{00252297.1 } 

Vanguard Specialized Funds, et al. v. VEREIT, Inc., et al.

Case No. CV-15-02157-PHX-JAS

Index of Exhibits

Plaintiffs’ Request for ARCP to Produce Documents For Gavin Brandon 

Ex. No. Exhibit Description 

1. Letter to Antonia Apps from Beko Richardson dated April 12, 2018 (FILED 

UNDER SEAL) 

2. Letter to Beko Richardson from Thomas A. Quinn dated April 17, 2018 

3. Letter to Thomas A. Quinn from Beko Richardson dated April 20, 2018 (FILED 

UNDER SEAL) 

4. Letter to Beko Richardson from Thomas A. Quinn dated April 24, 2018 

5. Letter to Thomas A. Quinn from Beko Richardson dated April 24, 2018 (FILED 

UNDER SEAL) 

6. Letter to Counselors from Beko Richardson dated May 2, 2018 

7. Letter to Beko Richardson from Jonathan Ohring dated January 23, 2018 

8. Plaintiffs’ First Set of Requests for Production of Documents to Defendants dated 

October 24, 2016 

9. Plaintiffs’ Second Set of Requests for Production of Documents to Defendants 

dated March 22, 2016 

10. Plaintiffs’ Third Set of Requests for Production of Documents to Defendants 

dated April 5, 2017 

11. Initial Disclosures of Defendants VEREIT, Inc. and VEREIT Operating 

Partnership, L.P. Pursuant to Federal Rule of Civil Procedure 26(A)(1) dated 

November 9, 2016 

12. Letter to Beko Richardson from Antonia Apps dated April 21, 2017 

13. Letter to Beko Richardson from Jonathan Ohring dated January 9, 2018 

14. Letter to Beko Richardson from Thomas A. Quinn dated May 21, 2018 (FILED 

UNDER SEAL) 

Case 2:15-cv-02157-JAS Document 281-1 Filed 05/25/18 Page 1 of 132
EXHIBIT 1 

REDACTED 

Case 2:15-cv-02157-JAS Document 281-1 Filed 05/25/18 Page 2 of 132
April 12, 2018

VIA EMAIL 

Antonia Apps, Esq. 

Milbank, Tweed, Hadley & McCloy LLP 

28 Liberty Street 

New York, NY 10005-1413 

aapps@milbank.com 

Re: Vanguard Specialized Funds, et al. v. VEREIT, Inc., et al., 

No. CV-15-02157 

Dear Ms. Apps: 

I write on behalf of Plaintiffs regarding Plaintiffs’ document requests to VEREIT, 

Inc. and VEREIT Operating Partnership, L.P (together “ARCP”).

On March 4-6, 2018, parties from the various actions deposed Grant Thornton 

employee Jessica Estrada regarding her ARCP-related work. One document marked as 

an exhibit during that deposition (Ex. 271, GT-ARCP DOC_00200922) included the 

following statement in one of the attached spreadsheets: 

 

Ms. Estrada testified that 

 

 

This document (along with Ms. Estrada’s testimony and other documents we have 

identified) makes us extremely concerned regarding the fact that ARCP still has not 

produced Mr. Brandon’s documents – something Plaintiffs requested more than a year 

ago and ARCP still has not done. 

ARCP identified Mr. Brandon in its initial disclosure in this action. In December 

2016, Plaintiffs asked ARCP to include Mr. Brandon as a custodian. In your January 31, 

Case 2:15-cv-02157-JAS Document 281-1 Filed 05/25/18 Page 3 of 132
April 12, 2018

Page 2

2017 letter, ARCP objected. In your April 21, 2017 letter, you suggested that Mr. 

Brandon would have limited or no relevant documents, stating:

With respect to Mr. Brandon, adding him as a custodian would result in 

13,735 new ‘hits’ based on the search terms applied to existing custodians, 

even after de-duplication for documents previously reviewed. Many, if 

not most, of these documents will be irrelevant and reviewing them would 

be disproportionate to the needs of the case because from the time that Mr. 

Brandon joined ARCP upon the closing of the Cole merger through 

approximately October 28, 2014, Mr. Brandon held positions within the 

Private Capital Markets segment for which Cole Capital was the sponsor. 

That segment was not the subject of any changes to financial statements or 

operations identified in the March 2, 2015 restatement, and is not the 

subject of the allegations in the Complaint. Indeed, the ARCP Defendants 

conducted a review of a sample set of these documents, which confirmed 

that they are irrelevant and that further review would be disproportionate 

to the needs of the case.

It is clear that Mr. Brandon has highly relevant documents and information, and 

his documents should be collected, reviewed, and produced without further delay. 

No later than April 17, 2018, please send us ARCP’s final position regarding

whether it will produce Mr. Brandon’s documents and any proposal as to search terms. 

The parties can then meet and confer before the next conference. 

Sincerely,

Beko Reblitz-Richardson

cc: Keith Beauchamp, Esq.

Jonathan Sherman, Esq.

Edward J. Normand, Esq.

Joseph F. Kroetsch, Esq.

Nathan Holcomb, Esq.

Case 2:15-cv-02157-JAS Document 281-1 Filed 05/25/18 Page 4 of 132
EXHIBIT 2

Case 2:15-cv-02157-JAS Document 281-1 Filed 05/25/18 Page 5 of 132
MILBANK, TWEED, HADLEY & MCˍCLOY LLP

LOS ANGELES

424-386-4000

FAX: 213-629-5063

WASHINGTON, D.C.

202-835-7500

FAX: 202-835-7586

LONDON

44-20-7615-3000

FAX: 44-20-7615-3100

FRANKFURT

49-69-71914-3400

FAX: 49-69-71914-3500

MUNICH

49-89-25559-3600

FAX: 49-89-25559-3700

28 LIBERTY STREET

NEW YORK, NY 10005

BEIJING

8610-5969-2700

FAX: 8610-5969-2707

HONG KONG

852-2971-4888

FAX: 852-2840-0792

SEOUL

822-6137-2600

FAX: 822-6137-2626

SINGAPORE

65-6428-2400

FAX: 65-6428-2500

TOKYO

813-5410-2801

FAX: 813-5410-2891

SÃO PAULO

55-11-3927-7700

FAX: 55-11-3927-7777

212-530-5000

FAX: 212-530-5219

Thomas A. Quinn

DIRECT DIAL NUMBER

212-530-5265

E-MAIL: TQuinn@milbank.com

April 17, 2018

VIA EMAIL

Mr. Beko O. Reblitz-Richardson, Esq.

Boies, Schiller & Flexner LLP

1999 Harrison Street, Suite 900

Oakland, CA 94612

Re: Vanguard Specialized Funds, et al. v. VEREIT, Inc., et al., 

No. 2:15-cv-02157-ROS

 

Dear Mr. Reblitz-Richardson:

We write on behalf of Defendants VEREIT, Inc. and VEREIT Operating 

Partnership, L.P. (collectively, the “VEREIT Defendants”) in response to your April 12, 2018 

letter.

We are now, and have been, willing to include Mr. Brandon as a custodian subject 

to a reasonable set of search criteria, provided that Plaintiffs include Mr. Walker as a custodian 

as well. Our proposal is set forth in our January 9, 2018 letter. Your January 11, 2018 letter 

responding to our January 9, 2018 letter did not appear to respond to our proposal with respect to 

Mr. Brandon and Mr. Walker.

Your April 12, 2018 letter includes an excerpt from our April 21, 2017 letter

discussing Mr. Brandon. That letter clearly states our position on Mr. Brandon—that including 

Mr. Brandon as a custodian subject to “the search terms applied to existing custodians” would 

result in a disproportionately large number of irrelevant documents because through October 28, 

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EXHIBIT 3 

REDACTED 

Case 2:15-cv-02157-JAS Document 281-1 Filed 05/25/18 Page 8 of 132
April 20, 2018

VIA EMAIL

Thomas Quinn, Esq. 

Milbank, Tweed, Hadley & McCloy LLP

28 Liberty Street

New York, NY 10005-1413

aapps@milbank.com

Re: Vanguard Specialized Funds, et al. v. VEREIT, Inc., et al., 

No. CV-15-02157

Dear Mr. Quinn:

I write on behalf of Plaintiffs in response to your letter dated April 17, 2018, 

regarding ARCP’s production of Mr. Brandon’s documents. 

Your letter does not dispute, or even address, that ARCP must have relevant 

emails and other documents from Mr. Brandon’s files based at least in part on Mr. 

Brandon’s involvement in the ARCP restatement process, as the recent testimony and 

exhibits at the deposition of Ms. Estrada earlier this month confirm. 

Instead, your letter suggests that Plaintiffs ignored an earlier letter and seeks to 

condition production of Mr. Brandon’s documents. You cite Mr. Ohring’s letter dated 

January 9, 2018, where ARCP proposed a limited production of Mr. Brandon’s 

documents (limited to a five-month period and seven sets of terms) conditioned on

Plaintiffs’ production of Mr. Walker’s documents applying the full set of search terms 

used by Plaintiffs for all other custodians and for the full time period. 

Your letter is a transparent attempt by ARCP to further delay production of these 

key documents from Mr. Brandon’s files, to distract attention from ARCP’s misleading 

representations regarding Mr. Brandon, and to impose additional costs on Plaintiffs by 

again demanding production of Mr. Walker’s documents. There is no question that Mr. 

Brandon’s documents are relevant, and ARCP should have produced those documents 

many months ago. ARCP may not condition production of those key documents on 

Plaintiffs’ agreement to produce Mr. Walker’s documents, and certainly not based on the 

application of a far broader set of searches to Mr. Walker’s documents. 

At the time of Mr. Ohring’s January 9 letter, Plaintiffs were still under the 

impression – based on Ms. Apps’ prior representations, as quoted in our April 12 letter, 

and having been excluded from all document-related negotiations in the SDNY Action –

Case 2:15-cv-02157-JAS Document 281-1 Filed 05/25/18 Page 9 of 132
April 20, 2018

Page 2 

that Mr. Brandon may not have any significant number of relevant or key documents. 

Based on Ms. Apps’ representations, and the fact that ARCP never disclosed to us the 

key role that Mr. Brandon played, we discussed in December 2017 the possibility of an 

agreement to the production of documents for both Mr. Brandon and Mr. Walker, with 

certain follow-up letters. 

Based on the deposition of Ms. Estrada and additional document review, however, 

it is now clear that Mr. Brandon played a key role in connection with the ARCP 

restatement process and, it stands to reason, has many key documents regarding the 

massive fraud that occurred at ARCP. None of this was disclosed to us during the 

previous conversations regarding Mr. Brandon. ARCP instead repeatedly sought to 

convince us that there was no need to produce Mr. Brandon’s documents, and that it 

imposed a disproportionate burden on ARCP to produce those documents. In fact, there 

never should have been any question about producing these documents, and they should 

have been produced to us long ago. 

As you know, the document marked at Ms. Estrada’s deposition – containing 

 – was produced by Grant 

Thornton. We previously asked ARCP to produce all documents produced in the SDNY 

Action, which would have included all documents that Grant Thornton produced to 

ARCP. ARCP refused. ARCP instead forced us to subpoena other parties, including 

Grant Thornton, to obtain those documents. These efforts created further delay and 

imposed additional costs on Plaintiffs. Although we have now identified additional 

versions of this key document produced by ARCP, we first became aware of this 

spreadsheet only at Ms. Estrada’s deposition. ARCP’s demand that Plaintiffs separately 

subpoena parties for documents such as these is just another way in which ARCP has 

taken steps to prejudice Plaintiffs and withhold evidence. 

ARCP’s failure to produce Mr. Brandon’s documents also further confirms the 

inadequacy of the discovery record from the SDNY Action. ARCP has repeatedly 

opposed Plaintiffs’ efforts to obtain relevant discovery beyond the scope of the SDNY 

Action, including most recently with respect to Mr. Brandon’s documents and also the 

former Cole executives. The fact is that Plaintiffs had no input regarding the selection of 

custodians, search terms, or deponents in the SDNY Action. Despite evidence linking Mr. 

Brandon to an admission of intentional misstatements prior to 2014, which surely was 

known to ARCP, Mr. Brandon was not a custodian in the SDNY Action, and he has not 

even been identified as a deponent in that action. 

ARCP’s decision to withhold Mr. Brandon’s documents is also prejudicial to 

Plaintiffs given ARCP’s repeated assertion that ARCP executives engaged in fraud only 

in 2014. ARCP sought to limit its exposure to only the 2014 period with its motion to 

dismiss in this action, and ARCP then emphasized in the Rule 16 report submitted to 

Case 2:15-cv-02157-JAS Document 281-1 Filed 05/25/18 Page 10 of 132
April 20, 2018

Page 3 

Judge Soto that ARCP’s October 2014 disclosure “did not identify errors, much less 

intentional ones, as to any financial period pre-dating 2014” and that the March 2015 

restatements “did not announce any findings of intentional conduct as to any reporting 

period prior to the second quarter of 2014.” (Dkt. 247 at 8-9.) This document 

, however, admits 

, as Plaintiffs have alleged. 

At all times since Plaintiffs first asked ARCP to produce Mr. Brandon’s 

documents, in December 2016, ARCP knew or should have known that Mr. Brandon 

played a key role in the restatement process and would have relevant documents and 

testimony regarding ARCP’s fraud. Instead of sharing that information to us, ARCP first 

sought to mislead us as to the importance of Mr. Brandon’s documents (ARCP’s early 

2017 letters) and then sought an agreement to a limited time period and set of search 

terms conditioned on production of Mr. Walker’s documents (in the January 9 letter). 

Instead of now agreeing to produce Mr. Brandon’s documents, ARCP now seeks to divert 

attention from its failures and misconduct and further delay production. 

There is no basis for ARCP to continue to withhold Mr. Brandon’s documents. 

Please immediately begin reviewing Mr. Brandon’s documents for production based on 

the limits set out in Mr. Ohring’s January 9 letter, and produce them on a rolling basis. 

ARCP should produce those documents immediately, without prejudice to further 

discussion regarding the contours of the production of Mr. Brandon’s documents

(including both time period and search terms) and without conditioning that on the 

production of Mr. Walker’s documents. Please confirm that ARCP will do so. 

Although there is no basis for ARCP to demand production of Mr. Walker’s 

documents as a condition of producing Mr. Brandon’s documents, we have nonetheless 

begun the process of collecting his documents for review. We will run the search terms 

and assess whether there are any time-period or search-term restrictions that should apply. 

ARCP has never articulated any compelling need for Mr. Walker’s documents, let alone 

that Plaintiffs apply all search terms for the full time period, but we are nonetheless 

evaluating that request. This process should in no way delay ARCP’s collection, review, 

and production of Mr. Brandon’s documents. 

To be clear, we have never sought to delay any production of Mr. Walker’s 

documents. You never followed up regarding ARCP’s request for his documents, and we 

have been focused on the depositions. As you know, we sought to negotiate an additional 

production of documents by ARCP before these depositions began. In response, ARCP 

took the position that Plaintiffs should instead seek information through the depositions. 

We strongly disagree with ARCP’s position, but we nonetheless have focused on these 

depositions, including Ms. Estrada’s recent deposition. In the meantime, Plaintiffs held 

off on seeking to compel production, while conducting these initial depositions. 

Case 2:15-cv-02157-JAS Document 281-1 Filed 05/25/18 Page 11 of 132
April 20, 2018

Page 4

It has become clear that ARCP’s proposal does not and will not work. After 

many days of preparation, these witnesses have limited recollection. We have repeatedly 

needed to prompt their recollection by confronting them with documents. Your position 

that Plaintiffs should first seek evidence through testimony and not documents has it 

backwards. Without documents, we have limited ability to prove that ARCP’s claims are 

false – including ARCP’s claim that there were no intentional misstatements prior to 

2014. The Court directed the parties to coordinate depositions, and we have diligently 

done so. It is now time to resolve these outstanding document issues, and ARCP should 

immediately produce Mr. Brandon’s documents.

Sincerely,

Beko Reblitz-Richardson

cc: Keith Beauchamp, Esq.

Jonathan Sherman, Esq.

Edward J. Normand, Esq.

Joseph F. Kroetsch, Esq.

Nathan Holcomb, Esq.

Case 2:15-cv-02157-JAS Document 281-1 Filed 05/25/18 Page 12 of 132
EXHIBIT 4

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EXHIBIT 5 

REDACTED 

Case 2:15-cv-02157-JAS Document 281-1 Filed 05/25/18 Page 20 of 132
April 24, 2018

VIA EMAIL

Thomas Quinn, Esq. 

Milbank, Tweed, Hadley & McCloy LLP

28 Liberty Street

New York, NY 10005-1413

aapps@milbank.com

Re: Vanguard Specialized Funds, et al. v. VEREIT, Inc., et al., 

No. CV-15-02157

Dear Mr. Quinn:

I write on behalf of Plaintiffs in response to your letter from earlier today 

regarding ARCP’s production of Mr. Brandon’s documents and Plaintiffs’ April 20 

submission to the Court. 

ARCP’s Abusive Discovery Posture

Your letter reflects an abuse of the meet-and-confer process set forth in the 

protective order. With Plaintiffs’ April 20 submission, we properly sought to notify the 

Court of ARCP’s misconduct, as detailed in our prior letters. You objected, and you said 

we needed to first meet and confer with Grant Thornton. We have since done so, and 

Grant Thornton’s counsel proposed specific redactions to two of those three letters. 

Enclosed with this letters are Grant Thornton’s requested redactions. Plaintiffs may now 

share those letters with the Court so the Court may consider them in connection with this 

conference. 

In your letter today, you “insist” that Plaintiffs include your letter with any 

submission to the Court – but then state “this letter refers to confidential information 

under the Protective Order” and Plaintiffs therefore “must meet and confer with the 

VEREIT Defendants at least three days prior to submitting this correspondence with the 

Court ....” In doing so, you seek to prevent Plaintiffs from sharing any of these letters 

with the Court, even if we submit them under seal and even after we have at your request 

met and conferred with Grant Thornton.

You could have sent us a proposed redaction to your letter, articulating ARCP’s

position regarding the confidentiality of any portion of that letter, but you instead vaguely 

assert confidentiality to obstruct our efforts to inform the Court regarding ARCP’s 

Case 2:15-cv-02157-JAS Document 281-1 Filed 05/25/18 Page 21 of 132
April 24, 2018

Page 2 

discovery tactics. This is an abuse of the meet and confer process, and a transparent 

attempt to conceal ARCP’s misconduct and delay discovery. 

Grant Thornton sent us its proposed redactions, and Plaintiffs may now share the 

three previous letters with the Court. You may then if you’d like present your letter to 

the Court, along with this response. Plaintiffs have no objection to your letter or this 

response being made public. 

Custodians 

Nothing in your letter justifies ARCP’s continued withholding of Mr. Brandon’s 

documents. In my April 20 letter, we asked you to confirm that ARCP would produce 

Mr. Brandon’s documents based on ARCP’s prior proposal, while we meet and confer 

regarding the full scope of that production. You still have not done that. Instead, your 

letter attacks us and again demands that Plaintiffs agree to limit production of Mr. 

Brandon’s documents to only documents post-dating October 29, 2014 – claiming that 

any earlier documents “would be irrelevant.”

What is the basis for your assertion that all of Mr. Brandon’s documents prior to 

October 29, 2014 would be “irrelevant” to Plaintiffs’ claims? Based on our review, it is 

clear that Mr. Brandon was involved with the ARCP-Cole merger planning and 

integration, all of which pre-dated October 29, 2014. For example: 

 On December 3, 2013, Mr. Brandon 

 

ARCP_VANGUARD_01408684. 

 On December 9, 2013, Mr. Brandon 

. ARCP_VANGUARD_01088578. 

 On December 9, 2013, Mr. Brandon 

 ARCP_VANGUARD_01088741. 

 In January 2014, Mr. Brandon 

 E.g., ARC_CIV_SDNY_0791766. 

 In February 2014, Mr. Brandon 

Case 2:15-cv-02157-JAS Document 281-1 Filed 05/25/18 Page 22 of 132
April 24, 2018

Page 3 

 

ARCP_VANGUARD_00185308. 

 On February 7, 2014, Mr. Brandon 

 

ARCP_VANGUARD_01011508. 

 

ARCP_VANGUARD_01011516. 

 On February 12, 2014, Mr. Brandon 

 

ARC_CIV_SDNY_0791840. 

 On February 18, 2014, Mr. Brandon 

 ARCP_VANGUARD_01253047.

 In April 2014, Mr. Brandon 

 On June 12, 2014, Mr. Brandon 

 ARCP_VANGUARD_00096723.

 On June 20, 2014, Mr. Brandon 

 

ARCP_VANGUARD_00107013. 

 On July 2, 2014, Mr. Brandon 

 E.g., ARCP_VANGUARD_00123916. 

Case 2:15-cv-02157-JAS Document 281-1 Filed 05/25/18 Page 23 of 132
April 24, 2018

Page 4 

 Before October 29, 2014, Mr. Brandon 

 

ARCP_ONMD_AZ_0022649.

This is not meant to be a complete list of relevant documents that have already 

been produced. Also, we of course do not know what ARCP has withheld from Plaintiffs. 

In any case, these documents suggest that your “compromise” would result in ARCP 

withholding relevant documents from Mr. Brandon’s files.

Given these other documents, we do not understand how ARCP can credibly 

represent to us (or the Court) that all of Mr. Brandon’s documents from before October 

29, 2014 are “irrelevant.” This is especially true given the broad definition of relevance 

under the Federal Rules of Civil Procedure and the results of our own review of 

documents that already have been produced. 

This appears to be a pattern: ARCP makes broad representations regarding what 

whole categories of documents do or do not reflect, apparently without actually first 

reviewing those documents. For example, we have had a lengthy meet and confer 

regarding whether ARCP should apply certain Arizona-focused search terms. ARCP 

previously represented to the Court that the evidence will “demonstrate unequivocally 

that the relevant conduct took place outside of Arizona” (Dkt. 244 at 1) and that there are 

“no Arizona contacts that would warrant a choice of law for Arizona law” (11/14/2017 Tr. 

at 23), but ARCP meanwhile refuses to run searches to identify and produce documents 

responsive to Plaintiffs’ requests using various Arizona-focused searches. 

We cannot at this time agree to ARCP’s proposed “compromise” regarding Mr. 

Brandon because it appears that would result in ARCP withholding documents that are 

responsive to Plaintiffs’ requests and relevant to Plaintiffs’ claims. We ask, again, that 

ARCP immediately begin producing Mr. Brandon’s documents based on the search 

criteria you proposed. You have no basis to withhold those documents, and the parties 

can meanwhile continue to negotiate the full scope of that production. 

As stated in my April 20 letter, Plaintiffs are collecting Mr. Walker’s documents. 

ARCP’s demand for those documents in no way justifies ARCP’s misleading 

representations regarding Mr. Brandon’s documents and refusal to immediately begin 

production of those documents. 

Plaintiffs’ April 20 Submission

Plaintiffs’ April 20 submission was responsive to the Court’s order, and it 

provides relevant information for purposes of determining what methods the Court 

should adopt for resolving discovery disputes. 

Case 2:15-cv-02157-JAS Document 281-1 Filed 05/25/18 Page 24 of 132
April 24, 2018

Page 5

The letters were between counsel for Plaintiffs and ARCP, which is why we

contacted you regarding the submission of those letters to the Court, with the possibility 

of a stipulated agreement to have those filed under seal. 

There is nothing “improper” about seeking to notify the Court of ARCP’s 

misconduct, and (as explained above) your position reflects an abuse of the meet and 

confer provisions in the protective order, to prevent and delay discovery. 

Sincerely,

Beko Reblitz-Richardson

Enclosures

cc: Keith Beauchamp, Esq.

Jonathan Sherman, Esq.

Edward J. Normand, Esq.

Joseph F. Kroetsch, Esq.

Nathan Holcomb, Esq.

Case 2:15-cv-02157-JAS Document 281-1 Filed 05/25/18 Page 25 of 132
April 12, 2018

VIA EMAIL 

Antonia Apps, Esq. 

