gordon concerning or relating to Bergstein.



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RESPONSE:


20. All non-privileged documents and communications between: (i) you; and (ii) Howard

Gordon, David Hennes, and/or Shanah Swartz-Gordon concerning or relating to SIP.

RESPONSE:


21. All non-privileged documents and communications between: (i) you; and (ii) HowardGordon, David Hennes, and/or Shanah Swartz-Gordon concerning or relating to SwartzManagement Company.

RESPONSE:


22. All non-privileged documents and communications between: (i) you; and (ii) HowardGordon, David Hennes, and/or Shanah Swartz-Gordon concerning or relating to Integrated.

RESPONSE:


23. All non-privileged documents and communications between: (i) you; and (ii) HowardGordon, David Hennes, and/or Shanah Swartz-Gordon concerning or relating to Cascade.

RESPONSE:


24. All non-privileged documents and communications between: (i) you; and (ii) HowardGordon, David Hennes, and/or Shanah Swartz-Gordon concerning or relating to Weston.

RESPONSE:


25. All non-privileged documents and communications between: (i) you; and (ii) HowardGordon, David Hennes, and/or Shanah Swartz-Gordon concerning or relating to the Fund.

RESPONSE:




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26. All engagement contracts and/or retainer agreements between: (i) you; and (ii) HowardGordon, David Hennes, and/or their respective law firms reflecting your agreement toengagement either one or both of them as your legal counsel for any purpose.

RESPONSE:

None.

27. All engagement contracts and/or retainer agreements between: (i) Swartz; and (ii)Howard Gordon, David Hennes, and/or their respective law firms reflecting Swartz’s agreementto engage either one or both of them as his legal counsel for any purpose.

RESPONSE:


28. All documents and communications concerning or relating to meetings between Swartzand Eugene Scher.

RESPONSE:


29. The most recent agreement between you and Swartz concerning or relating to theaccounting and/or advisory services provided by you to Swartz.

RESPONSE:

None.

30. The most recent agreement between you and The Swartz Foundation concerning orrelating to the accounting and/or advisory services provided by you to The Swartz Foundation.

RESPONSE:

None.

31. To the extent that they are not responsive to the preceding categories of documents to beproduced, any additional, non-privileged documents and communications concerning or relatingto SIP, Bergstein, Jam, Grunfeld, Swartz Management Company, the Fund, Weston, GeoTag,Cascade, ClearSky, Integrated, and/or the Breach-of-Contract Lawsuit.

RESPONSE:




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Respectfully submitted,

By: /s/ Cynthia R. Levin Moulton_____________Cynthia R. Levin MoultonState Bar No. 12253450

800 Taft StreetHouston, Texas 77019

Telephone: (713) 353-6699Telecopier: (713) 353-6698

Email: [email protected]

ATTORNEY-IN-CHARGE FORDEFENDANT JEROME SWARTZ

AND NON-PARTY JAMES P. KING

Of Counsel:

Moulton, Wilson & Arney, L.L.P.

Lance C. ArneyState Bar No. 00796137

800 Taft StreetHouston, Texas 77019

Telephone : (713) 353-6699Telecopier: (713) 353-6698

Email: [email protected]



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CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the foregoing document has been served

by email on the following counsel of record on April 18, 2016.

COLE SCHOTZ P.C.

James W. WalkerJustin S. Levy

2515 McKinney Ave., Suite 1350Dallas, Texas 75201

[email protected] [email protected]

COLE SCHOTZ P.C.

Leo V. LeyvaJames T. Kim

900 Third Avenue New York, New York 10022-1906

[email protected] [email protected]

GLASER WEIL FINK HOWARD

AVCHEN & SHAPIRO, LLPG. Jill Basinger

Richard Buckner10250 Constellation Blvd., 19th Floor

Los Angeles, California 90067 [email protected]

[email protected]

LAW OFFICES OF HENRY N. JANNOL,

A PROFESSIONAL CORP.Paul H. Levine

Henry N. Jannol10850 Wilshire Boulevard, Suite 825

Los Angeles, California 90024-4644 [email protected]

[email protected]

BECK REDDEN LLPMichael E. Richardson

1221 McKinney Street, Suite 4500Houston, Texas 77010-2010

[email protected]

/s/ Cynthia R. Levin Moulton________________Cynthia R. Levin Moulton