Milbank, Tweed, Hadley & McCloy LLP 

28 Liberty Street 

New York, NY 10005-1413 

aapps@milbank.com 

Re: Vanguard Specialized Funds, et al. v. VEREIT, Inc., et al., 

No. CV-15-02157 

Dear Ms. Apps: 

I write on behalf of Plaintiffs regarding Plaintiffs’ document requests to VEREIT, 

Inc. and VEREIT Operating Partnership, L.P (together “ARCP”).

On March 4-6, 2018, parties from the various actions deposed Grant Thornton 

employee Jessica Estrada regarding her ARCP-related work. One document marked as 

an exhibit during that deposition (Ex. 271, GT-ARCP DOC_00200922) included the 

following statement in one of the attached spreadsheets: 

Ms. Estrada testified that 

 

 

This document (along with Ms. Estrada’s testimony and other documents we have 

identified) makes us extremely concerned regarding the fact that ARCP still has not 

produced Mr. Brandon’s documents – something Plaintiffs requested more than a year 

ago and ARCP still has not done. 

ARCP identified Mr. Brandon in its initial disclosure in this action. In December 

2016, Plaintiffs asked ARCP to include Mr. Brandon as a custodian. In your January 31, 

Case 2:15-cv-02157-JAS Document 281-1 Filed 05/25/18 Page 26 of 132
April 12, 2018

Page 2

2017 letter, ARCP objected. In your April 21, 2017 letter, you suggested that Mr. 

Brandon would have limited or no relevant documents, stating:

With respect to Mr. Brandon, adding him as a custodian would result in 

13,735 new ‘hits’ based on the search terms applied to existing custodians, 

even after de-duplication for documents previously reviewed. Many, if 

not most, of these documents will be irrelevant and reviewing them would 

be disproportionate to the needs of the case because from the time that Mr. 

Brandon joined ARCP upon the closing of the Cole merger through 

approximately October 28, 2014, Mr. Brandon held positions within the 

Private Capital Markets segment for which Cole Capital was the sponsor. 

That segment was not the subject of any changes to financial statements or 

operations identified in the March 2, 2015 restatement, and is not the 

subject of the allegations in the Complaint. Indeed, the ARCP Defendants 

conducted a review of a sample set of these documents, which confirmed 

that they are irrelevant and that further review would be disproportionate 

to the needs of the case.

It is clear that Mr. Brandon has highly relevant documents and information, and 

his documents should be collected, reviewed, and produced without further delay. 

No later than April 17, 2018, please send us ARCP’s final position regarding

whether it will produce Mr. Brandon’s documents and any proposal as to search terms. 

The parties can then meet and confer before the next conference. 

Sincerely,

Beko Reblitz-Richardson

cc: Keith Beauchamp, Esq.

Jonathan Sherman, Esq.

Edward J. Normand, Esq.

Joseph F. Kroetsch, Esq.

Nathan Holcomb, Esq.

Case 2:15-cv-02157-JAS Document 281-1 Filed 05/25/18 Page 27 of 132
April 20, 2018

VIA EMAIL

Thomas Quinn, Esq. 

Milbank, Tweed, Hadley & McCloy LLP

28 Liberty Street

New York, NY 10005-1413

aapps@milbank.com

Re: Vanguard Specialized Funds, et al. v. VEREIT, Inc., et al., 

No. CV-15-02157

Dear Mr. Quinn:

I write on behalf of Plaintiffs in response to your letter dated April 17, 2018, 

regarding ARCP’s production of Mr. Brandon’s documents. 

Your letter does not dispute, or even address, that ARCP must have relevant 

emails and other documents from Mr. Brandon’s files based at least in part on Mr. 

Brandon’s involvement in the ARCP restatement process, as the recent testimony and 

exhibits at the deposition of Ms. Estrada earlier this month confirm. 

Instead, your letter suggests that Plaintiffs ignored an earlier letter and seeks to 

condition production of Mr. Brandon’s documents. You cite Mr. Ohring’s letter dated 

January 9, 2018, where ARCP proposed a limited production of Mr. Brandon’s 

documents (limited to a five-month period and seven sets of terms) conditioned on

Plaintiffs’ production of Mr. Walker’s documents applying the full set of search terms 

used by Plaintiffs for all other custodians and for the full time period. 

Your letter is a transparent attempt by ARCP to further delay production of these 

key documents from Mr. Brandon’s files, to distract attention from ARCP’s misleading 

representations regarding Mr. Brandon, and to impose additional costs on Plaintiffs by 

again demanding production of Mr. Walker’s documents. There is no question that Mr. 

Brandon’s documents are relevant, and ARCP should have produced those documents 

many months ago. ARCP may not condition production of those key documents on 

Plaintiffs’ agreement to produce Mr. Walker’s documents, and certainly not based on the 

application of a far broader set of searches to Mr. Walker’s documents. 

At the time of Mr. Ohring’s January 9 letter, Plaintiffs were still under the 

impression – based on Ms. Apps’ prior representations, as quoted in our April 12 letter, 

and having been excluded from all document-related negotiations in the SDNY Action –

Case 2:15-cv-02157-JAS Document 281-1 Filed 05/25/18 Page 28 of 132
April 20, 2018

Page 2 

that Mr. Brandon may not have any significant number of relevant or key documents. 

Based on Ms. Apps’ representations, and the fact that ARCP never disclosed to us the 

key role that Mr. Brandon played, we discussed in December 2017 the possibility of an 

agreement to the production of documents for both Mr. Brandon and Mr. Walker, with 

certain follow-up letters. 

Based on the deposition of Ms. Estrada and additional document review, however, 

it is now clear that Mr. Brandon played a key role in connection with the ARCP 

restatement process and, it stands to reason, has many key documents regarding the 

massive fraud that occurred at ARCP. None of this was disclosed to us during the 

previous conversations regarding Mr. Brandon. ARCP instead repeatedly sought to 

convince us that there was no need to produce Mr. Brandon’s documents, and that it 

imposed a disproportionate burden on ARCP to produce those documents. In fact, there 

never should have been any question about producing these documents, and they should 

have been produced to us long ago. 

As you know, the document marked at Ms. Estrada’s deposition – containing 

 – was produced by Grant 

Thornton. We previously asked ARCP to produce all documents produced in the SDNY 

Action, which would have included all documents that Grant Thornton produced to 

ARCP. ARCP refused. ARCP instead forced us to subpoena other parties, including 

Grant Thornton, to obtain those documents. These efforts created further delay and 

imposed additional costs on Plaintiffs. Although we have now identified additional 

versions of this key document produced by ARCP, we first became aware of this 

spreadsheet only at Ms. Estrada’s deposition. ARCP’s demand that Plaintiffs separately 

subpoena parties for documents such as these is just another way in which ARCP has 

taken steps to prejudice Plaintiffs and withhold evidence. 

ARCP’s failure to produce Mr. Brandon’s documents also further confirms the 

inadequacy of the discovery record from the SDNY Action. ARCP has repeatedly 

opposed Plaintiffs’ efforts to obtain relevant discovery beyond the scope of the SDNY 

Action, including most recently with respect to Mr. Brandon’s documents and also the 

former Cole executives. The fact is that Plaintiffs had no input regarding the selection of 

custodians, search terms, or deponents in the SDNY Action. Despite evidence linking Mr. 

Brandon to an admission of intentional misstatements prior to 2014, which surely was 

known to ARCP, Mr. Brandon was not a custodian in the SDNY Action, and he has not 

even been identified as a deponent in that action. 

ARCP’s decision to withhold Mr. Brandon’s documents is also prejudicial to 

Plaintiffs given ARCP’s repeated assertion that ARCP executives engaged in fraud only 

in 2014. ARCP sought to limit its exposure to only the 2014 period with its motion to 

dismiss in this action, and ARCP then emphasized in the Rule 16 report submitted to 

Case 2:15-cv-02157-JAS Document 281-1 Filed 05/25/18 Page 29 of 132
April 20, 2018

Page 3 

Judge Soto that ARCP’s October 2014 disclosure “did not identify errors, much less 

intentional ones, as to any financial period pre-dating 2014” and that the March 2015 

restatements “did not announce any findings of intentional conduct as to any reporting 

period prior to the second quarter of 2014.” (Dkt. 247 at 8-9.) This document 

, however, admits 

, as Plaintiffs have alleged. 

At all times since Plaintiffs first asked ARCP to produce Mr. Brandon’s 

documents, in December 2016, ARCP knew or should have known that Mr. Brandon 

played a key role in the restatement process and would have relevant documents and 

testimony regarding ARCP’s fraud. Instead of sharing that information to us, ARCP first 

sought to mislead us as to the importance of Mr. Brandon’s documents (ARCP’s early 

2017 letters) and then sought an agreement to a limited time period and set of search 

terms conditioned on production of Mr. Walker’s documents (in the January 9 letter). 

Instead of now agreeing to produce Mr. Brandon’s documents, ARCP now seeks to divert 

attention from its failures and misconduct and further delay production. 

There is no basis for ARCP to continue to withhold Mr. Brandon’s documents. 

Please immediately begin reviewing Mr. Brandon’s documents for production based on 

the limits set out in Mr. Ohring’s January 9 letter, and produce them on a rolling basis. 

ARCP should produce those documents immediately, without prejudice to further 

discussion regarding the contours of the production of Mr. Brandon’s documents

(including both time period and search terms) and without conditioning that on the 

production of Mr. Walker’s documents. Please confirm that ARCP will do so. 

Although there is no basis for ARCP to demand production of Mr. Walker’s 

documents as a condition of producing Mr. Brandon’s documents, we have nonetheless 

begun the process of collecting his documents for review. We will run the search terms 

and assess whether there are any time-period or search-term restrictions that should apply. 

ARCP has never articulated any compelling need for Mr. Walker’s documents, let alone 

that Plaintiffs apply all search terms for the full time period, but we are nonetheless 

evaluating that request. This process should in no way delay ARCP’s collection, review, 

and production of Mr. Brandon’s documents. 

To be clear, we have never sought to delay any production of Mr. Walker’s 

documents. You never followed up regarding ARCP’s request for his documents, and we 

have been focused on the depositions. As you know, we sought to negotiate an additional 

production of documents by ARCP before these depositions began. In response, ARCP 

took the position that Plaintiffs should instead seek information through the depositions. 

We strongly disagree with ARCP’s position, but we nonetheless have focused on these 

depositions, including Ms. Estrada’s recent deposition. In the meantime, Plaintiffs held 

off on seeking to compel production, while conducting these initial depositions. 

Case 2:15-cv-02157-JAS Document 281-1 Filed 05/25/18 Page 30 of 132
April 20, 2018

Page 4

It has become clear that ARCP’s proposal does not and will not work. After 

many days of preparation, these witnesses have limited recollection. We have repeatedly 

needed to prompt their recollection by confronting them with documents. Your position 

that Plaintiffs should first seek evidence through testimony and not documents has it 

backwards. Without documents, we have limited ability to prove that ARCP’s claims are 

false – including ARCP’s claim that there were no intentional misstatements prior to 

2014. The Court directed the parties to coordinate depositions, and we have diligently 

done so. It is now time to resolve these outstanding document issues, and ARCP should 

immediately produce Mr. Brandon’s documents.

Sincerely,

Beko Reblitz-Richardson

cc: Keith Beauchamp, Esq.

Jonathan Sherman, Esq.

Edward J. Normand, Esq.

Joseph F. Kroetsch, Esq.

Nathan Holcomb, Esq.

Case 2:15-cv-02157-JAS Document 281-1 Filed 05/25/18 Page 31 of 132
EXHIBIT 6

Case 2:15-cv-02157-JAS Document 281-1 Filed 05/25/18 Page 32 of 132
May 2, 2018

VIA EMAIL

Jerry Marks, Esq.

Antonia Apps, Esq.

Milbank, Tweed, Hadley & McCloy LLP

28 Liberty Street

New York, NY 10005-1413

jmarks@milbank.com

aapps@milbank.com

Re: Vanguard Specialized Funds, et al. v. VEREIT, Inc., et al., 

No. CV-15-02157

Dear Counselors:

I write on behalf of Plaintiffs regarding three document discovery issues. 

Mr. Marks stated during the April 25th conference that he believes the parties 

may be able to resolve certain outstanding disputes. We therefore want to meet and 

confer with you once more before seeking relief from the Court, pursuant to whatever 

process the Court directs the parties to follow.

Plaintiffs currently have three document-related disputes with ARCP: (1) 

searches of documents held by six additional custodians; (2) the addition of four 

categories of search terms; and (3) the amendment of ARCP’s responses to Plaintiffs’ 

document requests to acknowledge that it will produce documents beyond those produced 

in the SDNY. Action that are responsive to Plaintiffs’ requests. We summarize Plaintiffs’ 

position on these three disputes below, but do not repeat the long history of our meeting 

and conferring, which is reflected in our prior letters. 

Please send us any compromise you wish us to consider this week. We would 

like to complete any meet and confer early next week, so that we can then proceed with 

any necessary motion practice after the Court enters its order. 

Custodians

Plaintiffs request that ARCP agree to search the documents of six (6) additional 

custodians: ARCP’s current Chief Accounting Officer (Gavin Brandon) and the “Cole 

Executives” (Christopher H. Cole, Kirk McAllister Jr., Marc T. Nemer, Jeffrey C. 

Holland, and Stephen Keller). As you know, Plaintiffs had no involvement in the 

Case 2:15-cv-02157-JAS Document 281-1 Filed 05/25/18 Page 33 of 132
May 2, 2018

Page 2

selection of any custodians in the SDNY Action, and ARCP has not included any 

additional custodians based on Plaintiffs’ requests. 

Brandon

In November 2016, ARCP identified Mr. Brandon in its initial disclosures as one 

of the “individuals likely to have discoverable information.” As a result, in December 

2016, Plaintiffs asked ARCP to include Mr. Brandon as a custodian. Nonetheless, ARCP 

opposed that request or alternatively sought to narrow the scope of any collection and 

review of Mr. Brandon’s documents. Most recently, on January 9, 2018, ARCP proposed 

production of Mr. Brandon’s documents for the limited time period of October 28, 2014 

through March 31, 2015, and limited to a small set of seven searches. As explained in 

my letters dated April 12, 20, and 24, 2018, Mr. Brandon is likely to have relevant 

documents responsive to Plaintiffs’ requests outside of that time frame and beyond the 

scope of the proposed search terms. ARCP’s proposed limitations therefore will result in 

ARCP withholding relevant documents from Plaintiffs. Plaintiffs do not agree to this 

proposed compromise. ARCP should collect, review, and produce Mr. Brandon’s 

documents for the full time period using the full set of search terms. 

Cole Executives

By letter dated April 10, 2018, we asked ARCP to agree to add the Cole 

Executives as custodians.1 As we explained, Plaintiffs sought production of documents 

from the Cole Executives directly through document subpoenas. The Cole Executives’

objections and responses advise that they do not currently possess the requested

documents, and that as a result of the Cole merger, the documents are in the possession of 

ARCP. The ARC Defendants also confirmed in a letter that they do not possess 

documents for any of the Cole Executives. 

Although the Cole Executives were named as defendants in the SDNY Action, 

they were dropped from that action, and we understand that as a result none of their 

documents have yet been collected or produced (apart from Mr. Cole’s CV). The Cole 

Executives’ files, including emails and other documents, likely contain documents 

relevant to Plaintiffs’ claims relating to the Cole merger and responsive to Plaintiffs’ 

requests. Class counsel in the SDNY Action listed Mr. Cole and Mr. McAllister in their 

list of 45 proposed deponents, and we may seek to depose the other three Cole Executives. 

These documents are necessary to prepare for those depositions as well. 

 

1 We proposed specific search terms in our April 10 letter, but that was without 

limitation. It may be that there are additional search terms needed in connection with 

their documents, such as code names used by the Cole Executives for the merger. 

Case 2:15-cv-02157-JAS Document 281-1 Filed 05/25/18 Page 34 of 132
May 2, 2018

Page 3

Searching the files of the Cole Executives is warranted and proportional.

Plaintiffs’ claims focus on the Cole merger, and we have served requests seeking 

documents concerning that merger. On March 22, 2013, ARCP issued a press release 

stating: “ARCP’s management expressed interest in acquiring CCPT III on numerous 

occasions over the past two months. First, ARCP expressed interest through Goldman 

Sachs, CCPT III’s financial advisor; and then, ARCP expressed interest directly to CCPT 

III's board of directors and management.” Given the involvement of certain 

intermediaries, such as Goldman Sachs, the Cole Executives likely have documents 

regarding ARCP that cannot be obtain from the files of the ARCP custodians. We also 

believe that the Cole Executives’ files would include documents concerning Cole’s 

public assertion that ARCP’s offer reflected “highly speculative engineering” and other 

criticisms of ARCP in the lead up to the merger. 

We never received a response and do not know ARCP’s position on this request. 

Search Terms

Since December 2016, Plaintiffs have sought to negotiate a reasonable and 

proportional set of additional searches. Plaintiffs had no input regarding the searches run 

in the SDNY Action, and we seek to negotiate the first set of searches for this action. On 

January 11, 2018, Plaintiffs sent their fifth proposal for this search, which refined the 

search from our original proposal in an effort to address issues raised by ARCP.

As described in my January 11, 2018 letter, Plaintiffs seek to have ARCP apply 

four categories of additional searches: (1) three searches to identify documents 

concerning Defendants’ Arizona activities; (2) three searches to identify documents 

concerning the Cole transaction; (3) four searches to identify documents concerning 

Plaintiffs and their investments; and (4) and nine searches to identify documents that are 

otherwise relevant to Plaintiffs’ claims based on searches that the ARC Defendants 

already agreed to run and we believe ran on their documents. 

We appear to be at an impasse. According to Mr. Ohring’s January 23, 2018 

letter, Plaintiffs’ proposed searches yields about 136,500 additional documents. ARCP 

proposed a more limited set of searches yielding 8,951 additional documents. Plaintiffs 

narrowed their requests in various ways, including by imposing certain time period and 

custodian limitations, and we believe that ARCP’s proposal will result in ARCP 

withholding many relevant and responsive documents. Based on our various revisions, 

Plaintiffs do not seek to have ARCP review every document containing the word 

“Arizona” as suggested at the conference, and we have instead sought to limit our 

searches in various ways to reduce the burden on ARCP. 

Case 2:15-cv-02157-JAS Document 281-1 Filed 05/25/18 Page 35 of 132
May 2, 2018

Page 4

As summarized below, Plaintiffs believe that all four categories of additional 

searches are fair and proportional under the circumstances. Defendants’ fraud caused 

Plaintiffs losses of almost $500 million. It is not disproportional or unduly burdensome 

for Plaintiffs to now seek documents responsive to their requests based on these 

additional searches, and 136,500 is not a huge number of documents. As a practical 

matter, the protective order includes a claw back provision. ARCP can apply and 

produce these documents with no further review if it wishes to do that, and there is no 

basis for ARCP to claim any undue or disproportional burden.

The depositions to date also underscore the importance of a more fulsome 

document production. These deponents do not possess remotely comprehensive 

memories regarding issues such as the extent of Defendants’ Arizona contacts; the nature, 

purpose, and details regarding the Cole merger; or the extent to which index funds in 

general and Vanguard in particular were targeted as part of Defendants’ fraud. In the first 

deposition, the witness testified approximately 350 times that he did not remember or did 

not recall the information responsive to the question – obviously underlining the 

importance of documents to fill out such an astonishing lack of memory. Far from 

substituting for fuller document production, the depositions will in significant part 

depend on such production.

Arizona Activities

Defendants contend that the evidence will “unequivocally” show that Arizona law 

should not apply to Plaintiffs’ state law claim, and that they will seek summary judgment 

on the basis of the purported lack of Defendants’ Arizona contacts. ARCP at the same 

time refuses to apply Plaintiffs’ Arizona-related search terms. This is improper, and 

prejudicial to Plaintiffs. These search terms are narrowly tailored – limited to specific 

time periods, to specific custodians, and to specific sources of documents. Any burden 

on the Company Defendants exists only because there are thousands of documents 

containing these relevant terms that ARCP has not yet reviewed or produced. Indeed, 

Plaintiffs would have expected Defendants to have already collected and reviewed these 

documents before making representation to the Court regarding what the evidence 

“unequivocally” will demonstrate regarding Defendants’ Arizona contacts and activities.

Cole Merger

The details of and communications regarding the negotiation, execution, and the 

results of the ARCP-Cole merger are key to Plaintiffs’ specific theory of the case. Yet 

ARCP has resisted searching for and producing documents specific to the Cole merger. 

ARCP has not searched, for example, for documents containing the code names that 

Defendants used for the transaction and the entities involved in the transaction, such as 

“Camel” and “Chicago” (both referring to Cole entities) and “Project Camel,” “Project

Case 2:15-cv-02157-JAS Document 281-1 Filed 05/25/18 Page 36 of 132
May 2, 2018

Page 5

Geronimo,” “Project Chicago,” and “Project Windy City” (the terms used by ARCP to 

refer to those merger-related efforts). These are basic, even startling, omissions. The 

evidence obtained to date reflects both the motive and opportunity to defraud investors in 

connection with that massive acquisition, and Plaintiffs fairly seek additional documents 

concerning that key transaction. Plaintiffs reasonably proposed search terms to identify 

such documents, along with searches targeting communications with Cole and key 

documents concerning the Cole transaction. ARCP’s refusal to run such terms is 

unreasonable.

Vanguard

Plaintiffs proposed four searches to identify documents concerning Plaintiffs and 

their investments in ARCP. These include, for example, the eminently reasonable 

proposed search term “Vanguard” in the From, To, or CC fields of any email, and a 

search for “Vanguard” combined with “index.” These documents are directly relevant to 

Plaintiffs’ theme – not present in the SDNY Action – that Defendants’ fraudulent 

misconduct targeted index funds in general and Vanguard in particular. ARCP is not 

entitled to limit searches to reduce Plaintiffs’ ability to try the case as they see fit. In 

declining to run a search like “Vanguard,” moreover, the Company Defendants take a 

position inconsistent with their insistence that Plaintiffs use “ARCP” and the names of 

other Defendants in Plaintiffs’ own searches for relevant documents.

Other

Plaintiffs asked ARCP to apply the same search terms that the ARC Defendants 

applied. Without any input from Plaintiffs, ARCP and the ARC Defendants decided to 

apply different search terms to different document custodians. Considering the prospect 

for abuse in this approach – the refusal to apply particular terms to particular custodians 

might, for example, exclude from production many relevant documents those custodians 

possess – Plaintiffs reasonably proposed that the Company Defendants apply each other’s 

search terms. The ARC Defendants agreed to apply some of those terms, but ARCP

refused across the board. This refusal is unreasonable

ARCP’s Deficient Responses

In response Plaintiffs’ document requests, ARCP repeatedly objected on the basis 

that it already produced documents in the SDNY Action and should not be required to 

produce any additional documents in this action. ARCP should amend those response to 

confirm that it will produce the requested the documents. This is necessary because 

ordering ARCP to include additional custodians and additional search terms will serve no 

purpose if ARCP then fails to produce non-privileged documents responsive to Plaintiffs’ 

Case 2:15-cv-02157-JAS Document 281-1 Filed 05/25/18 Page 37 of 132
May 2, 2018

Page 6

requests. Plaintiffs’ requests are straightforward, and there is no basis for ARCP to 

withhold non-privileged documents from Plaintiffs that are responsive to the requests. 

Sincerely,

Beko Reblitz-Richardson

cc: Keith Beauchamp, Esq.

Jonathan Sherman, Esq.

Edward J. Normand, Esq.

Joseph F. Kroetsch, Esq.

Nathan Holcomb, Esq.

Case 2:15-cv-02157-JAS Document 281-1 Filed 05/25/18 Page 38 of 132
EXHIBIT 7

Case 2:15-cv-02157-JAS Document 281-1 Filed 05/25/18 Page 39 of 132
MILBANK, TWEED, HADLEY & MCˍCLOY LLP

LOS ANGELES

424-386-4000

FAX: 213-629-5063

WASHINGTON, D.C.

202-835-7500

FAX: 202-835-7586

LONDON

44-20-7615-3000

FAX: 44-20-7615-3100

FRANKFURT

49-69-71914-3400

FAX: 49-69-71914-3500

MUNICH

49-89-25559-3600

FAX: 49-89-25559-3700

28 LIBERTY STREET

NEW YORK, NY 10005

BEIJING

8610-5969-2700

FAX: 8610-5969-2707

HONG KONG

852-2971-4888

FAX: 852-2840-0792

SEOUL

822-6137-2600

FAX: 822-6137-2626

SINGAPORE

65-6428-2400

FAX: 65-6428-2500

TOKYO

813-5410-2801

FAX: 813-5410-2891

SÃO PAULO

55-11-3927-7700

FAX: 55-11-3927-7777

212-530-5000

FAX: 212-530-5219

Jonathan Ohring

DIRECT DIAL NUMBER

212-530-5147

E-MAIL: JOhring@milbank.com

January 23, 2018

VIA EMAIL

Mr. Beko O. Reblitz-Richardson, Esq.

Boies, Schiller & Flexner LLP

1999 Harrison Street, Suite 900

Oakland, CA 94612

Re: Vanguard Specialized Funds, et al. v. VEREIT, Inc., et al., 

No. 2:15-cv-02157-ROS 

Dear Mr. Reblitz-Richardson:

We write on behalf of Defendants VEREIT, Inc. and VEREIT Operating 

Partnership, L.P. (collectively, the “VEREIT Defendants”) in response to your January 11, 2018 

letter.

In your letter, you complain that the VEREIT Defendants’ proposed compromise 

is “insufficient” because the VEREIT Defendants “have not agreed to apply any of the searches 

Plaintiffs proposed regarding Defendants’ Arizona activities”—presumably, Search Nos. 9-12 in 

Appendix A to your December 20, 2017 letter. But the VEREIT Defendants had good reason to 

decline to run those searches. Those proposed searches resulted in approximately 136,500

additional unique hits. Review of those documents would be unduly burdensome and grossly 

disproportionate to the needs of the case, particularly in light of the 252,997 documents 

(comprising 3,713,281 pages of documents) already produced by the VEREIT Defendants. 

Plaintiffs have made no attempt to explain why they cannot obtain information regarding 

Defendants’ Arizona activities through alternative, far less burdensome means, including simply 

asking witnesses appropriate questions during their depositions. Indeed, Plaintiffs engaged in 

Case 2:15-cv-02157-JAS Document 281-1 Filed 05/25/18 Page 40 of 132
Mr. Beko O. Reblitz-Richardson, Esq.

January 23, 2018

Page 2

extensive questioning of Mr. Rudd during his deposition today regarding the location of 

VEREIT’s accounting activities.

Moreover, Plaintiffs’ proposed “compromise” in your January 11 letter, which 

purportedly “reflects certain narrowing” of Plaintiffs’ proposal in your December 20 letter, 

represents almost no narrowing at all. It appears that the only changes to the 21 searches 

proposed in your December 20 letter were the dropping of Search Nos. 19 and 20, acceptance of 

the VEREIT Defendants’ proposed modifications to Search Nos. 18 and 21, and a narrowing of 

Search No. 9. Plaintiffs did not propose any narrowing with respect to Search Nos. 1-8 or 10-17. 

Plaintiffs’ proposed “compromise” would result in 159,303 additional unique hits, which 

remains unduly burdensome and grossly disproportionate to the needs of the case. Accordingly, 

the VEREIT Defendants will not apply the searches set forth in your January 11 letter.

In response to your request for information regarding the number of documents 

reviewed by the VEREIT Defendants for production in the SDNY Actions, we do not believe 

that information is relevant to an assessment of the additional burden of Plaintiffs’ proposed 

searches, which is disproportionate to the information that Plaintiffs seek to obtain beyond the 

nearly 4 million pages of documents that the VEREIT Defendants have already produced. 

Nonetheless, the number of documents reviewed by the VEREIT Defendants in response to the 

search terms utilized in the SDNY Class Action is approximately 318,098.

1

 

In response to your request for hit counts for the VEREIT Defendants’ proposed 

compromise from my January 9 letter, please see the table below:

1 This count does not include the number of documents reviewed in connection with productions to regulators, 

which were also produced in the SDNY Class Action and this action.

 

Case 2:15-cv-02157-JAS Document 281-1 Filed 05/25/18 Page 41 of 132
Mr. Beko O. Reblitz-Richardson, Esq.

January 23, 2018

Page 3

Search 

# Search String “Hits” on All Custodial Documents2

9

(Cole* or CCPT) w/10 (fraud* or conceal* or fals* or 

lie or unlawful or illegal or unethical or erroneous or 

manipulate* or decept* or mistake* or improper* or 

disaster or terrible or "red flag" or incorrect or violat* 

or missclassif* or overstat* or understat* or noncompliant or inappropriate)

3,138

13 VFTC* 15

14 Vanguard 126

15 "Vanguard REIT" 522

16 Vanguard / 10 (index* or indices) and [@arcpreit.com 

or @arlcap.com within “from” field in email] 3,085

17 @cole! 547

18 "Project Camel" or Geronimo or "Windy City" or 

"Project Chicago" 5,396

21 "financial engineering" and not (dwight /2 grant) 347

TOTAL 8,951

In your letter, you request assurance that the VEREIT Defendants’ proposed 

compromise “does not reflect an attempt to withhold documents from Plaintiffs that the 

[VEREIT] Defendants identified as significant but that have not yet been produced to Plaintiffs.” 

We hereby provide that assurance. The VEREIT Defendants’ proposed compromise is an effort 

to reduce undue burden and disproportionate review, not an attempt in any way to withhold 

documents that the VEREIT Defendants have identified as significant.

In your letter, you also ask whether the VEREIT Defendants intend to make 

representations to the Court regarding whether they reviewed a sample set of documents or

regarding the cost of reviewing such documents. We decline to provide Plaintiffs with a preview 

of the information that the VEREIT Defendants intend to provide to the Court in the event that 

Plaintiffs choose to seek relief from the Court, but we can assure you that we have taken all 

reasonable steps that are customary in document reviews of this nature to formulate our position 

on your requests. 

2 The hit counts for each search term are as of January 9, 2018, are subject to the limitations set forth in your 

December 20, 2017 proposal, inclusive of document families, and exclude documents previously produced or 

withheld as privileged in connection with productions to regulators or productions in the SDNY actions (and 

accordingly, this action). Each search was run across all previously-agreed custodians, for the time period February 

13, 2012 through March 31, 2015, except where otherwise indicated in your December 20, 2017 proposal.

 

Case 2:15-cv-02157-JAS Document 281-1 Filed 05/25/18 Page 42 of 132

EXHIBIT 8

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BAKER 

&

HOSTETLER LLP

ATTORNEYS AT LAW

LOS 

ANGELES

Keith Beauchamp (012434) 

Shelley Tolman (030945) 

COPPERSMITH BROCKELMAN PLC 

2800 North Central Avenue, Suite 1200 

Phoenix, AZ 85004 

T: 602.381.5490 

F: 602.224.6020 

kbeauchamp@cblawyers.com 

stolman@cblawyers.com

Jonathan Sherman (admitted pro hac vice) 

BOIES, SCHILLER & FLEXNER LLP 

5301 Wisconsin Avenue, N.W. 

Washington, DC 20015

T: 202.237.2727 

F: 202.237.6131 

jsherman@bsfllp.com 

[Additional Counsel Listed on Signature Page] 

Attorneys for Plaintiffs 

UNITED STATES DISTRICT COURT

DISTRICT OF ARIZONA

Vanguard Specialized Funds, et al.,

Plaintiffs,

v. 

VEREIT, Inc., et al.,

Defendants.

No. 15-CV-02157-PHX-ROS

PLAINTIFFS’ FIRST SET OF 

REQUESTS FOR PRODUCTION OF 

DOCUMENTS TO DEFENDANTS

Pursuant to Rules 26 and 34 of the Federal Rules of Civil Procedure, Plaintiffs, by 

and through their undersigned counsel, request that Defendants American Realty Capital 

Properties, Inc. (n/k/a VEREIT, Inc.), ARC Properties Operating Partnership L.P. (n/k/a

VEREIT Operating Partnership, L.P.), Nicholas S. Schorsch, David S. Kay, Brian S. 

Block, Lisa P. McAlister, Lisa Beeson, ARC Properties Advisors LLC, and AR Capital 

Case 2:15-cv-02157-JAS Document 281-1 Filed 05/25/18 Page 45 of 132
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&

HOSTETLER LLP

ATTORNEYS AT LAW

LOS 

ANGELES

2

LLC (“Defendants”) produce for inspection and copying the documents described herein 

that are in their possession, custody, or control, at the offices of Coppersmith Brockelman 

PLC LLP, 2800 North Central Avenue, Suite 1200, Phoenix, AZ 85004 and Boies,

Schiller & Flexner LLP 1999 Harrison Suite 900, Oakland, CA 94612, within thirty (30) 

days of the date hereof, or at such other time and place mutually agreed upon by the 

parties.

DEFINITIONS

To the extent used herein, the words and phrases set forth below shall have the 

following meanings: 

1. “Affiliate” of an entity means a person or entity that currently or 

previously, directly or indirectly, owns at least a portion of the first entity or vice versa, is 

under common partial ownership with the first entity, or can exercise significant authority 

over the decisions of the first entity or vice versa.

2. “Agent” of an entity means a person or other entity with apparent or actual 

authority to act on the first entity’s behalf for any purpose whatsoever, or any Affiliate or 

representative of the first entity, including but not limited to advisors, attorneys, 

consultants, employees, experts, fiduciaries, and insurers.

3. “ARCP” means American Realty Capital Properties, Inc. (n/k/a VEREIT, 

Inc.), including any of its present or former parents, subsidiaries, divisions, subdivisions, 

practice groups, departments, Affiliates, predecessors, successors, joint ventures, officers, 

directors, partners, principals, employees, representatives, professional staff members, 

attorneys, Agents, and all other Persons acting or purporting to act on its behalf.

4. “ARCP Securities” means the securities that form the basis of Plaintiffs’ 

claims in the above-captioned action.

5. “Communication” means any transmittal of information (in the form of 

facts, ideas, inquiries, or otherwise) whether orally or by document, telephone, telecopier, 

Case 2:15-cv-02157-JAS Document 281-1 Filed 05/25/18 Page 46 of 132
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mail, fax, email, voicemail, cellular phone text message, instant message, personal 

delivery, or by any other means, be they analog, electronic, or otherwise.

6. “Concerning” means reflecting, relating to, referring to, describing, 

discussing, evidencing, addressing, or constituting in any way.

7. “Plaintiffs” means, for these purposes, the plaintiffs in the above captioned 

action, including their employees, officers, directors, investment advisors, asset 

managers, or any employee or agent acting on any of their behalf, including without 

limitation Vanguard Group, Inc. 

8. “Document” has the same meaning and is equal in scope to the usage of the 

term “documents or electronically stored information” in Federal Rule of Civil Procedure 

34(a)(l)(A), and includes any writings, drawings, graphs, charts, photographs, sound 

recordings, images, and any other data or data compilations stored in any medium from 

which information can be obtained. A draft or non-identical copy is a separate document 

within the meaning of this term. Without limiting the aforementioned definitions, the 

term “Documents” includes both hard copy documents and electronically stored 

information (“ESI”), including email, instant messaging, shared network files, databases, 

any data on magnetic or optical storage media (e.g., servers, storage area networks, hard 

drives, backup tapes, CDs, DVDs, thumb/flash drives, floppy disks, or any other type of 

portable storage devices) stored as either an “active” or backup file, in its Native Format.

9. “Native Format” means the default format of a data file created by its 

associated software program (including all metadata). The native format is the original 

file format that the software application works with during creation, editing, or 

publication of a file.

10. “Person” means a natural person, group of natural persons acting as 

individuals, group of persons acting in a collective capacity (e.g., as a committee, board 

of directors, etc.), corporation, partnership, limited partnership, joint venture, limited 

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liability corporation, government or governmental agency, and/or any other incorporated 

or unincorporated business, government, or entity.

11. “You” or “Your” refers to each of the Defendants.

12. “Other ARCP Actions” refers to other actions pending against one or more 

of the Defendants that involve factual allegations that overlap with this action, including 

without limitation the actions pending in the Southern District of New York before Judge 

Hellerstein as 15-mc-00040, 15-cv-08464, 15-cv-08467, 15-cv-04107, 15-cv-08510, 15-

cv-08466, 15-cv-01291, 15-cv-6043, and 15-cv-8563. 

INSTRUCTIONS

1. “Including” shall be construed to include the phrase “but not limited to.”

2. The use of verb in any tense shall be construed to be in the tense necessary 

to bring within the scope of a request all responses that might otherwise be construed as 

outside its scope. 

3. In responding to these Requests, you shall produce all responsive 

documents (including those stored electronically), which are in your possession, custody 

or control, or in the possession, custody or control of your predecessors, successors, 

parents, subsidiaries, divisions or affiliates, or any of your respective directors, officers, 

managing agents, agents, employees, attorneys, accountants or other representatives. A 

document shall be deemed to be within your control if you have the right to secure the 

document or a copy of the document from another person having possession or custody 

of the document.

4. Plaintiffs reserve their right to request inspection of the original documents,

including those stored electronically, as they are kept in the usual course of business. If 

the original is not in your custody, then a copy thereof, and all non-identical copies which 

differ from the original or from the other copies produced for any reason, including, 

without limitation, the making of notes thereon.

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5. You are to produce each document requested herein in its entirety, without 

deletion or excision (except on privilege grounds), regardless of whether you consider the 

entire document to be relevant or responsive to the Requests.

6. If production of documents is withheld on privilege grounds, as to each 

such withheld document, state the following information:

(a) which privilege is claimed;

(b) who is asserting the privilege;

(c) a precise statement of the facts upon which said claim of privilege is 

based;

(d) the following information describing each purportedly privileged

document:

i) a brief description sufficient to identify its nature, i.e., agreement,

letter, memorandum, type, etc.;

ii) a brief description sufficient to identify its subject matter and

purpose of the document;

(e) the date it was prepared;

(f) the date it bears;

(g) the date it was sent; 

(h) the date it was received;

(i) the identity of the person preparing it;

(j) the identity of the person sending it;

(k) the identity of each person to whom it was sent or was to have been 

sent, including all addresses and all recipients of copies;

(l) a statement as to whom each identified person represented or purported 

to represent at all relevant times; and

(m) all persons to whom its contents have been disclosed; and

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(n) a precise description of the place where each copy of that document is 

kept, including the title or description of the file in which said document 

may be found and the location of such file.

7. If a portion of any document responsive to these Requests is withheld under 

claim of privilege, any non-privileged portion of such document must be produced with 

the portion claimed to be privileged redacted. Whenever a document is not produced in 

full or is produced in redacted form, so indicate on the document, identifying those 

portions of the document which are not being produced. For each document that is 

redacted, in addition to providing the redacted version of the document, the parties agree 

to furnish logs which comply with the legal requirements under federal law, but at a 

minimum will include the following information: 

(a) The Begin Production ID of the document;

(b) The End Production ID of the document;

(c) A description of why privilege is being asserted over the 

document; and

(d) Which privilege is asserted.

8. Privilege and redaction logs may be produced on a rolling basis. The 

producing party shall provide the logs and supplements for each production within thirty 

(30) days of each given production date.

9. If a document responsive to these Requests was at any time in your 

possession, custody or control but is no longer available for production, as to each such 

document state the following information:

(a) whether the document is missing or lost;

(b) whether it has been destroyed;

(c) whether the document has been transferred or delivered to another 

person and, if so, at whose request;

(d) whether the document has been otherwise disposed of; and

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(e) a precise statement of the circumstances surrounding the 

disposition of the document and the date of its disposition.

10. This is a continuing request for the production of documents. If, after 

making your initial production, You obtain or become aware of any further documents 

responsive to these Requests, You are required by Rule 26(e) of the Federal Rules of 

Civil Procedure to produce such additional documents to Plaintiffs.

11. Unless otherwise specified, the relevant time period for these Requests is 

July 1, 2011 to the date of service of these requests (the “Relevant Time Period”). The 

Relevant Time Period covers documents concerning events and circumstances during 

such period, even though dated, prepared, generated, used, or received prior or 

subsequent to that period.

12. Plaintiffs do not seek the duplicative production of any documents. To the 

extent Defendants produce to Plaintiffs documents produced in the Other ARCP Actions, 

as requested by Plaintiffs, then Defendants need not re-produce to Plaintiffs any 

duplicates of those documents in response to these Requests. 

FORM OF PRODUCTION

A. Production of Hard Copy Documents – Format

Hard copy documents should be scanned as single-page, Group IV, 300 DPI TIFF 

images with an .opt image cross-reference file and a delimited database load file (i.e. 

.dat). The database load file should contain the following fields: “BEGNO,” “ENDNO,” 

“PAGES,” “VOLUME” and “CUSTODIAN.” The documents should be logically 

unitized (i.e., distinct documents shall not be merged into a single record, and single 

documents shall not be split into multiple records) and be produced in the order in which 

they are kept in the usual course of business. If an original document contains color to 

understand the meaning or content of the document, the document shall be produced as 

single-page, 300 DPI JPG images with JPG compression and a high-quality setting as to 

not degrade the original image. Multi-page OCR text for each document should also be 

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provided. The OCR software shall maximize text quality over process speed. Settings 

such as “auto-skewing” and “auto-rotation” should be turned on during the OCR process.

B. Production of ESI

1. Format: Electronically stored information (“ESI”) should be produced in 

singlepage, black and white, TIFF Group IV, 300 DPI TIFF images, with the exception of 

spreadsheet type files, source code, audio and video files, which should be produced in 

native format. TIFFs should show any and all text and images which would be visible to 

the reader using the native software that created the document. For example, TIFFs of email messages should include the BCC line. PowerPoint documents shall be processed 

with hidden slides and all speaker notes unhidden, and shall be processed to show both 

the slide and the speaker’s notes on the TIFF image. If an original document contains 

color, the document should be produced as single-page, 300 DPI JPG images with JPG 

compression and a high quality setting as to not degrade the original image. Parties are 

under no obligation to enhance an image beyond how it was kept in the usual course of

business.

2. Format – Native Files: If a document is produced in native format, a singlepage, Bates-stamped image slip sheet stating the document has been produced in native 

format should also be provided. Each native file should be named according to the Bates 

number it has been assigned, and should be linked directly to its corresponding record in 

the load file using the NATIVELINK field. To the extent that either party believes that 

specific documents or classes of documents, not already identified within this protocol, 

should be produced in native format, the parties should meet and confer in good faith.

3. De-Duplication: Each party shall remove exact duplicate documents based 

on MD5 or SHA-1 hash values, at the family level. Attachments should not be eliminated 

as duplicates for purposes of production, unless the parent e-mail and all attachments are 

also duplicates. An email that includes content in the BCC or other blind copy field shall 

not be treated as a duplicate of an email that does not include content in those fields, even 

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if all remaining content in the email is identical. Removal of near-duplicate documents 

and e-mail thread suppression is not acceptable. De-duplication should be done across the 

entire collection (global de-duplication) and the CUSTODIAN field should list each 

custodian, separated by a semi-colon, who was a source of that document and the 

FILEPATH field will list each file path, separated by a semi-colon, that was a source of 

that document. Should the CUSTODIAN or FILEPATH metadata fields produced

become outdated due to rolling productions, an overlay file providing all the custodians 

and file paths for the affected documents should be produced prior to substantial 

completion of the document production. 

4. Technology Assisted Review: Predictive coding/technology-assistedreview shall not be used for the purpose of culling the documents to be reviewed or 

produced without notifying the requesting party prior to use and with ample time to meet 

and confer in good faith regarding a mutually agreeable protocol for the use of such 

technologies.

5. Metadata: All ESI shall be produced with a delimited, database load file 

that contains the metadata fields listed in Table 1, attached hereto. The metadata 

produced should have the correct encoding to enable preservation of the documents’ 

original language.

6. Embedded Objects: The parties should meet and confer over the inclusion 

or exclusion of embedded files from the production.

7. Compressed Files Types: Compressed file types (i.e. .ZIP, .RAR, .CAB, .Z) 

should be decompressed so that the lowest level document or file is extracted.

8. Structured Data: To the extent a response to discovery requires production 

of electronic information stored in a database, including the production of text messages 

or similar communications, the parties will meet and confer regarding methods of 

production. The parties will consider whether all relevant information may be provided 

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by querying the database for discoverable information and generating a report in a 

reasonably usable and exportable electronic file.

9. Exception Report: The producing party shall compile an exception report 

enumerating any unprocessed or unprocessable documents, their file type and the file 

location.

10. Encryption: To maximize the security of information in transit, any media 

on which documents are produced may be encrypted. In such cases, the producing party 

shall transmit the encryption key or password to the receiving party, under separate 

cover, contemporaneously with sending the encrypted media.

11. Redactions: If documents that the parties have agreed to produce in native 

format need to be redacted, the parties should meet and confer regarding how to 

implement redactions while ensuring that proper formatting and usability are maintained.

DOCUMENT REQUESTS

REQUEST NO. 1:

Documents sufficient to identify by name, title, and last known contact 

information Your current or former employees who had any Communication with the 

Plaintiffs regarding the acts and events underlying the subject matter of this Action, 

including without limitation the offer or sale of any security issued by You.

REQUEST NO. 2:

Documents reflecting or Concerning Communications with the Plaintiffs.

REQUEST NO. 3:

Documents reflecting or Concerning meetings with, or presentations to, the 

Plaintiffs.

REQUEST NO. 4:

Documents reflecting or Concerning the Plaintiffs’ investments in ARCP

Securities.

REQUEST NO. 5:

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Documents or information provided to the Plaintiffs Concerning ARCP. 

REQUEST NO. 6:

All Documents You produced and produce and that were and are produced to You 

in the Other ARCP Actions.

REQUEST NO. 7:

All disclosures and written discovery You produced and produce and that were 

and are produced to You in the Other ARCP Actions, including without limitation initial 

disclosures, document requests and responses, interrogatories and responses, deposition 

notices and responses, requests for admission and responses, and subpoena and 

responses. 

REQUEST NO. 8:

All Documents Concerning Your activities in Arizona, including without

limitation the activities described in paragraph 21 of the Complaint. 

REQUEST NO. 9:

All Documents Concerning any activities in Arizona in connection with any 

representations described in the Complaint, including without limitation representations 

regarding AFFO, financial results, and internal controls. 

REQUEST NO. 10:

All Documents reflecting or Concerning the involvement of accounting personnel 

located in Arizona in the preparation of the ARCP financial statements identified in the 

Complaint. 

REQUEST NO. 11:

All Documents reflecting or Concerning the decision and efforts to acquire 

Arizona-based Cole Real Estate Investments, Inc.

REQUEST NO. 12:

All Documents reflecting or Concerning the decision to relocate ARCP’s 

headquarters to Arizona.

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REQUEST NO. 13:

Documents sufficient to identify all employees of Defendants who have been or 

currently are based in Arizona. 

REQUEST NO. 14:

Documents sufficient to identify by name, title, and location (and any changes to 

title and location) all individuals involved with any representations described in the 

Complaint, including without limitation representations regarding AFFO, financial 

results, and internal controls. 

REQUEST NO. 15:

All written agreements between You and any other Defendant.

REQUEST NO. 16:

All written agreements between You and RCAP Holdings, LLC.

REQUEST NO. 17:

All settlement agreements involving You and Concerning or arising out of any of 

the factual allegations in the Complaint. 

REQUEST NO. 18:

Documents and communications supporting or Concerning any affirmative

defense(s) asserted by You in Your Answer and any other defenses or factual arguments 

You have pleaded in this case or intend to plead.

DATED: October 24, 2016

COPPERSMITH BROCKELMAN PLC

By: s/ Keith Beauchamp

Keith Beauchamp

Shelley Tolman

Jonathan Sherman (admitted pro hac vice)

BOIES, SCHILLER & FLEXNER LLP

5301 Wisconsin Avenue, N.W.

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Washington, DC 20015

T: 202.237.2727 

F: 202.237.6131 

jsherman@bsfllp.com

Edward Normand (admitted pro hac vice)

Joseph Kroetsch (admitted pro hac vice)

Nathan Holcomb (admitted pro hac vice)

BOIES, SCHILLER & FLEXNER LLP

333 Main Street

Armonk, NY 10504

T: 914.749.8200 

F: 914.749.8300 

enormand@bsfllp.com

jkroetsch@bsfllp.com

nholcomb@bsfllp.com

Beko Reblitz-Richardson (admitted pro hac vice)

BOIES, SCHILLER & FLEXNER LLP

1999 Harrison Street, Suite 900

Oakland, CA 94612

T: 510.874.1000

F: 510.874.1460

brichardson@bsfllp.com

Attorneys for Plaintiffs

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CERTIFICATE OF SERVICE

I hereby certify that on October 24, 2016, I caused the foregoing to be served via 

email on counsel for Defendants

/s/ Tonia Roby

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Keith Beauchamp (012434) 

Shelley Tolman (030945) 

COPPERSMITH BROCKELMAN PLC 

2800 North Central Avenue, Suite 1200 

Phoenix, AZ 85004 

T: 602.381.5490 

F: 602.224.6020 

kbeauchamp@cblawyers.com 

stolman@cblawyers.com

Jonathan Sherman (admitted pro hac vice) 

BOIES SCHILLER FLEXNER LLP 

5301 Wisconsin Avenue, N.W. 

Washington, DC 20015

T: 202.237.2727 

F: 202.237.6131 

jsherman@bsfllp.com 

[Additional Counsel Listed on Signature Page] 

Attorneys for Plaintiffs 

UNITED STATES DISTRICT COURT

DISTRICT OF ARIZONA

Vanguard Specialized Funds, et al.,

Plaintiffs,

v. 

VEREIT, Inc., et al.,

Defendants.

No. 15-CV-02157-PHX-ROS

PLAINTIFFS’ SECOND SET OF 

REQUESTS FOR PRODUCTION OF 

DOCUMENTS TO DEFENDANTS

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Pursuant to Rules 26 and 34 of the Federal Rules of Civil Procedure, Plaintiffs, by 

and through their undersigned counsel, request that Defendants American Realty Capital 

Properties, Inc. (n/k/a VEREIT, Inc.), ARC Properties Operating Partnership L.P. (n/k/a 

VEREIT Operating Partnership, L.P.), ARC Properties Advisors LLC, and AR Capital 

LLC (“Defendants”) produce for inspection and copying the documents described herein 

that are in their possession, custody, or control, at the offices of Coppersmith Brockelman 

PLC LLP, 2800 North Central Avenue, Suite 1200, Phoenix, AZ 85004 and Boies 

Schiller & Flexner LLP 1999 Harrison Suite 900, Oakland, CA 94612, within thirty (30) 

days of the date hereof, or at such other time and place mutually agreed upon by the 

parties.

DEFINITIONS

To the extent used herein, the words and phrases set forth below shall have the 

following meanings: 

1. “Andruskevich” means Thomas A. Andruskevich, a former ARCP Director.

2. “AFFO” means funds for operations adjusted to exclude acquisition-related fees

and expenses, amortization of above-marketplace assets and liabilities, amortization of deferred 

financing costs, straight-line rent, non-cash mark-to-market adjustments, amortization of

restricted stock, non-cash compensation, and gains and losses.

3. “ARC Advisors” means ARC Properties Advisors LLC.

4. “ARC Properties” means ARC Properties Operating Partnership L.P. 

5. “ARCP” refers to American Realty Capital Properties, Inc., n/k/a Vereit, Inc.,

any of its officers, directors, employees, direct or indirect subsidiaries, and divisions or affiliates 

(foreign and domestic).

6. “AR Capital” means AR Capital LLC.

7. “Beeson” means Lisa E. Beeson, ARCP’sformer Chief Operating Officer (“COO”) 

and President.

8. “Block” means Brian S. Block, ARCP’s former Chief Financial Officer (“CFO”) 

and Executive Vice President.

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9. “Board of Directors” or “Board” means ARCP’s Board of Directors, the

director committees thereof, and any special committees.

10. “Budko” means Peter M. Budko, ARCP’s former Executive Vice President 

and Chief Investment Officer.

11. “Bowman” means Scott J. Bowman, a former ARCP Director.

12. “Communication” means any transmittal of information (in the form of facts,

ideas, inquiries, or otherwise) whether orally or by document, telephone, telecopier, mail, fax, email, voicemail, cellular phone text message, instant message, personal delivery, or by any other

means, be they analog, electronic or otherwise.

13. “Complaint” means the complaint filed by Plaintiffs in the Arizona District Court 

on October 27, 2015.

14. “Concerning” means reflecting, relating to, referring to, describing, discussing, 

evidencing, addressing or constituting in any way.

15. “Directors” means Kahane, Michelson, Stanley, Rendell, Bowman, 

Andruskevich, Sealy and Frank.

16. “Document” has the same meaning and is equal in scope to the usage of the

term “documents or electronically stored information” in Fed. R. Civ. P. 34(a)(1)(A), and 

includes any writings, drawings, graphs, charts, photographs,sound recordings, images, and any

other data or data compilations stored in any medium from which information can be obtained. 

A draft or non- identical copy is a separate document within the meaning of this term. Without

limiting the aforementioned definitions, the term “documents” includes both hard copy 

documents and electronically stored information (“ESI”), including e-mail, instant messaging,

shared network files, databases, any data on magnetic or optical storage media (e.g., servers,

storage area networks, hard drives, backup tapes, CDs, DVDs, thumb/flash drives, floppy disks, 

or any other type of portable storage devices) stored as either an “active” or backup file in its 

native format.

17. “DOJ” refers to the U.S. Department of Justice.

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18. “Financial results” means, but is not limited to, the following (whether audited

or unaudited and whether final, interim, pro forma, complete or partial): Forms 10-K, 10-Q and

8-K, Registration Statements and Prospectuses, and internal consolidated and non-consolidated

balance sheets,statements of earnings, additional paid in capital, retained earnings,source and

application of funds, cash flow, projections, and notes that pertain to the applicable Defendant’s

past or present financial condition.

19. “Frank” means Bruce D. Frank, a former ARCP Director.

20. “Jones” means Brian D. Jones, ARCP’s former COO.

21. “Kahane” means William M. Kahane, a former ARCP Director.

22. “Kay” means David S. Kay, ARCP’s former President and former CEO.

23. “Managers” means Schorsch, Kay, Block, Weil, Budko,Jones, McAlister and 

Beeson.

24. “McAlister” means Lisa P. McAlister, ARCP’s former Senior Vice President 

and CAO.

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

electronic connection among natural persons, whether or not such presence was by chance or prearranged and whether or not the meeting was formal or informal or occurred in connection with 

some other activity.

26. “Michelson” means Leslie D. Michelson, a former ARCP Director.

27. “OPP” means ARCP’s Multi-Year Outperformance Plan.

28. “Policy” or “policies” means any rule, procedure, practice or course of

conduct, whether formal or informal, written or unwritten, recorded or unrecorded, which was

recognized or followed, explicitly or implicitly.

29. “Rendell” means Edward G. Rendell, a former ARCP Director.

30. “Restatement” means the restated financial results for fiscal year (“FY”) 2012, 

FY 2013, 1Q14 and 2Q14 that ARCP filed with the SEC on March 2, 2015.

31. “Sealy” means Scott P. Sealy, Sr., a former ARCP Director.

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32. “Schorsch” means Nicholas S. Schorsch, former CEO and Chairman of the Board 

for ARCP.

33. “SEC” means the U.S. Securities and Exchange Commission.

34. “Stanley” means William G. Stanley, a former ARCP Director.

35. “Weil” means Edward M. Weil, ARCP’sformer President, Treasurer and 

Secretary.

36. “You” or “your” means the persons or entities responding to these requests.

INSTRUCTIONS

1. Including. “Including” shall be construed to include the phrase “but not limited

to.”

2. Tense. The use of a verb in any tense shall be construed to be in the tense

necessary to bring within the scope of a request all responses that might otherwise be construed

as outside its scope.

3. In responding to these requests, you shall produce all responsive documents 

(including those stored electronically), which are in your possession, custody or control, or in 

the possession, custody or control of your predecessors, successors, parents, subsidiaries,

divisions or affiliates, or any of your respective directors, officers, managing agents, agents, 

employees, attorneys, accountants or other representatives. A document shall be deemed to be

within your control if you have the right to secure the document or a copy of the document from

another person having possession or custody of the document.

4. Plaintiffs reserve their right to request inspection of the original documents,

including those stored electronically, as they are kept in the usual course of business. If the

original is not in your custody, then a copy thereof, and all non-identical copies which differ from

the original or from the other copies produced for any reason, including, without limitation, the

making of notesthereon.

5. You are to produce each document requested herein in its entirety, without deletion

or excision (except on privilege grounds), regardless of whether you consider the entire document

to be relevant or responsive to the requests.

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6. If production of documents is withheld on privilege grounds, as to each such

withheld document, state the following information:

(a) which privilege is claimed;

(b) who is asserting the privilege; 

(c) a precise statement of the facts upon which said claim of privilege is based; 

(d) the following information describing each purportedly privileged

document: 

(i) a brief description sufficient to identify its nature, e.g., agreement, 

letter, memorandum, type, etc.;

(ii) a brief description sufficient to identify itssubject matter and

purpose of the document;

(iii) the date it was prepared,

(iv) the date it bears;

(v) the date it was sent;

(vi) the date it was received;

(vii) the identity of the person preparing it; 

(viii) the identity of the person sending it;

(ix) the identity of each person to whom it was sent or was to have

been sent, including all addresses and all recipients of copies;

(x) a statement as to whom each identified person represented 

or purported to represent at all relevant times; and

(xi) all persons to whom its contents have been disclosed; and

(e) a precise description of the place where each copy of that document is

kept, including the title or description of the file in which said document

may be found and the location of such file.

7. If a portion of any document responsive to these requests is withheld under claim

of privilege, any non-privileged portion of such document must be produced with the portion

claimed to be privileged redacted. Whenever a document is not produced in full or is produced

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in redacted form, so indicate on the document, identifying those portions of the document which

are not being produced. For each document that is redacted, in addition to providing the redacted

version of the document, the parties agree to furnish logs which comply with the legal

requirements under federal law, but at a minimum will include the following information:

(a) the Begin Production ID of the document; 

(b) the End Production ID of the document;

(c) a description of why privilege is being asserted over the document; and

(d) which privilege is asserted.

8. Privilege and redaction logs may be produced on a rolling basis. The producing

party shall provide the logs and supplements for each production within 30 days of each given

production date.

9. If a document responsive to these requests was at any time in your possession, 

custody or control but is no longer available for production, as to each such document state the 

following information:

(a) whether the document is missing or lost; 

(b) whether it has been destroyed;

(c) whether the document has been transferred or delivered to another person

and, if so, at whose request;

(d) whether the document has been otherwise disposed of; and

(e) a precise statement of the circumstances surrounding the disposition of

the document and the date of its disposition.

10. This is a continuing request for the production of documents. If, after making

your initial production, you obtain or become aware of any further documents responsive to

these requests, you are required by Fed. R. Civ. P. 26(e) to produce such additional

documents to Plaintiffs.

FORM OF PRODUCTION

A. Production of Hard Copy Documents – Format

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Hard copy documents should be scanned as single-page, Group IV, 300 DPI TIFF

images with an .opt image cross-reference file and a delimited database load file (i.e., .dat).

The database load file should contain the following fields: “BEGNO,” “ENDNO,” “PAGES,”

“VOLUME” and “CUSTODIAN.” The documents should be logically unitized (i.e., distinct

documents shall not be merged into a single record, and single documents shall not be split into

multiple records) and be produced in the order in which they are kept in the usual course of

business. If an original document contains color to understand the meaning or content of the 

document, the document shall be produced as single-page, 300 DPI JPG images with JPG

compression and a high quality setting as to not degrade the original image. Multi-page OCR

text for each document should also be provided. The OCR software shall maximize text quality

over process speed. Settings such as “auto-skewing” and “auto-rotation” should be turned on 

during the OCR process.

B. Production of ESI

1. Format: ESI should be produced in single-page, black and white, TIFF Group

IV, 300 DPI TIFF images with the exception of spreadsheet type files, source code, audio and 

video files, which should be produced in native format. TIFFs should show any and all text and 

images which would be visible to the reader using the native software that created the

document. For example, TIFFs of e-mail messages should include the BCC line. PowerPoint

documents shall be processed with hidden slides and allspeaker notes unhidden, and shall be

processed to show both the slide and the speaker’s notes on the TIFF image. If an original

document contains color, the documentshould be produced assingle-page, 300 DPIJPG images

with JPG compression and a high quality setting as to not degrade the original image. Parties are

under no obligation to enhance an image beyond how it was kept in the usual course of business.

2. Format – Native Files: If a document is produced in native, a single-page, Bates 

stamped image slip sheet stating the document has been produced in native format should also be 

provided. Each native file should be named according to the Bates number it has been assigned, and 

should be linked directly to its corresponding record in the load file using the NATIVELINK field. 

To the extent that either party believes that specific documents or classes of documents, not already 

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identified within this protocol, should be produced in native format, the parties should meet and 

confer in good faith.

3. De-Duplication: Each party shall remove exact duplicate documents based on MD5

or SHA-1 hash values, at the family level. Attachments should not be eliminated as duplicates 

for purposes of production, unless the parent e-mail and all attachments are also duplicates. An email that includes content in the BCC or other blind copy field shall not be treated as a duplicate of

an e- mail that does not include content in those fields, even if all remaining content in the e-mail

is identical. Removal of near-duplicate documents and e-mail thread suppression is not

acceptable. De-duplication should be done across the entire collection (global de-duplication) 

and the CUSTODIAN field should list each custodian, separated by a semicolon, who was a

source of that document and the FILEPATH field will list each file path, separated by a

semicolon, that was a source of that document. Should the CUSTODIAN or FILEPATH metadata

fields produced become outdated due to rolling productions, an overlay file providing all the

custodians and file paths for the affected documents should be produced prior to substantial

completion of the document production. 

4. Technology Assisted Review: Predictive coding/technology-assisted-review shall

not be used for the purpose of culling the documents to be reviewed or produced without

notifying the requesting party prior to use and with ample time to meet and confer in good faith 

regarding a mutually agreeable protocol for the use of such technologies.

5. Metadata: All ESIshall be produced with a delimited, database load file that contains 

the metadata fields listed in Table 1, attached hereto. The metadata produced should have the 

correct encoding to enable preservation of the documents’ original language.

6. Embedded Objects: The parties should meet and confer over the inclusion or 

exclusion of embedded files from the production.

7. Compressed File Types: Compressed file types (i.e., .ZIP, .RAR, .CAB, .Z) should

be decompressed so that the lowest level document or file is extracted.

8. Structured Data: To the extent a response to discovery requires production of 

electronic information stored in a database, including the production of text messages or similar 

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communications, the parties will meet and confer regarding methods of production. Parties will 

consider whether all relevant information may be provided by querying the database for discoverable 

information and generating a report in a reasonably usable and exportable electronic file.

9. Exception Report: The producing party shall compile an exception report 

enumerating any unprocessed or unprocessable documents, their file type and the file location.

10. Encryption: To maximize the security of information in transit, any media on which 

documents are produced may be encrypted. In such cases, the producing party shall transmit the 

encryption key or password to the receiving party, under separate cover, contemporaneously with 

sending the encrypted media.

11. Redactions: If documents that the parties have agreed to produce in native format 

need to be redacted, the partiesshould meet and confer regarding how to implement redactions while 

ensuring that proper formatting and usability are maintained.

RELEVANT TIME PERIOD

Unless otherwise specified, the relevant time period for these requests is from July 1,

2011, to the date of your response and every supplemental response (the “Relevant Time 

Period”). The Relevant Time Period covers documents concerning events and circumstances 

during such period, even though dated, prepared, generated, used, or received prior or 

subsequent to that period.

DOCUMENTS REQUESTED

REQUEST NO. 19:

Documents and communications sufficient to describe and identify the formational history 

of:

(a) AR Capital; 

(b) ARCP;

(c) ARC Properties; 

(d) ARC Advisors; and

(e) RCS Capital, LLC aka RCAP Holdings LLC.

REQUEST NO. 20:

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Documents and communications sufficient to describe and identify all companies

or organizations affiliated with or related to AR Capital or ARC Advisors for which the

following Defendants were an owner, officer, director, executive or member:

(a) Schorsch; and

(b) Block;

REQUEST NO. 21:

Documents and communications sufficient to describe and identify (for the company 

Defendants) your organizational structure, including any subsidiaries, related parties or affiliates,

and the organizational structure of your senior management.

REQUEST NO. 22:

Documents and communications concerning the duties, responsibilities and services

provided to ARCP by AR Capital and ARC Advisors.

REQUEST NO. 23:

Documents and communications concerning the duties, responsibilities and services AR 

Capital provided to ARC Advisors.

REQUEST NO. 24:

Documents and communications concerning:

(a) ARCP’s AFFO, including the materiality of AFFO;

(b) ARCP’s AFFO calculation and methodology, including the basis for and 

factors considered in ARCP’s AFFO calculation and methodology;

(c) ARCP’s AFFO guidance, including the basis for and factors considered in 

ARCP’s AFFO guidance;

(d) ARCP’s Restatement or correction of AFFO, including the events, acts and 

accounting improprieties giving rise to the Restatement and correction of 

AFFO;

(e) ARCP’s Restatement of financial results, including the events, acts and 

accounting improprieties giving rise to the Restatement of financial 

results;

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(f) internal controls over financial reporting, including ARCP’s original 

assessments and subsequent re-assessment(s) of Management’s Report on 

Internal Controls Over Financial Reporting, including the events, acts and 

lack of controls giving rise to the material weakness finding;

(g) any transactions with any entity or person affiliated with or related to you or 

any of the Managers or Directors, including Defendants’ acts and alleged

acts of self- dealing;

(h) any review, report, or analysis given to or received from any rating agency or 

investor concerning ARCP, ARC Properties, AR Capital, ARC Advisors, or

the Managers or Directors; or

(i) the OPP. 

REQUEST NO. 25:

Documents and communications between you and the Managers or Directors

concerning the subject matters identified in Request No. 24(a)-(i).

REQUEST NO. 26:

Documents and communications between the Managers or Directors and personsin your (for 

the company Defendants) public policy department, accounting department, finance department, 

investment relations department, public relations department or analyst relations department or 

members of the Audit Committee concerning the subject matters identified in Request No. 24(a)-

(i).

REQUEST NO. 27:

Scripts, audio or view recordings, e-mails and transcripts of communications between 

any Manager or Director and any financial analyst or media representative concerning the subject 

matters identified in Request No. 24(a)-(i).

REQUEST NO. 28:

Documents and communications concerning the formal or informal investigation, audit or 

review concerning financial or accounting irregularities or errors at ARCP as described in the 

October 29, 2014 Form 8-K filed by ARCP with the SEC.

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REQUEST NO. 29:

Documents and communications concerning any formal or informal investigation, audit, 

review, or analysis concerning ARCP’sfinancial results, accounting procedures, internal controls or 

the Restatement.

REQUEST NO. 30:

Documents and communications concerning the spreadsheet entitled “Q2 2014 AFFO

recast” that Block e-mailed to McAlister on or about July 28, 2014. 

REQUEST NO. 31:

Documents and communications concerning the price and market for ARCP securities, 

including the reasons for the declines in the prices of ARCP securities after October 29, 2014 

and documents concerning the efficiency in the market for ARCP securities.

REQUEST NO. 32:

Documents which you have produced to the SEC, DOJ, or any other federal, state or 

regulatory agency or entity, in response to any investigation, formal or informal inquiry, or request 

for information related to ARCP’s Restatement, AFFO, accounting manipulations, or OPP,

including any third-party documents related to such investigations, and communications

relating thereto, including, but not limited to, any subpoenas or Wells Notices received.

REQUEST NO. 33:

Documents and communications concerning any testimony or interview given to the SEC, 

DOJ, or any other federal, state or regulatory agency or entity, including, but not limited to, 

depositions transcripts or interview statements, in response to any investigation, formal or informal 

inquiry, or request for information related to ARCP’s Restatement, AFFO, accounting 

manipulations, or OPP.

REQUEST NO. 34:

Documents and communications exchanged with or concerning: 

(a) Grant Thornton;

(b) Ernst & Young LLP, relating to any Audit Committee investigations or the 

Restatement of ARCP’s financial results; and

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(c) Deloitte LLP, relating to ARCP’s restated financial 

results. 

REQUEST NO. 35:

Documents or communications concerning ARCP’s monthly and quarterly financial results, 

including all draft and final versions thereof.

REQUEST NO. 36:

Documents and communications concerning ARCP’s accounting policies, procedures, 

controls and practices, as well as any actual or contemplated change thereto, including policies 

related to AFFO.

REQUEST NO. 37:

Documents and communications, including any due diligence undertaken, concerning the 

September 7, 2011 initial public offering for ARCP. 

REQUEST NO. 38:

Documents and communications, including any due diligence undertaken, concerning the 

following offerings:

(a) the $300 million offering of 3.0% Convertible Senior Notes due August

1, 2018, announced on July 23, 2013;

(b) the reopening of the 2018 Notes announced on December 4, 2013;

(c) the 3.75% Convertible Senior Notes due December 15, 2020, announced on

December 4, 2013;

(d) the January 2014 offering of 79.1 million shares of ARCP stock issued

in connection with the ARCT IV merger;

(e) the February 2014 offering of 520.8 million shares of ARCP stock issued in 

connection with the Cole merger;

(f) the May 2014 offering of 138 million shares of ARCP stock, announced

on May 21, 2014; and

(g) the September 2014 registration of the $2.55 senior notes issued in February

2014.

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REQUEST NO. 39:

Documents and communications, including any due diligence undertaken, concerning the 

$2.55 billion offering of 2.0% Senior Notes due February 6, 2017, 3.0% Senior Notes due

February 6, 2019 and 4.6% Senior Notes due February 6, 2024, including: 

(a) the number of offerees;

(b) the relationship between the offerees;

(c) the relationship between the offerees and ARCP; and

(d) the identity of the offerees. 

REQUEST NO. 40:

Documents and communications concerning all compensation that each Manager or Director 

received or was eligible to receive, including all components of that individual’s compensation, 

including non-monetary compensation and stock option grants, improper award of compensation,

and any changesin compensation and attemptsto reduce or claw back compensation.

REQUEST NO. 41:

Documents and communications concerning the resignation, termination, demotion, removal 

from office or change in job title of any of your directors, officers or executives, and the assumption 

of their duties by any other person, including the reasons therefor.

REQUEST NO. 42:

Diaries, daybooks, calendars, appointment books, telephone logs, telephone bills (local,

long distance and cellular), time sheets, expense reports, and visitor logs maintained by or for each

of the Managers and Directors.

REQUEST NO. 43:

Documents prepared for, distributed at, utilized during, created in connection with, or 

concerning any meeting of ARCP’s Board of Directors or of any committee of the Board of 

Directors, including, but not limited to, any minutes, agendas or notes of such meetings, as well as 

any written information received or utilized by any members of the ARCP Board of Directors in 

connection with their membership on the ARCP Board of Directors or any committee thereof, 

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including, but not limited to, board packages, presentation materials, minutes, agendas or notes of 

such meetings and communications concerning same.

REQUEST NO. 44:

Documents and communications concerning the accounting improprieties and statementsto 

investors alleged to be false and misleading in the Complaint, including documents and 

communications that support, contradict or undermine the statements made to investors alleged to

be false and misleading in the Complaint.

REQUEST NO. 46:

Documents concerning the location and preservation of documentsrelevant to thislitigation. 

REQUEST NO. 47:

Documents and communications concerning your document destruction policy and

document retention policies, including documents concerning any deviations or violations 

thereto. 

REQUEST NO. 48:

Documents concerning any insurance policies, indemnification agreements, hold harmless 

agreements, or by-laws under which you may claim coverage to satisfy part or all of any possible 

liabilities as a result of any of the claims asserted in this litigation.

DATED: March 22, 2016

COPPERSMITH BROCKELMAN PLC

By: s/ Keith Beauchamp

Keith Beauchamp

Shelley Tolman

Jonathan Sherman (admitted pro hac vice)

BOIES SCHILLER FLEXNER LLP

5301 Wisconsin Avenue, N.W.

Washington, DC 20015

T: 202.237.2727 

F: 202.237.6131 

jsherman@bsfllp.com

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Edward Normand (admitted pro hac vice)

Joseph Kroetsch (admitted pro hac vice)

Nathan Holcomb (admitted pro hac vice)

BOIES SCHILLER FLEXNER LLP

333 Main Street

Armonk, NY 10504

T: 914.749.8200 

F: 914.749.8300 

enormand@bsfllp.com

jkroetsch@bsfllp.com

nholcomb@bsfllp.com

Beko Reblitz-Richardson (admitted pro hac vice)

BOIES SCHILLER FLEXNER LLP

1999 Harrison Street, Suite 900

Oakland, CA 94612

T: 510.874.1000

F: 510.874.1460

brichardson@bsfllp.com

Attorneys for Plaintiffs

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TABLE 1: METADATA FIELDS

Field

Name Example / Format Description

BEGNO ABC0000001 (Unique ID) The Document ID number associated with the first page of a document.

ENDNO ABC0000003 (Unique ID) The Document ID number associated with the last page of a document.

BEGATTACH ABC0000001 (Unique ID Parent-Child Relationships)

The Document ID number associated with the first page of the parent 

document.

ENDATTACH ABC0000008 (Unique ID Parent-Child Relationships) The Document associated with the last page of the last attachment.

VOLUME VOL001 The name of CD, DVD or Hard Drive.

RECORDTYPE Options: eMail, Attachment, Scanned Doc, eFile The record type of a document.

SENTDATE MM/DD/YYYY The date the e-mail or calendar entry was sent.

SENTTIME HH:MM The time the e-mail or calendar entry was sent.

RECEIVEDDATE MM/DD/YYYY The date the document was received.

RECEIVEDTIME HH:MM The time the document was received.

CREATEDATE MM/DD/YYYY The date the document was created.

CREATETIME HH:MM The time the document was created.

LASTMODDATE MM/DD/YYYY The date the document was last modified.

LASTMODTIME HH:MM The time the document was last modified.

MEETING START DATE MM/DD/YYYY Start date of calendar entry

MEETING START TIME HH:MM Start time of calendar entry

MEETING END DATE MM/DD/YYYY End date of calendar entry

MEETING END TIME HH:MM End time of calendar entry

FILEPATH i.e. /JsmithPC/Users/Jsmith/Desktop

The file path from the location in which the document was stored in the usual 

course of business. This field should be populated for both e-mail and e-files 

and separated by semicolons.

FILEPATH-DUP

i.e. /JSmith.pst/Inbox

/Network Share/Accounting/...

/TJohnsonPC/Users/TJohnson/My Documents/...

The file paths from the locations in which the duplicate documents were 

stored in the usual course of business. This field should be populated for both 

e-mail and e- files and separated by semicolons.

AUTHOR jsmith The author of a document from extracted metadata.

LASTEDITEDBY jsmith The name of the last person to edit the document from extracted metadata.

FROM Joe Smith <jsmith@email.com>

The display name and e-mail address of the author of an e-mail/calendar 

item. An e-mail address should always be provided.

TO Joe Smith <jsmith@email.com>; tjones@email.com

The display name and e-mail address of the recipient(s) of an email/calendar item. An e-mail address should always be provided for 

every e-mail if a recipient existed.

CC Joe Smith <jsmith@email.com>; tjones@email.com

The display name and e-mail of the copyee(s) of an e-mail/calendar item. 

An e- mail address should always be provided for every e-mail if a copyee 

existed.

BCC Joe Smith <jsmith@email.com>; tjones@email.com

The display name and e-mail of the blind copyee(s) of an e-mail or calendar 

item. An e-mail address should always be provided for every e-mail if a blind 

copyee existed.

SUBJECT The subject line of the e-mail/calendar item.

MESSAGE TYPE Appointment, Contact, Task, Distribution List, Message, etc. An indication of the email system message type.

IMPORTANCE Normal, Low, High E-mail Importance Flag

TITLE The extracted document title of a document.

CUSTODIAN-ALL Smith, Joe; Doe, Jane

All of the custodians of a document from which the document originated, 

separated by semicolons.

SOURCE

Computer, Mobile Phone, Email, Network Share, 

Database Name, etc. The source from which the document was collected.

ATTACH COUNT Numeric The number of attachments to a document.

FILEEXT XLS The file extension of a document.

FILENAME Document Name.xls The file name of a document.

FILESIZE Numeric The file size of a document (including embedded attachments).

HASH

The MD5 or SHA-1 Hash value or "de-duplication key" assigned to a 

document. The same hash method (MD5 or SHA-1) should be used 

throughout production.

LANGUAGE Korean; Japanese; English

Specifies all languages found in the document to the best of the processing 

software's ability.

CONVERSATION 

INDEX ID used to tie together e-mail threads.

REDACTED YES or Blank If a document contains a redaction, this field will display 'YES'.

TIMEZONE PROCESSED PST, CST, EST, etc

The time zone the document was processed in. NOTE: This should be the time 

zone where the documents were located at time of collection.

NATIVELINK D:\NATIVES\ABC000001.xls The full path to a native copy of a document.

FULLTEXT D:\TEXT\ABC000001.txt

The path to the full extracted text of the document. There should be a folder 

on the deliverable, containing a separate text file per document. These text 

files should be named with their corresponding bates numbers. Note: E-mails

should include header information: author, recipient, cc, bcc, date, subject, 

etc. If the attachment or e-file does not extract any text, then OCR for the 

document should be provided.

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Keith Beauchamp (012434) 

Shelley Tolman (030945) 

COPPERSMITH BROCKELMAN PLC 

2800 North Central Avenue, Suite 1200 

Phoenix, AZ 85004 

T: 602.381.5490 

F: 602.224.6020 

kbeauchamp@cblawyers.com 

stolman@cblawyers.com

Jonathan Sherman (admitted pro hac vice) 

BOIES SCHILLER FLEXNER LLP 

5301 Wisconsin Avenue, N.W. 

Washington, DC 20015

T: 202.237.2727 

F: 202.237.6131 

jsherman@bsfllp.com 

[Additional Counsel Listed on Signature Page] 

Attorneys for Plaintiffs 

UNITED STATES DISTRICT COURT

DISTRICT OF ARIZONA

Vanguard Specialized Funds, et al.,

Plaintiffs,

v. 

VEREIT, Inc., et al.,

Defendants.

No. CV 15-02157-PHX-JAS

PLAINTIFFS’ THIRD SET OF 

REQUESTS FOR PRODUCTION OF 

DOCUMENTS TO DEFENDANTS

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Pursuant to Rules 26 and 34 of the Federal Rules of Civil Procedure, Plaintiffs, by 

and through their undersigned counsel, request that Defendants American Realty Capital 

Properties, Inc. (n/k/a VEREIT, Inc.), ARC Properties Operating Partnership L.P. (n/k/a 

VEREIT Operating Partnership, L.P.), ARC Properties Advisors LLC, and AR Capital 

LLC (“Defendants”) produce for inspection and copying the documents described herein 

that are in their possession, custody, or control, at the offices of Coppersmith Brockelman 

PLC LLP, 2800 North Central Avenue, Suite 1200, Phoenix, AZ 85004 and Boies 

Schiller Flexner LLP, 1999 Harrison Suite 900, Oakland, CA 94612, within thirty (30) 

days of the date hereof, or at such other time and place mutually agreed upon by the 

parties.

DEFINITIONS

To the extent used herein, the words and phrases set forth below shall have the 

following meanings: 

1. “ARCP” refers to American Realty Capital Properties, Inc., n/k/a Vereit, 

Inc., any of its officers, directors, employees, direct or indirect subsidiaries, and 

divisions or affiliates (foreign and domestic).

2. “Communication” means any transmittal of information (in the form of

facts, ideas, inquiries, or otherwise) whether orally or by document, telephone, telecopier, 

mail, fax, e-mail, voicemail, cellular phone text message, instant message, personal

delivery, or by any other means, be they analog, electronic or otherwise.

3. “Concerning” means reflecting, relating to, referring to, describing, 

discussing, evidencing, addressing or constituting in any way.

4. “Cole” means any Cole-related entity, including without limitation Cole 

Credit Property Trust III, Inc., Cole Holdings Corporation, and Cole Real Estate 

Investments, Inc.

5. “Cole Acquisition” means not only the final acquisition but also all ARCP 

offers and efforts by ARCP to acquire Cole, including without limitation as reflected in 

ARCP’s March 19, 2013 offer letter to the Board of Directors of Cole Credit Property 

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Trust III, Inc., ARCP’s March 27, 2013 offer letter to the Board of Directors of Cole 

Credit Property Trust III, Inc., ARCP’s April 2, 2013 offer letter to the Board of Directors 

of Cole Credit Property Trust III, Inc., and ARCP’s October 23, 2013 announcement of 

the agreement to acquire Cole Real Estate Investments, Inc. 

6. “Defendants” means, for these purposes, the defendants in the above 

captioned action.

7. “Document” has the same meaning and is equal in scope to the usage of

the term “documents or electronically stored information” in Fed. R. Civ. P. 34(a)(1)(A), 

and includes any writings, drawings, graphs, charts, photographs,sound recordings, images,

and any other data or data compilations stored in any medium from which information

can be obtained. A draft or non- identical copy is a separate document within the

meaning of this term. Without limiting the aforementioned definitions, the term 

“documents” includes both hard copy documents and electronically stored information

(“ESI”), including e-mail, instant messaging,shared network files, databases, any data on 

magnetic or optical storage media (e.g., servers, storage area networks, hard drives, backup 

tapes, CDs, DVDs, thumb/flash drives, floppy disks, or any other type of portable storage 

devices) stored as either an “active” or backup file in its native format.

8. “McAlister” means Lisa P. McAlister, ARCP’s former Senior Vice 

President and CAO.

9. “Plaintiffs” means, for these purposes, the plaintiffs in the above captioned 

action.

10. “You” or “your” means the person or entity responding to these requests, 

including any of your employees, officers, directors, investment advisors, asset managers, 

or any employee or agent acting on any of your behalf.

INSTRUCTIONS

1. Including. “Including” shall be construed to include the phrase “but not

limited to.”

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2. Tense. The use of a verb in any tense shall be construed to be in the tense

necessary to bring within the scope of a request all responses that might otherwise be

construed as outside its scope.

3. In responding to these requests, you shall produce all responsive 

documents (including those stored electronically), which are in your possession, custody 

or control, or in the possession, custody or control of your predecessors, successors,

parents, subsidiaries, divisions or affiliates, or any of your respective directors, officers,

managing agents, agents, employees, attorneys, accountants or other representatives. A

document shall be deemed to be within your control if you have the right to secure the

document or a copy of the document from another person having possession or custody of 

the document.

4. Plaintiffs reserve their right to request inspection of the original documents,

including those stored electronically, as they are kept in the usual course of business. If

the original is not in your custody, then a copy thereof, and all non-identical copies which

differ from the original or from the other copies produced for any reason, including,

without limitation, the making of notesthereon.

5. You are to produce each document requested herein in its entirety, without

deletion or excision (except on privilege grounds), regardless of whether you consider the

entire document to be relevant or responsive to the requests.

6. If production of documents is withheld on privilege grounds, as to each such

withheld document, state the following information:

(a) which privilege is claimed;

(b) who is asserting the privilege; 

(c) a precise statement of the facts upon which said claim of privilege is

based; 

(d) the following information describing each purportedly privileged

document: 

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(i) a brief description sufficient to identify its nature, e.g.,

agreement, letter, memorandum, type, etc.;

(ii) a brief description sufficient to identify itssubject matter and

purpose of the document;

(iii) the date it was prepared;

(iv) the date it bears;

(v) the date it was sent;

(vi) the date it was received;

(vii) the identity of the person preparing it; 

(viii) the identity of the person sending it;

(ix) the identity of each person to whom it was sent or was to

have been sent, including all addresses and all recipients of 

copies;

(x) a statement as to whom each identified person 

represented or purported to represent at all relevant times; 

and

(xi) all persons to whom its contents have been disclosed; and

(e) a precise description of the place where each copy of that document

is kept, including the title or description of the file in which said

document may be found and the location of such file.

7. If a portion of any document responsive to these requests is withheld under

claim of privilege, any non-privileged portion of such document must be produced with

the portion claimed to be privileged redacted. Whenever a document is not produced in

full or is produced in redacted form, so indicate on the document, identifying those

portions of the document which are not being produced. For each document that is

redacted, in addition to providing the redacted version of the document, the parties agree

to furnish logs which comply with the legal requirements under federal law, but at a

minimum will include the following information:

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(a) the Begin Production ID of the document; 

(b) the End Production ID of the document;

(c) a description of why privilege is being asserted over the document; 

and

(d) which privilege is asserted.

8. Privilege and redaction logs may be produced on a rolling basis. The

producing party shall provide the logs and supplements for each production within 30 days

of each given production date.

9. If a document responsive to these requests was at any time in your 

possession, custody or control but is no longer available for production, as to each such

document state the following information:

(a) whether the document is missing or lost; 

(b) whether it has been destroyed;

(c) whether the document has been transferred or delivered to another

person and, if so, at whose request;

(d) whether the document has been otherwise disposed of; and

(e) a precise statement of the circumstances surrounding the disposition

of the document and the date of its disposition.

10. This is a continuing request for the production of documents. If, after

making your initial production, you obtain or become aware of any further

documents responsive to these requests, you are required by Fed. R. Civ. P. 26(e) to

produce such additional documents to Plaintiffs.

FORM OF PRODUCTION

A. Production of Hard Copy Documents – Format

Hard copy documents should be scanned as single-page, Group IV, 300 DPI

TIFF images with an .opt image cross-reference file and a delimited database load file

(i.e., .dat). The database load file should contain the following fields: “BEGNO,”

“ENDNO,” “PAGES,” “VOLUME” and “CUSTODIAN.” The documents should be

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logically unitized (i.e., distinct documents shall not be merged into a single record, and

single documents shall not be split into multiple records) and be produced in the order in

which they are kept in the usual course of business. If an original document contains 

color to understand the meaning or content of the document, the document shall be 

produced as single-page, 300 DPI JPG images with JPG compression and a high quality

setting as to not degrade the original image. Multi-page OCR text for each document

should also be provided. The OCR software shall maximize text quality over process

speed. Settings such as “auto-skewing” and “auto-rotation” should be turned on during 

the OCR process.

B. Production of ESI

1. Format: ESI should be produced in single-page, black and white, TIFF

Group IV, 300 DPI TIFF images with the exception of spreadsheet type files, source 

code, audio and video files, which should be produced in native format. TIFFs should 

show any and all text and images which would be visible to the reader using the native

software that created the document. For example, TIFFs of e-mail messages should

include the BCC line. PowerPoint documents shall be processed with hidden slides and all

speaker notes unhidden, and shall be processed to show both the slide and the speaker’s

notes on the TIFF image. If an original document contains color, the document

should be produced assingle-page, 300 DPIJPG images with JPG compression and a high 

quality setting as to not degrade the original image. Parties are under no obligation to

enhance an image beyond how it was kept in the usual course of business.

2. Format – Native Files: If a document is produced in native, a single-page,

Bates stamped image slip sheet stating the document has been produced in native format

should also be provided. Each native file should be named according to the Bates number

it has been assigned, and should be linked directly to its corresponding record in the load

file using the NATIVELINK field. To the extent that either party believes that specific

documents or classes of documents, not already identified within this protocol, should be

produced in native format, the parties should meet and confer in good faith.

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3. De-Duplication: Each party shall remove exact duplicate documents based on

MD5 or SHA-1 hash values, at the family level. Attachments should not be eliminated as 

duplicates for purposes of production, unless the parent e-mail and all attachments are also

duplicates. An e-mail that includes content in the BCC or other blind copy field shall not

be treated as a duplicate of an e- mail that does not include content in those fields, even if 

all remaining content in the e-mail is identical. Removal of near-duplicate documents 

and e-mail thread suppression is not acceptable. De-duplication should be done across the 

entire collection (global de-duplication) and the CUSTODIAN field should list each

custodian, separated by a semicolon, who was a source of that document and the 

FILEPATH field will list each file path, separated by a semicolon, that was a source of

that document. Should the CUSTODIAN or FILEPATH metadata fields produced become 

outdated due to rolling productions, an overlay file providing all the custodians and file

paths for the affected documents should be produced prior to substantial completion of the

document production. 

4. Technology Assisted Review: Predictive coding/technology-assisted-review

shall not be used for the purpose of culling the documents to be reviewed or produced

without notifying the requesting party prior to use and with ample time to meet and 

confer in good faith regarding a mutually agreeable protocol for the use of such 

technologies.

5. Metadata: All ESI shall be produced with a delimited, database load file that

contains the metadata fields listed in Table 1, attached hereto. The metadata produced

should have the correct encoding to enable preservation of the documents’ original 

language.

6. Embedded Objects: The parties should meet and confer over the inclusion 

or exclusion of embedded files from the production.

7. Compressed File Types: Compressed file types (i.e., .ZIP, .RAR, .CAB, .Z)

should be decompressed so that the lowest level document or file is extracted.

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8. Structured Data: To the extent a response to discovery requires production 

of electronic information stored in a database, including the production of text messages

or similar communications, the parties will meet and confer regarding methods of

production. Parties will consider whether all relevant information may be provided by

querying the database for discoverable information and generating a report in a reasonably 

usable and exportable electronic file.

9. Exception Report: The producing party shall compile an exception 

report enumerating any unprocessed or unprocessable documents, their file type and the 

file location.

10. Encryption: To maximize the security of information in transit, any media on

which documents are produced may be encrypted. In such cases, the producing party 

shall transmit the encryption key or password to the receiving party, under separate 

cover, contemporaneously with sending the encrypted media.

11. Redactions: If documents that the parties have agreed to produce in native

format need to be redacted, the parties should meet and confer regarding how to implement

redactions while ensuring that proper formatting and usability are maintained.

RELEVANT TIME PERIOD

Unless otherwise specified, the relevant time period for these requests is from July

1, 2011 to the date of your response and every supplemental response (the “Relevant 

Time Period”). The Relevant Time Period covers documents concerning events and 

circumstances during such period, even though dated, prepared, generated, used, or 

received prior or subsequent to that period.

DOCUMENTS REQUESTED

REQUEST NO. 49:

Documents concerning Your role and activities in connection with the Cole 

Acquisition.

REQUEST NO. 50:

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Documents concerning the financial terms and conditions of the Cole Acquisition, 

including Your understanding and views of the financial terms and conditions.

REQUEST NO. 51:

Documents concerning ARCP’s reasons for the Cole Acquisition, including Your 

understanding and views of any reasons.

REQUEST NO. 52:

Documents concerning ARCP’s financial status during the period of the Cole 

Acquisition, including Your understanding and views of ARCP’s financial status.

REQUEST NO. 53:

Documents concerning representations regarding ARCP’s business and public 

filings in connection with the Cole Acquisition, including Your understanding and views 

of such representations.

REQUEST NO. 54:

Documents concerning the assets ARCP acquired in the Cole Acquisition, 

including Your understanding and views of such assets.

REQUEST NO. 55:

Documents concerning ARCP’s compliance with documents through which ARCP 

acquired Cole, such as the Cole merger agreement, including Your understanding and 

views of such compliance.

REQUEST NO. 56:

Documents concerning the potential results of the Cole Acquisition, including its 

potential benefits to or potential impact on You, ARCP, or ARCP’s shareholders and 

Your understanding and views of such results.

REQUEST NO. 57:

Documents concerning the actual results of the Cole Acquisition, including its 

benefits to or impact on You, ARCP, or ARCP’s shareholders and Your understanding 

and views of such results.

REQUEST NO. 58:

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Documents concerning Your representations or statements regarding the Cole 

Acquisition.

REQUEST NO. 59:

Documents concerning any Cole analysis in connection with the Cole Acquisition, 

including views on the potential or actual impact of the Cole Acquisition. 

REQUEST NO. 60:

Documents concerning Cole’s rejection of offers by ARCP, including the 

announced April 5, 2013 rejection and evaluation by the Cole Special Committee. 

REQUEST NO. 61:

Communications concerning the Cole Acquisition prior to March 19, 2013, 

including without limitation communications concerning the “interest” expressed by 

“ARCP’s management” on “numerous occasions over the past two months” as referenced 

in ARCP’s March 22, 2013 press release. 

REQUEST NO. 62:

Your communications concerning the Cole Acquisition, including any 

communications with Cole.

REQUEST NO. 63:

Documents sufficient to identify Cole executives employed by any company 

named as a Defendant in this action.

REQUEST NO. 64:

Documents concerning whether, at any time after ARCP’s acquisition of Cole, 

ARCP was undervalued or facing the likelihood of an increase in its share price.

REQUEST NO. 65:

Documents concerning ARCP’s decision to use and its use of Cole’s former 

offices in Arizona.

REQUEST NO. 66:

Documents concerning each Defendant’s ability to pay punitive damages, 

including Documents sufficient to identify each Defendant’s assets and liabilities.

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REQUEST NO. 67:

Documents concerning any indemnification by ARCP of any other Defendant, 

including communications concerning any such indemnification.

REQUEST NO. 68:

Documents concerning potential and actual claims by McAlister in connection 

with any events alleged in the Complaint, including documents concerning the action 

captioned Lisa Pavelka McAlister v. American Realty Capital Properties, Inc., et al., 

Index No. 162499/2014 (Sup. Ct. N.Y. Cnty.).

REQUEST NO. 69:

Documents concerning ARCP’s potential or actual inclusion in any index, 

including for example ARCP’s inclusion in the MSCI US REIT and Russell 2000 indexes

and communications concerning those indexes.

REQUEST NO. 70:

Documents concerning any loss or damages calculation in connection with 

Plaintiffs’ claims.

REQUEST NO. 71:

Documents You intend to rely upon at any trial or hearing in this matter.

DATED: April 5, 2017

COPPERSMITH BROCKELMAN PLC

By: s/ Keith Beauchamp

Keith Beauchamp

Shelley Tolman

Jonathan Sherman (admitted pro hac vice)

BOIES SCHILLER FLEXNER LLP

5301 Wisconsin Avenue, N.W.

Washington, DC 20015

T: 202.237.2727 

F: 202.237.6131 

jsherman@bsfllp.com

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Edward Normand (admitted pro hac vice)

Joseph Kroetsch (admitted pro hac vice)

Nathan Holcomb (admitted pro hac vice)

BOIES SCHILLER FLEXNER LLP

333 Main Street

Armonk, NY 10504

T: 914.749.8200 

F: 914.749.8300 

enormand@bsfllp.com

jkroetsch@bsfllp.com

nholcomb@bsfllp.com

Beko Reblitz-Richardson (admitted pro hac vice)

BOIES SCHILLER FLEXNER LLP

1999 Harrison Street, Suite 900

Oakland, CA 94612

T: 510.874.1000

F: 510.874.1460

brichardson@bsfllp.com

Attorneys for Plaintiffs

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TABLE 1: METADATA FIELDS

Field Name Example / Format Description

BEGNO ABC0000001 (Unique ID) The Document ID number associated with the first page of a document.

ENDNO ABC0000003 (Unique ID) The Document ID number associated with the last page of a document.

BEGATTACH ABC0000001 (Unique ID Parent-Child Relationships)

The Document ID number associated with the first page of the parent 

document.

ENDATTACH ABC0000008 (Unique ID Parent-Child Relationships) The Document associated with the last page of the last attachment.

VOLUME VOL001 The name of CD, DVD or Hard Drive.

RECORDTYPE Options: eMail, Attachment, Scanned Doc, eFile The record type of a document.

SENTDATE MM/DD/YYYY The date the e-mail or calendar entry was sent.

SENTTIME HH:MM The time the e-mail or calendar entry was sent.

RECEIVEDDATE MM/DD/YYYY The date the document was received.

RECEIVEDTIME HH:MM The time the document was received.

CREATEDATE MM/DD/YYYY The date the document was created.

CREATETIME HH:MM The time the document was created.

LASTMODDATE MM/DD/YYYY The date the document was last modified.

LASTMODTIME HH:MM The time the document was last modified.

MEETING START DATE MM/DD/YYYY Start date of calendar entry

MEETING START TIME HH:MM Start time of calendar entry

MEETING END DATE MM/DD/YYYY End date of calendar entry

MEETING END TIME HH:MM End time of calendar entry

FILEPATH i.e. /JsmithPC/Users/Jsmith/Desktop

The file path from the location in which the document was stored in the usual 

course of business. This field should be populated for both e-mail and e-files 

and separated by semicolons.

FILEPATH-DUP

i.e. /JSmith.pst/Inbox

/Network Share/Accounting/...

/TJohnsonPC/Users/TJohnson/My Documents/...

The file paths from the locations in which the duplicate documents were 

stored in the usual course of business. This field should be populated for both 

e-mail and e- files and separated by semicolons.

AUTHOR jsmith The author of a document from extracted metadata.

LASTEDITEDBY jsmith The name of the last person to edit the document from extracted metadata.

FROM Joe Smith <jsmith@email.com>

The display name and e-mail address of the author of an e-mail/calendar 

item. An e-mail address should always be provided.

TO Joe Smith <jsmith@email.com>; tjones@email.com

The display name and e-mail address of the recipient(s) of an email/calendar item. An e-mail address should always be provided for 

every e-mail if a recipient existed.

CC Joe Smith <jsmith@email.com>; tjones@email.com

The display name and e-mail of the copyee(s) of an e-mail/calendar item. 

An e- mail address should always be provided for every e-mail if a copyee 

existed.

BCC Joe Smith <jsmith@email.com>; tjones@email.com

The display name and e-mail of the blind copyee(s) of an e-mail or calendar 

item. An e-mail address should always be provided for every e-mail if a blind 

copyee existed.

SUBJECT The subject line of the e-mail/calendar item.

MESSAGE TYPE Appointment, Contact, Task, Distribution List, Message, etc. An indication of the email system message type.

IMPORTANCE Normal, Low, High E-mail Importance Flag

TITLE The extracted document title of a document.

CUSTODIAN-ALL Smith, Joe; Doe, Jane

All of the custodians of a document from which the document originated, 

separated by semicolons.

SOURCE

Computer, Mobile Phone, Email, Network Share, 

Database Name, etc. The source from which the document was collected.

ATTACH COUNT Numeric The number of attachments to a document.

FILEEXT XLS The file extension of a document.

FILENAME Document Name.xls The file name of a document.

FILESIZE Numeric The file size of a document (including embedded attachments).

HASH

The MD5 or SHA-1 Hash value or "de-duplication key" assigned to a 

document. The same hash method (MD5 or SHA-1) should be used 

throughout production.

LANGUAGE Korean; Japanese; English

Specifies all languages found in the document to the best of the processing 

software's ability.

CONVERSATION 

INDEX ID used to tie together e-mail threads.

REDACTED YES or Blank If a document contains a redaction, this field will display 'YES'.

TIMEZONE PROCESSED PST, CST, EST, etc

The time zone the document was processed in. NOTE: This should be the time 

zone where the documents were located at time of collection.

NATIVELINK D:\NATIVES\ABC000001.xls The full path to a native copy of a document.

FULLTEXT D:\TEXT\ABC000001.txt

The path to the full extracted text of the document. There should be a folder 

on the deliverable, containing a separate text file per document. These text 

files should be named with their corresponding bates numbers. Note: E-mails

should include header information: author, recipient, cc, bcc, date, subject, 

etc. If the attachment or e-file does not extract any text, then OCR for the 

document should be provided.

Case 2:15-cv-02157-JAS Document 281-1 Filed 05/25/18 Page 92 of 132
EXHIBIT 11

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David B. Rosenbaum, 009819

Maureen Beyers, 017134 

Joseph N. Roth, 025725 

OSBORN MALEDON, P.A. 

2929 North Central Avenue, Suite 2100 

Phoenix, AZ 85012-2794 

(602) 640-9000 

drosenbaum@omlaw.com 

mbeyers@omlaw.com 

jroth@omlaw.com 

Scott A. Edelman, Pro Hac Vice

Antonia M. Apps, Pro Hac Vice 

Jed M. Schwartz, Pro Hac Vice 

Jonathan Ohring, Pro Hac Vice 

MILBANK, TWEED, HADLEY & McCLOY LLP 

28 Liberty Street 

New York, NY 10005-1413 

(212) 530-5000 

SEdelman@milbank.com 

AApps@milbank.com 

JSchwartz@milbank.com 

JOhring@milbank.com 

Attorneys for Defendants VEREIT, Inc. and VEREIT Operating Partnership, L.P. 

IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF ARIZONA 

Vanguard Specialized Funds, on behalf of 

its Vanguard REIT Index Fund series, et al.,

Plaintiffs, 

vs. 

VEREIT, Inc., et al., 

Defendants. 

No. CV15-02157-PHX-ROS

INITIAL DISCLOSURES OF 

DEFENDANTS VEREIT, INC. 

AND VEREIT OPERATING 

PARTNERSHIP, L.P. PURSUANT 

TO FEDERAL RULE OF CIVIL 

PROCEDURE 26(A)(1) 

Defendants VEREIT, Inc. (“VEREIT”) and VEREIT Operating Partnership, L.P. 

(collectively, “Defendants”), by and through their undersigned attorneys, make the 

following Initial Disclosures in the above-captioned action (the “Action”) pursuant to 

Rule 26(a)(1) of the Federal Rules of Civil Procedure. 

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GENERAL LIMITATIONS AND EXCEPTIONS 

These Initial Disclosures are made subject to the following limitations and 

qualifications: 

1. These Initial Disclosures are based upon a reasonable construction of the 

allegations in the complaint in the Action. In making these Initial Disclosures, 

Defendants do not concede that the complaint states a claim. 

2. These Initial Disclosures are made upon a good faith review of information 

reasonably available to Defendants and are based solely upon the information that has 

been discovered by Defendants as of this time. Defendants have exercised reasonable 

diligence in making these Initial Disclosures, but Defendants cannot and do not 

represent that they have identified every witness, document, or tangible thing within the 

scope of Rule 26(a)(1) or otherwise relevant to the Action. 

3. Defendants reserve the right to amend, clarify, correct, or supplement these 

Initial Disclosures, if necessary, based on continuing investigation and analysis of this 

matter. 

4. Defendants will withhold documents and information protected from 

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

applicable privilege or immunity from disclosure. 

5. In making these Initial Disclosures, Defendants do not in any way waive, 

and expressly reserve, the right to object to any disclosure on the grounds of relevance, 

burden, privilege, immunity from disclosure, or other proper grounds. 

6. By referring to or producing documents as part of the initial disclosure 

process, Defendants make no representations or concessions regarding the relevancy or 

appropriateness of any particular information or document. 

I. INDIVIDUALS LIKELY TO HAVE DISCOVERABLE INFORMATION 

At this time, Defendants believe that the following individuals are likely to have 

discoverable information that Defendants may use to support their defenses in the 

Action. Defendants reserve the right to identify other such witnesses in the course of the 

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litigation and to call at trial additional witnesses, including whomever Plaintiffs may 

designate as a witness, representative witnesses appearing pursuant to Federal Rule of 

Civil Procedure 30(b)(6), rebuttal and impeachment witnesses, expert witnesses, and any 

additional witnesses that may become known as additional facts and issues are identified 

during the course of Defendants’ ongoing factual investigation and discovery. Further, 

by indicating the general subject matter of information that the identified individuals 

may possess, Defendants are in no way limiting the right to call any individual listed to 

testify concerning other subjects, or to make a determination that the testimony of one or 

more of these individuals will not be used. 

INDIVIDUALS & ADDRESSES SUBJECT MATTER OF 

DISCOVERABLE INFORMATION 

Nicholas S. Schorsch 

c/o Audra J. Soloway 

Paul, Weiss, Rifkind, Wharton & Garrison 

LLP 

1285 Avenue of the Americas 

New York, NY 10019 

Information relating to VEREIT’s 

financial reporting, internal controls, and 

board procedures. 

David S. Kay 

c/o Jason Parish 

Kirkland & Ellis LLP 

655 Fifteenth Street NW, Suite 1200 

Washington, DC 20005 

Information relating to VEREIT’s 

financial reporting, internal controls, and 

board procedures. 

Brian Block 

c/o Michael C. Miller 

Steptoe & Johnson, LLP 

750 Seventh Avenue 

Suite 1900 

New York, NY 10019 

Information relating to VEREIT’s 

financial reporting and internal controls. 

Lisa P. McAlister 

c/o Dwight P. Bostwick 

Zuckerman Spaeder, LLP 

1800 M Street, N.W., Ste. 1000 

Washington, DC 20036-5802 

Information relating to VEREIT’s 

financial reporting and internal controls. 

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Lisa E. Beeson 

c/o Guy Petrillo 

Petrillo Klein & Boxer LLP 

655 Third Ave, 22nd Floor 

New York, NY 10017 

Information relating to VEREIT’s 

financial reporting and internal controls. 

Michael Reiter 

c/o Anthony S. Barkow 

Jenner & Block LLP 

919 Third Avenue 

New York, NY 10022-3908 

Information relating to VEREIT’s 

financial reporting and communications 

with investors and analysts. 

Gavin Brandon 

c/o Antonia M. Apps 

Milbank, Tweed, Hadley & McCloy LLP 

28 Liberty Street 

New York, NY 10005 

Information relating to VEREIT’s 

financial reporting. 

Bonni Rosen 

c/o Antonia M. Apps 

Milbank, Tweed, Hadley & McCloy LLP 

28 Liberty Street 

New York, NY 10005 

Information relating to VEREIT’s 

investor relations. 

Adam Armiger 

[Contact information unknown] 

Information relating to VEREIT’s 

financial reporting. 

Ryan Steel 

c/o Daniel Gitner 

Lankler Siffert Wohl, LLP 

500 Fifth Avenue 

New York, NY 10110 

Information relating to VEREIT’s 

financial reporting. 

Matthew Peel 

c/o Dale A. Danneman 

Lewis Roca Rothgerber Christie LLP 

201 East Washington Street, Suite 1200 

Phoenix, Arizona 85004

Information relating to VEREIT’s 

financial reporting. 

Casey Wilson 

c/o Glen McGorty 

Crowell & Moring, LLP 

590 Madison Avenue, 20th Floor 

New York, NY 10022 

Information relating to VEREIT’s 

financial reporting. 

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Taylor Leonard 

c/o Joshua Goldberg 

Patterson Belknap Webb & Tyler LLP 

1133 Avenue of the Americas 

New York, NY 10036

Information relating to VEREIT’s 

financial reporting. 

Susan Manning 

c/o Reid M. Figel 

Kellogg, Huber, Hansen, Todd, Evans & 

Figel, PLLC 

1615 M Street, N.W., Suite 400 

Washington, DC 20036

Information relating to VEREIT’s 

financial reporting. 

Sathana Semonsky 

c/o Reid M. Figel 

Kellogg, Huber, Hansen, Todd, Evans & 

Figel, PLLC 

1615 M Street, N.W., Suite 400 

Washington, DC 20036

Information relating to VEREIT’s 

financial reporting. 

Rich LaFleur 

c/o Bruce Braun 

Sidley Austin, LLP 

One South Dearborn 

Chicago, IL 60603 

Information relating to VEREIT’s 

financial reporting. 

Michael Pramberger 

c/o Bruce Braun 

Sidley Austin, LLP 

One South Dearborn 

Chicago, IL 60603

Information relating to VEREIT’s 

financial reporting. 

Nishit Mehta 

c/o Bruce Braun 

Sidley Austin, LLP 

One South Dearborn 

Chicago, IL 60603

Information relating to VEREIT’s 

financial reporting. 

Jessica Estrada 

c/o Bruce Braun 

Sidley Austin, LLP 

One South Dearborn 

Chicago, IL 60603

Information relating to VEREIT’s 

financial reporting. 

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Zach Smith 

c/o Bruce Braun 

Sidley Austin, LLP 

One South Dearborn 

Chicago, IL 60603

Information relating to VEREIT’s 

financial reporting. 

Additional Grant Thornton individuals 

involved in VEREIT’s financial 

reporting. 

c/o Bruce Braun 

Sidley Austin, LLP 

One South Dearborn 

Chicago, IL 60603

Information relating to VEREIT’s 

financial reporting. 

II. DESCRIPTION AND LOCATION OF RELEVANT DOCUMENTS 

Until in or around January 2014, VEREIT, formerly known as American Realty 

Capital Properties, Inc., was externally managed by ARC Properties Advisors, LLC, a 

subsidiary of AR Capital, LLC. As such, Defendants have limited access to documents 

and other books and records prior to that time. Subject to that limitation, Defendants 

provide the following general descriptions of categories of documents in their 

possession, custody, or control that they may use to support their defenses in the Action. 

Such documents include: 

 Documents concerning Defendants’ financial statements during the Relevant 

Period (as defined in the Complaint, ECF No. 1); 

 Documents concerning Defendants’ SEC filings during the Relevant Period; 

 Documents concerning press releases, earnings calls, and investor presentations 

during the Relevant Period; 

 Documents concerning calculation of AFFO; 

 Documents concerning AFFO guidance; 

 Documents concerning equity awards; and 

 Documents concerning related-party transactions. 

The foregoing documents are primarily located at, or in the case of electronic 

documents are accessible from, Defendants’ offices or electronic servers. 

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III. CALCULATION OF DAMAGES 

At this time, Defendants are not asserting any claim for damages against 

Plaintiffs but reserve the right to seek fees and costs. Defendants also reserve the right 

to assert cross-claims and/or seek damages from other defendants or non-parties as the 

facts develop and the case proceeds. 

IV. INSURANCE POLICIES

Defendants will produce under separate cover materials, if any, required by Rule 

26(a)(1)(A)(iv). 

V. AMENDMENT AND SUPPLEMENTATION

Defendants reserve the right to amend, correct, or supplement these initial 

disclosures pursuant to Rule 26(e) of the Federal Rules of Civil Procedure. The above 

disclosures are without prejudice to Defendants’ right to identify additional witnesses or 

to produce evidence at trial regarding any subsequently discovered documents or 

evidence. 

DATED this 9th day of November, 2016. 

 OSBORN MALEDON, P.A. 

 By:/s/David B. Rosenbaum 

 David B. Rosenbaum, 009819

 Maureen Beyers, 017134

 Joseph N. Roth, 025725

 2929 N. Central Avenue, Suite 2100 

 Phoenix, AZ 85012-2794 

Scott A. Edelman (Pro Hac Vice) 

Antonia M. Apps (Pro Hac Vice) 

Jed M. Schwartz (Pro Hac Vice) 

Jonathan Ohring (Pro Hac Vice)

MILBANK, TWEED, HADLEY & 

 McCLOY LLP 

28 Liberty Street 

New York, NY 10005-1413 

 Attorneys for Defendants VEREIT, 

Inc. and VEREIT Operating 

Partnership, L.P. 

Case 2:15-cv-02157-JAS Document 281-1 Filed 05/25/18 Page 100 of 132
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Copy of the foregoing served via 

e-mail this 9th day of November, 2016, 

to: 

Keith Beauchamp 

Shelley Tolman 

COPPERSMITH BROCKELMAN PLC 

2800 North Central Avenue, Suite 1200 

Phoenix, AZ 85004 

kbeauchamp@cblawyers.com 

stolman@cblawyers.com 

Jonathan Sherman (Pro Hac Vice) 

BOIES, SCHILLER & FLEXNER LLP 

5301 Wisconsin Avenue, N.W. 

Washington, DC 20015 

jsherman@bsfllp.com 

Edward Normand (Pro Hac Vice) 

Joseph Kroetsch (Pro Hac Vice) 

Nathan Holcomb (Pro Hac Vice) 

BOIES, SCHILLER & FLEXNER LLP 

333 Main Street 

Armonk, NY 10504 

enormand@bsfllp.com 

jkroetsch@bsfllp.com 

nholcomb@bsfllp.com 

Beko Reblitz-Richardson (Pro Hac Vice) 

BOIES, SCHILLER & FLEXNER LLP 

1999 Harrison Street, Suite 900 

Oakland, CA 94612 

brichardson@bsfllp.com 

Attorneys for Plaintiffs

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Theodore V. Wells Jr. (Pro Hac Vice) 

Lorin L. Reisner (Pro Hac Vice) 

Audra J. Soloway (Pro Hac Vice) 

Justin D. Lerer (Pro Hac Vice) 

Joshua D. Kaye (Pro Hac Vice) 

PAUL, WEISS, RIFKIND, WHARTON & GARRISON LLP

1285 Avenue of the Americas 

New York, NY 10019-6064 

twells@paulweiss.com 

lreisner@paulweiss.com 

asoloway@paulweiss.com 

jlerer@paulweiss.com 

jkaye@paulweiss.com

Attorneys for Defendant Nicholas S. Schorsch

Michael C. Miller (Pro Hac Vice) 

Michael G. Scavelli (Pro Hac Vice) 

STEPTOE & JOHNSON LLP 

1114 Avenue of the Americas 

New York, NY 10036 

mmiller@steptoe.com 

mscavelli@steptoe.com 

Aaron J. Lockwood 

STEPTOE & JOHNSON LLP 

201 E. Washington Street, Suite 1600 

Phoenix, AZ 85004 

alockwood@steptoe.com 

Lara E. Romansic (Pro Hac Vice) 

Molly Bruder Fox (Pro Hac Vice) 

STEPTOE & JOHNSON LLP 

1330 Connecticut Avenue, NW 

Washington, DC 20036 

lromansic@steptoe.com 

mbfox@steptoe.com 

Attorneys for Defendant Brian S. Block 

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Reid M. Figel (Pro Hac Vice) 

Rebecca A. Beynon (Pro Hac Vice) 

Andrew E. Goldsmith (Pro Hac Vice) 

Bradley E. Oppenheimer (Pro Hac Vice) 

KELLOGG, HUBER, HANSEN, TODD, EVANS & FIGEL, P.L.L.C.

1615 M Street, N.W., Suite 400 

Washington, DC 20036 

rfigel@khhte.com 

rbeynon@khhte.com

agoldsmith@khhte.com 

boppenheimer@khhte.com 

Attorneys for Defendants AR Capital LLC and ARC Properties Advisors LLC 

Guy Petrillo (Pro Hac Vice) 

PETRILLO KLEIN & BOXER LLP

655 Third Avenue, 22nd Floor 

New York, New York 10017 

gpetrillo@pkbllp.com 

Attorneys for Defendant Lisa Beeson 

James P. Gillespie (Pro Hac Vice) 

Jason R. Parish (Pro Hac Vice) 

Elizabeth Mueller (Pro Hac Vice) 

KIRKLAND & ELLIS LLP 

655 15th Street, N.W., Suite 1200 

Washington, DC 20005 

James.gillespie@kirkland.com 

jparish@kirkland.com 

Mark J. DePasquale 

MARK J. DEPASQUALE, P.C. 

3300 N. Central Avenue, Suite 2070 

Phoenix, AZ 85012 

mjd@markdepasquale.com 

Attorneys for Defendant David Kay 

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Dwight P. Bostwick (Pro Hac Vice) 

Adam L. Fotiades (Pro Hac Vice) 

ZUCKERMAN SPAEDER LLP 

1800 M Street NW, Suite 1000 

Washington, DC 20036-5807 

dbostwick@zuckerman.com 

afotiades@zuckerman.com 

Attorneys for Defendant Lisa P. McAlister

/s/David S. Marcou 

Case 2:15-cv-02157-JAS Document 281-1 Filed 05/25/18 Page 104 of 132
EXHIBIT 12

Case 2:15-cv-02157-JAS Document 281-1 Filed 05/25/18 Page 105 of 132
MILBANK, TWEED, HADLEY & MCˍCLOY LLP

LOS ANGELES 

424-386-4000 

FAX: 213-629-5063 

WASHINGTON, D.C. 

202-835-7500 

FAX: 202-835-7586 

LONDON 

44-20-7615-3000 

FAX: 44-20-7615-3100 

FRANKFURT 

49-69-71914-3400 

FAX: 49-69-71914-3500 

MUNICH 

49-89-25559-3600 

FAX: 49-89-25559-3700 

28 LIBERTY STREET 

NEW YORK, NY 10005 

BEIJING 

8610-5969-2700 

FAX: 8610-5969-2707 

HONG KONG 

852-2971-4888 

FAX: 852-2840-0792 

SEOUL 

822-6137-2600 

FAX: 822-6137-2626 

SINGAPORE 

65-6428-2400 

FAX: 65-6428-2500 

TOKYO 

813-5410-2801 

FAX: 813-5410-2891 

SÃO PAULO 

55-11-3927-7700 

FAX: 55-11-3927-7777 

212-530-5000 

FAX: 212-530-5219 

Antonia M. Apps 

Partner 

DIRECT DIAL NUMBER 

212-530-5357 

E-MAIL: AApps@milbank.com 

April 21, 2017 

VIA EMAIL 

Mr. Beko O. Reblitz-Richardson, Esq. 

Boies, Schiller & Flexner LLP 

1999 Harrison Street, Suite 900 

Oakland, CA 94612 

Re: Vanguard Specialized Funds, et al. v. VEREIT, Inc., et al., 

No. 2:15-cv-02157-ROS 

 

Dear Mr. Reblitz-Richardson: 

We write on behalf of Defendants VEREIT, Inc. and VEREIT Operating 

Partnership, L.P. (collectively, the “ARCP Defendants”) in response to your April 14, 2017 

letter, and to address some open items from your March 2, 2017 and March 20, 2017 letters. 

We welcome discussion of any of the proposals or positions set forth below during our 

telephonic meet-and-confer next Thursday, April 27. 

Custodians 

In your April 14, 2017 letter, you ask whether the ARCP Defendants will agree to 

include William Gribbin and Gavin Brandon as custodians. As you acknowledged in your 

March 2, 2017 letter, we already informed you that the ARCP Defendants would include Mr. 

Gribbin as a custodian during our February 21, 2017 telephonic meet-and-confer. We expect to 

make a production of his documents next week. 

With respect to Mr. Brandon, adding him as a custodian would result in 13,735 

new “hits” based on the search terms applied to existing custodians, even after de-duplication for 

Case 2:15-cv-02157-JAS Document 281-1 Filed 05/25/18 Page 106 of 132
Mr. Beko O. Reblitz-Richardson, Esq. 

April 21, 2017 

Page 2 

documents previously reviewed. Many, if not most, of these documents will be irrelevant and 

reviewing them would be disproportionate to the needs of the case because from the time that 

Mr. Brandon joined ARCP upon the closing of the Cole merger through approximately October 

28, 2014, Mr. Brandon held positions within the Private Capital Markets segment for which 

Cole Capital was the sponsor.

1

 That segment was not the subject of any changes to financial 

statements or operations identified in the March 2, 2015 restatement, and is not the subject of the 

allegations in the Complaint. Indeed, the ARCP Defendants conducted a review of a sample set 

of these documents, which confirmed that they are irrelevant and that further review would be 

disproportionate to the needs of the case. 

Plaintiffs’ Proposed Searches 

In your April 14, 2017 letter, you ask whether the ARCP Defendants will provide 

hit counts based on the search terms proposed by Plaintiffs in Exhibits A and B to your March 2, 

2017 letter. Please find those hit counts in the table set forth below. The hit counts for each 

search term are inclusive of document families, and exclude documents previously produced or 

withheld as privileged in connection with productions to regulators or productions in the SDNY 

actions (and accordingly, this action). Exhibit A searches also exclude all documents reviewed 

in connection with the SDNY actions.2 Each search was run across all previously-agreed 

custodians (including Mr. Gribbin), for the time period February 13, 2012 through March 31, 

2015, except where otherwise requested in your March 2, 2017 letter. 

Running all of the search terms in Exhibits A and B together would result in 

612,664 additional unique hits. Review of these documents would be unduly burdensome and 

disproportionate to the needs of the case, particularly in light of the more than 2,378,000 pages 

of documents already produced. Indeed, the ARCP Defendants have already reviewed 

documents responsive to variations of many of these searches. In an effort to reach a 

compromise, however, the ARCP Defendants would be willing to perform certain of these 

proposed additional searches if Plaintiffs agree that these searches would fully satisfy their 

requests for additional searches. Set forth in the far-right column of the table is the ARCP 

Defendants’ position with respect to each of Plaintiffs’ proposed searches. Green cells in the 

table indicate that the ARCP Defendants are willing to adopt a version of Plaintiffs’ proposed 

search subject to Plaintiffs’ agreement that the ARCP Defendants’ proposed compromise is 

 

1

 From the time of the Cole merger through approximately September 12, 2014, Mr. Brandon was Senior Vice 

President and Principal Accounting Officer of ARCP’s Private Capital Markets segment, the sponsor of which was 

Cole Capital, and from approximately September 12, 2014 through approximately October 28, 2014, he was Chief 

Financial Officer and Treasurer, Managed Office and Industrial REITs, Private Capital Markets. On October 28, 

2014, he was appointed Chief Accounting Officer of ARCP. See ARCP, Current Report (Form 8-K) (Oct. 29, 

2014). 

2

 Accordingly, a document that was previously reviewed in the SDNY actions and marked non-responsive would be 

excluded from an Exhibit A search, but not excluded from an Exhibit B search. This differentiation is appropriate 

because the Exhibit B searches target documents that would not be relevant to the SDNY actions, and may have 

been marked non-responsive in prior review. 

Case 2:15-cv-02157-JAS Document 281-1 Filed 05/25/18 Page 107 of 132
Mr. Beko O. Reblitz-Richardson, Esq. 

April 21, 2017 

Page 3 

acceptable. Orange cells indicate that the ARCP Defendants have already reviewed documents 

responsive to a variation of Plaintiffs’ proposed search. 

To be clear, the ARCP Defendants are prepared to conduct the identified searches 

only on the condition that Plaintiffs do not continue to seek additional searches from the ARCP 

Defendants. To that end, your statement in your April 14, 2017 letter that Plaintiffs believe that 

unidentified “additional search terms” are necessary to account for code names for acquisitions3

and to identify documents responsive to Plaintiffs’ third set of document requests is not 

productive. The prospect of a never-ending cycle of requested search terms is unmanageable. If 

Plaintiffs have additional proposed searches, please identify them in advance of our meet-andconfer next week so that we can evaluate them in context and so that we can assess the burden of 

conducting all of Plaintiffs’ proposed searches. In any event, the need for additional search 

terms to account for code names for acquisitions and to identify documents responsive to 

Plaintiffs’ third set of document requests is unclear, given that the subject matter of these 

additional search terms would primarily be the Cole merger, and those search terms would 

overlap with the search terms Plaintiffs have already proposed relating to Cole and would result 

in irrelevant false hits. 

Exhibit A Searches: 

Search String Document 

“Hits” ARCP Defendants’ Position 

1 AFFO or “adjusted funds from 

operations” or “adj! funds” 

52,428 ARCP previously searched the terms AFFO 

and “adjusted funds from operations” across a 

subset of custodians most likely to have 

relevant documents, as identified in our 

December 2, 2016 letter.4 The ARCP 

Defendants will not run the additional search 

term “adj! funds” or use additional custodians.

2 “non-controlling interest!” or 

“noncontrolling interest!” or NCI or 

NCIs 

35,255 ARCP previously searched these terms across 

a subset of custodians most likely to have 

relevant documents, as identified in our 

December 2, 2016 letter.5 The ARCP 

 

3

 Your April 14, 2017 letter requested a list of code names used for ARCP’s acquisitions. This information is 

readily available in the documents that have been produced to Plaintiffs. See, e.g., ARCP_VANGUARD_00422505 

(identifying Project Poker and Project Quarry); ARCP_VANGUARD_01407352 (identifying Project Carbon). 

4

 This search was initially run through October 29, 2014. The ARCP Defendants later extended this search through 

March 31, 2015 for the custodians Monica Alvarez, Thomas Andruskevich, Adam Armiger, Lisa Beeson, Alysia 

Cherry, Roman Eskue, Bill Gribbin, David Kay, Patrick Kelley, Ali Kozlica, Taylor Leonard, Lisa McAlister, 

Matthew Peel, Michael Reiter, Brandon Rudd, Kevin Siko, William Stanley, Ryan Steel, and Casey Wilson (the 

“Extension Custodians”). 

5

 This search was initially run through October 29, 2014. The ARCP Defendants later extended the search term 

NCI, and the modified search string (“Non-controlling interest!” or “noncontrolling interests” or NCIs) w/10 (2014 

or 2013 or 2012 or 2011 or previous!) through March 31, 2015 for the Extension Custodians. 

Case 2:15-cv-02157-JAS Document 281-1 Filed 05/25/18 Page 108 of 132
Mr. Beko O. Reblitz-Richardson, Esq. 

April 21, 2017 

Page 4 

Defendants will not run these terms over 

additional custodians. 

3 fraud! or conceal! or fals! or lie or 

unlawful or unethical or erroneous or 

manipulate! or decept! or mistake! or 

wrong or improp! or disaster or terrible 

or “red flag” or incorrect or violat! or 

misclassif! or overstat! or understat! or 

non-compliant or inappropriate 

220,860 These terms are “Accounting Adjectives” as 

defined in our December 2, 2016 letter. These 

terms were previously searched in proximity 

to fourteen other search terms. The ARCP 

Defendants will not perform the broader 

search requested by Plaintiffs. 

4 “net loss” w/15 NAREIT 0 This search yields zero additional hits. 

5 restat! 58,523 The ARCP Defendants will not perform this 

additional search. 

6 previously w/2 issued w/3 financial! 5,187 The ARCP Defendants would be willing to 

perform this search. 

7 “Audit Committee” 26,372 The ARCP Defendants have produced all 

communications between the Audit 

Committee and certain key custodians, as 

identified in our December 2, 2016 letter. The 

ARCP Defendants will not perform the 

additional search requested by Plaintiffs. 

8 Ernst w/3 Young 23,862 This search term seeks information subject to 

the attorney work product doctrine and other 

applicable privilege or protection. The ARCP 

Defendants will not perform this additional 

search. 

9 “outperformance plan” or “outperformance plan” or OPP 40,257 The ARCP Defendants would be willing to 

perform this search as limited to the relevant 

months of October 2013 and May 2014.6

10 exec! w/3 (bonus! or comp!) 47,759 The ARCP Defendants will not perform this 

additional search. 

11 equity w/3 incentive! 7,398 The ARCP Defendants would be willing to 

perform this search. 

12 internal w/3 control! 27,161 The ARCP Defendants will not perform this 

additional search. 

 

6

 ARCP’s Multi-Year Outperformance Plan receives perfunctory mention in a large number of SEC filings and the 

many drafts of those filings. Additionally, the abbreviation “OPP” brings in thousands of false hits for other 

abbreviations like “Growth Opp.” and real estate listings including property in the city of Opp, Alabama. The 

ARCP Defendants would therefore more appropriately target the search by limiting it to the months of ARCP’s 

board approval of the Multi-Year Outperformance Plan and the subsequent shareholder vote. 

Case 2:15-cv-02157-JAS Document 281-1 Filed 05/25/18 Page 109 of 132
Mr. Beko O. Reblitz-Richardson, Esq. 

April 21, 2017 

Page 5 

13 material w/3 weakness! 6,643 The ARCP Defendants will not perform this 

additional search. 

14 (“previously issued financial!” or “Audit 

Committee”) AND ((grant w/3 thornton) 

or GT or (ernst w/3 young) or “e&y” or 

“ey” or deloitte or “!@us.gt” or 

“!ey.com”) 

12,625 The ARCP Defendants have previously 

searched communications with Grant 

Thornton, as identified in our December 2, 

2016 letter. The ARCP Defendants will not 

perform the additional search requested by 

Plaintiffs. 

15 “investor day” or “REIT forum” 7,860 The ARCP Defendants previously reviewed 

these terms for the relevant period of 

September 1, 2014 through September 24, 

2014 for those custodians most likely to have 

relevant documents in connection with the 

SDNY “Direct Actions.” The ARCP 

Defendants will produce to Plaintiffs a copy 

of the corresponding production. 

16 “audit opinion” 805 The ARCP Defendants would be willing to 

perform this search. 

17 whistleblower or “code of conduct” 4,383 The ARCP Defendants would be willing to 

perform this search. 

EXHIBIT A TOTAL 342,877

Exhibit B Searches: 

Search String Document 

“Hits” ARCP Defendants’ Position 

1 Cole* [through February 7, 2014] 

55,927

The ARCP Defendants will not perform this 

additional search. 

2 Arizona or AZ or Phoenix or Scottsdale 

or Camelback [through February 7, 2014] 28,342

The ARCP Defendants will not perform this 

additional search. 

3(a) (Arizona or AZ or Phoenix or Scottsdale 

or Camelback) and (10-Q or 10Q or 10-K 

or 10K “financial statement*” or SOX) 

[through October 29, 2014] 32,094

The ARCP Defendants will not perform this 

additional search. 

3(b) (Arizona or AZ or Phoenix or Scottsdale 

or Camelback) and (“securities & 

exchange” or “securities and exchange” 

or SEC) [through October 29, 2014] 77,510

The ARCP Defendants will not perform this 

additional search. 

3(c) (Arizona or AZ or Phoenix or Scottsdale 

or Camelback) and (“financial results” or 

“quarterly results”) [through October 29, 

2014] 12,296

The ARCP Defendants will not perform this 

additional search. 

Case 2:15-cv-02157-JAS Document 281-1 Filed 05/25/18 Page 110 of 132

EXHIBIT 13

Case 2:15-cv-02157-JAS Document 281-1 Filed 05/25/18 Page 112 of 132
MILBANK, TWEED, HADLEY & MCˍCLOY LLP

LOS ANGELES

424-386-4000

FAX: 213-629-5063

WASHINGTON, D.C.

202-835-7500

FAX: 202-835-7586

LONDON

44-20-7615-3000

FAX: 44-20-7615-3100

FRANKFURT

49-69-71914-3400

FAX: 49-69-71914-3500

MUNICH

49-89-25559-3600

FAX: 49-89-25559-3700

28 LIBERTY STREET

NEW YORK, NY 10005

BEIJING

8610-5969-2700

FAX: 8610-5969-2707

HONG KONG

852-2971-4888

FAX: 852-2840-0792

SEOUL

822-6137-2600

FAX: 822-6137-2626

SINGAPORE

65-6428-2400

FAX: 65-6428-2500

TOKYO

813-5410-2801

FAX: 813-5410-2891

SÃO PAULO

55-11-3927-7700

FAX: 55-11-3927-7777

212-530-5000

FAX: 212-530-5219

Jonathan Ohring

DIRECT DIAL NUMBER

212-530-5147

E-MAIL: JOhring@milbank.com

January 9, 2018

VIA EMAIL

Mr. Beko O. Reblitz-Richardson, Esq.

Boies, Schiller & Flexner LLP

1999 Harrison Street, Suite 900

Oakland, CA 94612

Re: Vanguard Specialized Funds, et al. v. VEREIT, Inc., et al., 

No. 2:15-cv-02157-ROS

 

Dear Mr. Reblitz-Richardson:

We write on behalf of Defendants VEREIT, Inc. and VEREIT Operating 

Partnership, L.P. (collectively, the “VEREIT Defendants”) as a follow-up to our January 3, 2018 

letter to address additional issues raised in your recent letters and in our telephonic meet-andconfers held on December 19, 2017, and December 21, 2017.

AR Capital Email Archiving System

Your January 5, 2017 letter baselessly asserts that the VEREIT Defendants 

“withheld” information regarding AR Capital’s email archiving system. The VEREIT 

Defendants did not withhold anything. As explained in our recent letters and during the 

December 19, 2017 meet-and-confer, the VEREIT Defendants engaged in a thorough 

investigation, including interviews of various individuals, some of whom were not in our control, 

in order to better understand the email archiving system and the transfer of documents following 

commencement of litigation. The VEREIT Defendants were under no obligation to provide 

Plaintiffs with real-time updates regarding their efforts to collect potentially responsive 

Case 2:15-cv-02157-JAS Document 281-1 Filed 05/25/18 Page 113 of 132
Mr. Beko O. Reblitz-Richardson, Esq.

January 9, 2018

Page 2

documents, particularly given that documents are being produced well before the depositions of 

any individuals with respect to whom these productions relate.

We believe that your remaining questions regarding AR Capital’s email archiving 

system are best directed to the ARC Defendants.

Instant & Text Messages

Your question regarding the ARC Defendants’ production of instant messages and 

text messages is best directed to the ARC Defendants.

Plaintiffs’ Proposed Additional Search Terms

Your December 20 letter included a revised set of proposed additional search 

terms that “superseded” Plaintiffs’ prior proposals. You asked us to provide hit counts for those 

search terms (i) across all custodial documents (including families), and (ii) separately for just 

custodial emails, instant messages, and text messages (including families), subject to any 

limitations set forth in your proposal. Please find those hit counts in the table set forth below.

1

As indicated below, running all of the search terms in Appendix A to your letter 

would result in 219,627 additional unique hits across all custodial documents and 213,970

additional unique hits across all custodial emails (including families), instant messages, and text 

messages. Review of these documents would be unduly burdensome and grossly 

disproportionate to the needs of the case, particularly in light of the more than 250,000

documents (comprising more than 3,618,000 pages of documents) already produced by the 

VEREIT Defendants. 

The unduly burdensome and disproportionate nature of Plaintiffs’ proposed 

additional search terms is underscored by the fact that Plaintiffs have already received a 

combined total of 316,111 documents hitting on these very same search terms from the VEREIT

Defendants and the ARC Defendants (184,179 documents from the VEREIT Defendants and 

131,932 documents from the ARC Defendants). Note, in particular, that Plaintiffs have already 

received from the VEREIT Defendants and the ARC Defendants over 110,000 documents—

1 The hit counts for each search term are subject to the limitations set forth in your proposal, inclusive of document 

families, and exclude documents previously produced or withheld as privileged in connection with productions to 

regulators or productions in the SDNY actions (and accordingly, this action). Searches corresponding to search nos. 

1 through 8 in Appendix A to your letter also exclude all documents reviewed in connection with the SDNY actions. 

Accordingly, a document that was previously reviewed in the SDNY actions and marked non-responsive would be 

excluded from a search corresponding to search nos. 1 through 8 in Appendix A to your letter, but not excluded 

from a search corresponding to search nos. 9 through 21 in Appendix A to your letter. This differentiation is 

appropriate because search nos. 9 through 21 in Appendix A to your letter target documents that were not the subject 

of document requests in the SDNY actions, and thus may have been marked non-responsive in prior review. Each 

search was run across all previously-agreed custodians, for the time period February 13, 2012 through March 31, 

2015, except where otherwise indicated in Appendix A to your letter.

 

Case 2:15-cv-02157-JAS Document 281-1 Filed 05/25/18 Page 114 of 132
Mr. Beko O. Reblitz-Richardson, Esq.

January 9, 2018

Page 3

without even including families—containing the search term “Cole”.

2

 The number of documents 

already produced by the VEREIT Defendants and the ARC Defendants that hit on each of 

Plaintiffs’ proposed additional search terms are set forth in the table below.

In sum, Plaintiffs have not come close to justifying the need for the proposed 

additional search terms within the framework of Rule 26 of the Federal Rules of Civil Procedure. 

Nonetheless, in an effort to reach a compromise and obtain closure on this issue, the VEREIT 

Defendants would be willing to perform certain searches, as indicated in the column labeled 

“VEREIT Defendants’ Position” in the table below, only on the condition that Plaintiffs agree 

that these searches would fully satisfy their requests for additional searches. Green cells in the

table indicate that the VEREIT Defendants are willing to adopt a version of Plaintiffs’ proposed

search subject to Plaintiffs’ agreement that the VEREIT Defendants’ overall proposed 

compromise is acceptable. Orange cells indicate that the VEREIT Defendants are willing to 

review documents responsive to a variation of Plaintiffs’ proposed search subject to such an 

agreement.

[Table appears on the next page.]

2 Specifically, Plaintiffs have received 113,545 documents (not including families) containing the search term 

“Cole”, including 75,871 from the VEREIT Defendants and 37,674 from the ARC Defendants.

 

Case 2:15-cv-02157-JAS Document 281-1 Filed 05/25/18 Page 115 of 132
Mr. Beko O. Reblitz-Richardson, Esq.

January 9, 2018

Page 4

Search 

# Search String

“Hits” on 

All 

Custodial 

Documents

“Hits” on 

Custodial 

Emails, Instant 

Messages and 

Text Messages

“Hits” on 

Documents 

Already Produced

by VEREIT and 

ARC Defendants 3

VEREIT Defendants’ Position

1

(Accounting or GAAP or Audit or 

"Financial Reporting") w/15 (fraud* or 

conceal* or fals* or lie or unlawful or 

unethical or erroneous or manipulate* 

or decept* or mistake* or wrong or 

improp* or disaster or terrible or "red 

flag" or incorrect or violat* or 

misclassif* or overstat* or understat* or 

non-compliant or inappropriate)

9,385 8,778 21,923

The VEREIT Defendants will not

perform this search.

2 previously w/2 issued w/3 financial* 7,288 7,007 19,840 The VEREIT Defendants will not 

perform this search.

3 "outperformance plan" or 

"outperformance plan" or OPP 4,859 4,639 68,506

The VEREIT Defendants will not 

perform this search.

4 equity w/3 incentive* 10,850 10,402 31,445 The VEREIT Defendants will not 

perform this search.

5 internal w/3 control* 43,286 41,866 57,407 The VEREIT Defendants will not 

perform this search.

6 material w/3 weakness* 10,439 10,111 24,064 The VEREIT Defendants will not 

perform this search.

7 "audit opinion" 1,047 981 3,359 The VEREIT Defendants will not 

perform this search.

8 whistleblower or "code of conduct" 7,061 6,960 9,390 The VEREIT Defendants will not 

perform this search.

3 This column is not limited by the time periods or custodians specified in your proposal.

 

Case 2:15-cv-02157-JAS Document 281-1 Filed 05/25/18 Page 116 of 132
Mr. Beko O. Reblitz-Richardson, Esq.

January 9, 2018

Page 5

9

(Cole* or CCPT) w/50 (fraud* or 

conceal* or fals* or lie or unlawful or 

illegal or unethical or erroneous or 

manipulate* or decept* or mistake* or 

improper* or disaster or terrible or "red 

flag" or incorrect or violat* or 

missclassif* or overstat* or understat*

or non-compliant or inappropriate or 

index or mutual* or Vanguard or "net 

lease" or AFFO or FFO or income or 

multipl* or earning or fee or OPP or 

outperformance or bonus or incentive or 

gross or net or "per share" or GAAP or 

accounting or reporting or liab* or

expos* or disclos* or guid* or 

compensate* or benefit or analys* or 

SEC or overstate* or understate* or 

control* or engineer* or Arizona or AZ 

or Scottsdale or Camelback)

59,627 57,426 190,958

The VEREIT Defendants would be 

willing to perform a modified search, 

subject to the limitations set forth in 

your proposal, as follows: (Cole* or 

CCPT) w/10 (fraud* or conceal* or 

fals* or lie or unlawful or illegal or 

unethical or erroneous or manipulate* 

or decept* or mistake* or improper* or 

disaster or terrible or "red flag" or 

incorrect or violat* or missclassif* or 

overstat* or understat* or noncompliant or inappropriate)

10 Arizona or AZ or Phoenix or Scottsdale 

or Camelback 55,932 54,395 170,954

The VEREIT Defendants will not 

perform this search.

11

(Arizona or AZ or Phoenix or 

Scottsdale or Camelback) and (10-Q or 

10Q or 10-K or 10K or "financial 

statement*" or SOX or "financial 

results" or "quarterly results")

49,798 47,812 77,632

The VEREIT Defendants will not 

perform this search.

12 Arizona or AZ or Phoenix or Scottsdale 

or Camelback 16,094 16,094 170,954 4 The VEREIT Defendants will not 

perform this search.

13 VFTC* 15 11 0

The VEREIT Defendants would be 

willing to perform this search across all 

custodial documents.

4 Across all documents, not just calendar entries.

 

Case 2:15-cv-02157-JAS Document 281-1 Filed 05/25/18 Page 117 of 132
Mr. Beko O. Reblitz-Richardson, Esq.

January 9, 2018

Page 6

14 Vanguard 126 126 16,992

The VEREIT Defendants would be 

willing to perform this search pursuant 

to the limitations set forth in your 

proposal.

15 "Vanguard REIT" 522 510 910

The VEREIT Defendants would be 

willing to perform this search across all 

custodial documents.

16 Vanguard and (index* or indices) 6,379 6,220 5,576

The VEREIT Defendants would be 

willing to perform a modified search as 

follows: Vanguard /10 (index* or 

indices) and [@arcpreit.com or 

@arlcap.com within “from” field in 

email]

17 @cole! 547 547 220,889

The VEREIT Defendants would be 

willing to perform this search pursuant 

to the limitations set forth in your 

proposal.

18 Camel or Geronimo or "Windy City" or 

"Project Chicago" 13,716 13,362 18,338

The VEREIT Defendants would be 

willing to perform a modified search, 

subject to the limitations set forth in 

your proposal, as follows: "Project 

Camel" or Geronimo or "Windy City" 

or "Project Chicago"

19 @gs* or @barclays* 5,227 5,227 143,747 The VEREIT Defendants will not 

perform this search.

20 (ARCP or "American Realty") w/20 

index* 28,544 27,463 55,729 The VEREIT Defendants will not perform this search.

Case 2:15-cv-02157-JAS Document 281-1 Filed 05/25/18 Page 118 of 132
Mr. Beko O. Reblitz-Richardson, Esq.

January 9, 2018

Page 7

21 "financial engineering" 15,584 15,573 458

The VEREIT Defendants would be 

willing to perform a modified search as 

follows: "financial engineering" and 

not (dwight /2 grant)5

TOTALS 219,627 213,970 316,111

5 One of the contacts in Ms. McAlister’s Microsoft Outlook calendar, Dwight Grant, Ph.D., has the title of “Managing Director, Financial Engineering Services” 

at Duff and Phelps, LLC, and triggers over 15,000 false hits. The VEREIT Defendants’ proposed compromise search is designed to remove documents hitting 

on Mr. Grant’s title.

 

Case 2:15-cv-02157-JAS Document 281-1 Filed 05/25/18 Page 119 of 132
Mr. Beko O. Reblitz-Richardson, Esq.

January 9, 2018

Page 8

Plaintiffs’ Second & Third Sets of Document Requests

In your December 28, 2017 letter, you state that the VEREIT Defendants’ 

responses and objections to Plaintiffs’ document requests “fail to specify the extent to which 

[they] will produce documents to Plaintiffs.”6 You request that the VEREIT Defendants state 

their position “regarding what documents they are willing to produce in connection with any 

additional review based on the additional proposed search terms,” and you request that the 

VEREIT Defendants “explain the criteria [they] used to identify responsive documents 

previously, so that [Plaintiffs] can evaluate that criteria in connection with our requests.”

As an initial matter, the VEREIT Defendants disagree with your assertion that 

their responses and objections to Plaintiffs’ document requests “fail to specify the extent to 

which [they] will produce documents to Plaintiffs.” But at bottom, the VEREIT Defendants’ 

position regarding what they are willing to produce is as follows: For document requests for 

which the VEREIT Defendants agreed to meet-and-confer, the VEREIT Defendants would be 

willing to review documents that hit on search terms that result in a review population that is not 

unduly burdensome and disproportionate to the needs of the case, and then to produce any such 

documents that are responsive to those document requests and not privileged.

We do not understand your request that we “explain the criteria [the VEREIT 

Defendants] used to identify responsive documents previously.” As a general matter, if 

documents hit on agreed-upon search terms in the SDNY Actions, the VEREIT Defendants 

reviewed those documents to determine whether they were responsive to the SDNY Plaintiffs’ 

document requests and whether they were privileged. We do not otherwise know what 

information you are seeking by asking that we “explain the criteria [the VEREIT Defendants] 

used to identify responsive documents previously,” nor do we acknowledge any obligation to 

provide such information.

Custodians

During our December 21, 2017 meet-and-confer, Plaintiffs asked whether the 

VEREIT Defendants would agree to include Gavin Brandon as a custodian in exchange for 

Plaintiffs including Matthew Walker as a custodian. As explained in our April 21, 2017 letter, 

most of Mr. Brandon’s pre-October 28, 2014 custodial documents will be irrelevant and

reviewing them would be disproportionate to the needs of the case because from the time that

Mr. Brandon joined ARCP upon the closing of the Cole merger through approximately October

28, 2014, Mr. Brandon held positions within the Private Capital Markets segment for which Cole 

Capital was the sponsor. Additionally, the VEREIT Defendants have already produced 

6 Also in your December 28, 2017 letter, you state that you “were prepared to meet and confer on December 21 

regarding each of those requests, but Mr. Ohring stated that he instead wanted to consider our position further.” 

That assertion is not correct. As I indicated during the meet-and-confer call, the VEREIT Defendants were prepared 

to go through the requests one-by-one, but all parties on the call agreed that such an approach was not necessary and 

that instead the dispute could be addressed by the VEREIT Defendants clarifying the extent to which they were 

producing documents on a general basis.

 

Case 2:15-cv-02157-JAS Document 281-1 Filed 05/25/18 Page 120 of 132
Mr. Beko O. Reblitz-Richardson, Esq.

January 9, 2018

Page 9

approximately 7,744 emails sent or received by Mr. Brandon (14,380 total documents when 

including families). 

Because Plaintiffs have already received a large volume of Mr. Brandon’s 

documents, and considering the limited relevance and undue burden of reviewing Mr. Brandon’s 

documents prior to October 28, 2014, the VEREIT Defendants would be willing to add Mr. 

Brandon as a custodian for de-duplicated documents hitting on the search terms set forth below 

for the date range of October 28, 2014 through March 31, 2015, provided that (1) Plaintiffs agree 

that these searches would fully satisfy their requests for searches for Mr. Brandon, and (2) 

Plaintiffs agree to add Mr. Walker as a custodian and to use the same search terms set forth in 

your October 19, 2017 letter, and for a date range consistent with that used for Plaintiffs’ other 

custodians. 

Search # Search Term

1 AFFO or "adjusted funds from operations"

2 ("Non-controlling interest*" or "noncontrolling interest*" or NCI or NCIs) w/10 

(2014 or 2013 or 2012 or previous*)

3

(Accounting or GAAP or Audit or "Financial Reporting") w/10 (fraud* OR 

conceal* OR fals* OR lie OR unlawful OR unethical OR error* OR erroneous 

OR manipulate* OR decept* OR mistake* OR wrong OR improp* OR disaster 

OR terrible OR "red flag" OR incorrect OR violat* OR misclassif* OR overstat* 

OR understat* OR inflat* OR non-compliant OR inappropriate)

4 SOX w/5 certif* or sarb*

5 "Audit opinion*"

6 "Securities violations" or "securities fraud" or "intentionally false" or 

"intentionally not corrected" or (intentional* w/3 error*) or "bad judgment"

7

(Schorsch or McAlister or Block or Kay) w/10 (liar or lies or lied or fraud* or 

unethical* or ethic* or fuck* or conceal* or shit* or crap* or sham or prison or 

jail or indict* or retaliat*)

Documents of Former Cole Employees

In your December 18, 2017 letter, you requested—for the first time in this 

litigation, and nearly fourteen months after the commencement of discovery—a list of former 

Cole employees for whom the VEREIT Defendants have retained documents, and you asked

whether Christopher Cole’s and Marc Nemer’s documents have been collected and produced.

Your question regarding Mr. Cole and Mr. Nemer is surprising, given that (i) the VEREIT 

Defendants identified the custodians for whom they were producing documents more than a year 

ago in Ms. Apps’ December 2, 2016 letter, (ii) Mr. Cole and Mr. Nemer were not on that list, and 

(iii) Plaintiffs never made any request that Mr. Cole or Mr. Nemer be added. Your statement in 

your January 5, 2018 letter that the VEREIT Defendants “have not agreed to include Mr. Cole as 

Case 2:15-cv-02157-JAS Document 281-1 Filed 05/25/18 Page 121 of 132
Mr. Beko 0. Reblitz-Richardson, Esq. 

January 9, 2018 

Page 10 

a custodian" is misleading at best, given that Plaintiffs have never requested that the VEREIT 

Defendants add Mr. Cole as a custodian. 

To the extent that Plaintiffs are suggesting that the VEREIT Defendants should 

add Mr. Cole as a custodian, the suggestion is not only untimely, but Plaintiffs also have 

provided no justification for why Mr. Cole should be included as a custodian, particularly in light 

of the massive document production by the VEREIT Defendants in this litigation. The mere fact 

that the SDNY plaintiffs noticed Mr. Cole for a deposition is not a sufficient basis for the 

VEREIT Defendants to be required to add him as a custodian. Indeed, the SDNY plaintiffs have 

identified 57 individuals and entities that they wish to depose, and the notion that Defendants 

should be required to produce custodial documents for every single one of those individuals 

would contravene the proportionality requirements of Rule 26. Notably, the SDNY plaintiffs 

seem to agree, as they never have requested that Mr. Cole be included as a custodian despite 

noticing his deposition. The VEREIT Defendants therefore decline Plaintiffs' request for a list 

of Cole employees for whom the VEREIT Defendants have retained documents, which is 

nothing more than a transparent, late-in-the-game attempt to procure the review and production 

of tens of thousands of additional documents without adequate justification. 

Additional Issues 

We will write separately regarding additional issues discussed in the parties' 

recent letters and during our meet-and-confers. 

Sincerely, 

~~ Jonathan Ohring 

Case 2:15-cv-02157-JAS Document 281-1 Filed 05/25/18 Page 122 of 132
EXHIBIT 14 

REDACTED 

Case 2:15-cv-02157-JAS Document 281-1 Filed 05/25/18 Page 123 of 132
MILBANK, TWEED, HADLEY & MCˍCLOY LLP

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424-386-4000

FAX: 213-629-5063

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212-530-5000

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Thomas A. Quinn

DIRECT DIAL NUMBER

212-530-5265

E-MAIL: TQuinn@milbank.com

May 21, 2018

CONFIDENTIAL

VIA EMAIL

Mr. Beko O. Reblitz-Richardson, Esq.

Boies, Schiller & Flexner LLP

1999 Harrison Street, Suite 900

Oakland, CA 94612

Re: Vanguard Specialized Funds, et al. v. VEREIT, Inc., et al., 

No. 2:15-cv-02157-ROS

 

Dear Mr. Reblitz-Richardson:

We write on behalf of Defendants VEREIT, Inc. and VEREIT Operating 

Partnership, L.P. (collectively, the “VEREIT Defendants”) to follow up on our recent 

correspondence concerning Plaintiffs’ requested additional document discovery and our 

telephonic meet-and-confer held on May 14, 2018.

Plaintiffs’ Request for Additional Document Custodians

Cole Executives

On December 20, 2016, the VEREIT Defendants provided Plaintiffs with a list of 

24 individuals for whom the VEREIT Defendants would be producing custodial documents

(referred to herein as “custodians”).

1

 On April 10, 2018—more than 15 months later—Plaintiffs 

1 The VEREIT Defendants subsequently added two more custodians (William Gribbin and Kevin Siko), bringing the 

total number of custodians to 26.

 

Case 2:15-cv-02157-JAS Document 281-1 Filed 05/25/18 Page 124 of 132
Mr. Beko O. Reblitz-Richardson, Esq.

May 21, 2018

Page 2

sent a letter requesting, for the first time, that the VEREIT Defendants add five former

executives of Cole Real Estate Investments, Inc. (“Cole”)—Christopher Cole, Marc Nemer, 

Jeffrey C. Holland, Kirk McAllaster, and Stephan Keller—as document custodians and 

“promptly produce their documents.” Plaintiffs proposed certain search terms while stating that 

they were reserving the right to request additional search terms.

The VEREIT Defendants promptly collected custodial documents for these five 

former Cole executives and applied Plaintiffs’ proposed search terms and date ranges for the 

purpose of assessing the burden of reviewing and producing these individuals’ custodial 

documents. The VEREIT Defendants also consulted with counsel for the former Cole executives 

regarding their respective roles in the ARCP-Cole merger, given that Plaintiffs had asserted that 

these individuals’ documents were relevant based on Plaintiffs’ expectation that they would have 

had some role in the merger.

Plaintiffs’ proposed search terms, when applied to all five former Cole executives 

for the requested time period of January 1, 2012 through March 31, 2015, de-duplicated, and 

excluding all documents already produced in this action, all documents withheld for privilege, 

and all documents produced pursuant to the F.R.E. 502(d)-(e) Consent Order, would result in the 

review of 31,924 additional documents, which is unduly burdensome and disproportionate to the 

needs of the case for the reasons stated during our telephonic meet-and-confer held on May 14, 

2018. Accordingly, we proposed a compromise with respect to searches of the former Cole 

executives’ documents. First, we proposed amended search terms designed to target relevant 

documents and eliminate “false positive” hits, namely: 

1. eliminating false hits on searches designed to target documents relating to the 

Company’s former CFO, Brian Block, by changing the search term “block” to 

(brian w/3 block), and false hits related to former employee Michael Reiter by 

changing the search term “reiter” to (michael w/3 reiter);

2. removing “@arlcap or @rcscapital or @arcpreit” as a search term because the 

search would capture every communication with ARCP or RCS employees over 

the designated time period, regardless of subject matter, and the VEREIT 

Defendants (along with the AR Capital Defendants) have already applied search 

terms designed to target relevant documents from ARCP custodians;

3. modifying the term “Chicago” to “Project Chicago” to target documents related to 

a code name used for the Cole merger, rather than any mention of the city of 

Chicago in the documents of employees of a real estate company; and

4. adding a condition that searches for “Vanguard or VFTC” remove hits for 

“Vanguard Car” to eliminate false positives resulting from one of Cole’s tenants, 

“Vanguard Car Rental.” 

Second, we proposed two separate date ranges, designed to target 

communications during the specific periods in which ARCP and Cole were engaged in 

CONFIDENTIAL

Case 2:15-cv-02157-JAS Document 281-1 Filed 05/25/18 Page 125 of 132
Mr. Beko O. Reblitz-Richardson, Esq.

May 21, 2018

Page 3

discussions regarding a potential merger, as follows: (1) January 15, 2013 – April 15, 2013, 

targeting documents relating to ARCP’s attempted acquisition of Cole’s predecessor, Cole 

Capital Property Trust III, Inc., and (2) August 1, 2013 – November 1, 2013, targeting 

documents relating to discussions leading up to and shortly following the announcement of the 

ARCP-Cole merger agreement in October 2013.

Third, we proposed that the VEREIT Defendants would produce custodial 

documents of Messrs. Cole and Nemer (but not the other three former Cole executives) hitting on 

the aforementioned search terms for the date ranges set forth above, without prejudice to 

Plaintiffs seeking custodial documents of the remaining three individuals and the VEREIT 

Defendants’ right to decline such production on the grounds that additional productions were 

unduly burdensome in comparison with the relevance of the documents. We explained that the

proposal was based on the VEREIT Defendants’ understanding from counsel for the Cole 

executives that of the five former Cole executives, Messrs. Cole and Nemer would have the most 

relevant documents related to the ARCP-Cole merger.

By email dated May 15, 2018, Plaintiffs stated that they would accept the 

VEREIT Defendants’ proposal, subject to the following conditions:

1. Plaintiffs would reserve the right to request that the VEREIT Defendants run 

additional searches for Messrs. Cole and Nemer, and the VEREIT Defendants

would agree that Plaintiffs’ acceptance of the VEREIT Defendants’ proposal 

would not prejudice their right to request such additional searches.

2. Plaintiffs would agree that their acceptance of this proposal would not prejudice 

the VEREIT Defendants’ right to oppose any request by Plaintiffs for any 

additional searches.

3. The VEREIT Defendants would begin review and production of Mr. Cole’s and 

Mr. Nemer’s documents, and would provide a written estimate of when the 

VEREIT Defendants will complete its production of these documents.

4. Simultaneously with No. 3, the VEREIT Defendants would send the hit counts for 

Messrs. Holland, Keller, and McAllaster based on the date ranges and search 

terms that Plaintiffs have proposed for Messrs. Cole and Nemer.

We hereby confirm that the VEREIT Defendants agree to Plaintiffs’ conditions.

The VEREIT Defendants will begin reviewing Mr. Cole’s and Mr. Nemer’s documents pursuant 

to the above-described proposal promptly, and expect to complete production in or around the 

next four weeks, subject to any unexpected delays that may arise with respect to the review and 

production.

Per your request, we also applied the above-described proposed search terms and 

date ranges to the documents of Messrs. Holland, Keller, and McAllaster. They result in 6,117 

document hits, totaling 9,564 document hits with families. Our understanding is that Plaintiffs 

CONFIDENTIAL

Case 2:15-cv-02157-JAS Document 281-1 Filed 05/25/18 Page 126 of 132
Mr. Beko O. Reblitz-Richardson, Esq. 

May 21, 2018 

Page 4 

will withdraw their request for the VEREIT Defendants to review and produce these individuals’ 

documents at this time, subject to renewal of the request should the need arise, at which time the 

parties would meet and confer. 

Gavin Brandon 

By letter dated April 14, 2017, Plaintiffs requested that the VEREIT Defendants 

add Gavin Brandon as a document custodian. In our April 21, 2017 letter, we explained that 

many of Mr. Brandon’s documents would be irrelevant and review would be disproportionate to 

the needs of the case because from the time that Mr. Brandon joined ARCP upon the closing of 

the Cole merger on February 7, 2014 through approximately October 28, 2014, Mr. Brandon, a 

former Cole employee, held positions exclusively within the Private Capital Management

(“PCM”) segment for which Cole Capital was the sponsor.2

 The PCM segment—which

represented the former Cole non-traded REIT business—was not the subject of any changes to 

financial statements or operations identified in the March 2, 2015 restatement, and is not the 

subject of the allegations in the Complaint. Moreover, Mr. Brandon was not involved in the 

negotiations for the ARCP-Cole merger. We can confirm that Mr. Brandon was not even aware 

of the merger until it was publicly announced on October 23, 2013. 

Nor have you offered any valid basis on which to produce documents for Mr. 

Brandon prior to October 28, 2014. In your April 24, 2018 letter, you claimed that Mr. 

Brandon’s pre-October 28, 2014 documents were relevant based on your assertion that, from the 

documents produced in the case, it is “clear that Mr. Brandon was involved with the ARCP-Cole 

merger planning and integration.” However, none of the documents you cite in your letter 

demonstrate that Mr. Brandon had any meaningful role in ARCP-Cole merger planning and 

integration in a way that is relevant to Plaintiffs’ claims. Rather, the documents show that Mr. 

Brandon was primarily a passive recipient, along with many other individuals, of emails or 

invitations to large group meetings regarding the integration process. To the extent he was 

involved in integration, 

see

ARC_CIV_SDNY_0791766, and Plaintiffs have not explained why 

 Moreover, none of the documents 

cited in your letter pre-date December 3, 2013—several months after the announcement of the 

Cole-ARCP merger—rendering any request for documents from before that time period 

completely unjustified.

Similarly, the justification offered in your April 10, 2018 letter—that a document 

introduced at Jessica Estrada’s deposition (Ex. 271, GT-ARCP DOC_00200922) purportedly 

2 From the time of the Cole merger through approximately September 12, 2014, Mr. Brandon was Senior Vice

President and Principal Accounting Officer of ARCP’s PCM segment, and from approximately September 12, 2014 

through approximately October 28, 2014, he was Chief Financial Officer and Treasurer, Managed Office and 

Industrial REITs, Private Capital Markets, and his duties and responsibilities related solely to the former Cole 

business. On October 28, 2014, he was appointed Chief Accounting Officer of ARCP. See ARCP, Current Report 

(Form 8-K) (Oct. 29, 2014).

CONFIDENTIAL

 

Case 2:15-cv-02157-JAS Document 281-1 Filed 05/25/18 Page 127 of 132
Mr. Beko O. Reblitz-Richardson, Esq. 

May 21, 2018 

Page 5 

shows that

provides no reason for the VEREIT Defendants to 

produce Mr. Brandon’s documents prior to October 28, 2014. The document you identified is 

from January 2015—well after Mr. Brandon became Chief Accounting Officer—and is related 

to his work on the Restatement. The document provides no basis for producing Mr. Brandon’s 

pre-October 28, 2014 documents given that during this earlier period he worked within the PCM 

segment and had no involvement in ARCP’s internal investigation, which was conducted by 

ARCP’s Audit Committee with the assistance of outside counsel and forensic accounting 

experts.

During our meet-and-confer on May 14, 2018, we reiterated the VEREIT 

Defendants’ proposal to review 10,715 of Mr. Brandon’s documents from October 28, 2014 

through March 31, 2015. This date range is designed to cover the time period from when Mr. 

Brandon stepped into the role of Chief Accounting Officer of ARCP on October 28, 2014, 

through the remainder of the internal investigation and Mr. Brandon’s work on the Company’s 

Restatements, and appropriately does not include documents from before this time period when 

Mr. Brandon’s role was exclusively within the Cole business. We understand from your letter 

dated May 17, 2018 that you have rejected this proposal. 

As we have repeatedly explained in our prior correspondence, including during 

our meet-and-confer, review and production of Mr. Brandon’s documents dated prior to October 

28, 2014 would be unduly burdensome and disproportionate to the needs of the case due to the 

limited (if any) relevance of those documents. If the VEREIT Defendants were to apply the 

search terms you propose for Mr. Brandon for the period you propose (January 1, 2013 through 

March 31, 2015), it would result in more than 26,000 additional documents (comprising over 

315,000 pages) for review.3

 For comparison purposes, the VEREIT Defendants have already 

produced 263,990 documents comprising 3.9 million pages, which covered 26 custodians. Your 

proposal would require the VEREIT Defendants to review nearly 10 percent of the amount 

already produced for a single custodian who is not alleged to have had any involvement with any 

of the alleged misrepresentations in this case, and whose only arguable relevance to the case is

limited to his involvement in the preparation of the Company’s Restatement, as to which 

Plaintiffs have alleged no misstatements. In light of the fact that the VEREIT Defendants have

already produced 15,401 documents on which Mr. Brandon was included, and the only 

documents you have identified as supporting Plaintiffs’ request for his documents relate to his 

peripheral involvement in the mechanical process of integrating the two businesses after the 

announcement of the merger, insisting that the VEREIT Defendants review such an enormous 

number of documents is unreasonable. 

3 Running Plaintiffs’ proposed search terms across Mr. Brandon’s custodial documents from November 1, 2013 

through March 31, 2015 results in 26,059 new document hits. The VEREIT Defendants have not yet had the 

opportunity to run Plaintiffs’ proposed search terms over Mr. Brandon’s custodial documents from prior to 

November 1, 2013. However, the VEREIT Defendants expect that the total hits may be significantly higher when 

including that earlier period.

CONFIDENTIAL

 

Case 2:15-cv-02157-JAS Document 281-1 Filed 05/25/18 Page 128 of 132
Mr. Beko O. Reblitz-Richardson, Esq.

May 21, 2018

Page 6

Plaintiffs’ Request for Additional Search Terms Across All Custodians

Plaintiffs have requested that the VEREIT Defendants review and produce 

documents hitting on additional search terms beyond those already used in the production of 

nearly 4 million pages of documents to Plaintiffs. The VEREIT Defendants have repeatedly 

sought to reach a reasonable compromise on this issue, but Plaintiffs’ proposed searches would 

result in the VEREIT Defendants having to review hundreds of thousands of additional 

documents. 

In Plaintiffs’ most recent proposal, from your letter dated May 2, 2018, Plaintiffs 

requested that the VEREIT Defendants review and produce documents for all 26 previouslyagreed custodians pursuant to 19 additional search terms. Review of those documents would 

result in the review of 155,985 additional documents (totaling 2,160,303 pages) beyond the 

263,990 documents (totaling 3,931,271 pages) already produced to Plaintiffs, as shown in the 

below chart. In light of the VEREIT Defendants’ extensive prior productions, Plaintiffs’ request 

that the VEREIT Defendants review 155,985 new documents is both unduly burdensome and 

grossly disproportionate to the needs of the case, as discussed in more detail below.

Plaintiffs’ overly broad search terms result in the following number of hits:

Search 

# Search Term Documents with hits

Documents with 

hits, including 

family

Category 1 - Arizona

1 Arizona or AZ or Phoenix or Scottsdale or Camelback 25,595 52,039

2

(Arizona or AZ or Phoenix or Scottsdale or Camelback) 

and (10-Q or 10Q or 10-K or 10K or "financial 

statement*" or SOX or "financial results" or "quarterly 

results") 22,133 43,696

3

Arizona or AZ or Phoenix or Scottsdale or Camelback

[in calendars or schedules] 8,552 15,777

Category 2 – Cole Merger

4

(Cole* or CCPT) w/25 (fraud* or conceal* or fals* or lie 

or unlawful or illegal or unethical or erroneous or 

manipulate* or decept* or mistake* or improper* or 

disaster or terrible or "red flag" or incorrect or violat* or 

missclassif* or overstat* or understat* or non-compliant 

or inappropriate) 1,550 3,383

5 @cole! 527 699

6

"Project Camel" or Geronimo or "Windy City" or "Project 

Chicago" 2,731 4,851

Category 3 – Vanguard Communications

7 VFTC* 9 15

8 Vanguard 126 134

9 "Vanguard REIT" 294 482

CONFIDENTIAL

Case 2:15-cv-02157-JAS Document 281-1 Filed 05/25/18 Page 129 of 132
Mr. Beko O. Reblitz-Richardson, Esq.

May 21, 2018

Page 7

10 Vanguard and (index* or indices) 2,511 5,662

Category 4 – Other/AR Capital

11

(Accounting or GAAP or Audit or "Financial Reporting") 

w/15 (fraud* or conceal* or fals* or lie or unlawful or 

unethical or erroneous or manipulate* or decept* or 

mistake* or wrong or improp* or disaster or terrible or 

"red flag" or incorrect or violat* or misclassif* or 

overstat* or understat* or non-compliant or inappropriate) 4,054 9,385

12 previously w/2 issued w/3 financial* 3,384 7,288

13 "outperformance plan" or "outperformance plan" or OPP 2,188 4,859

14 equity w/3 incentive* 5,107 10,850

15 internal w/3 control* 21,992 43,286

16 material w/3 weakness* 4,254 10,439

17 "audit opinion" 448 1,047

18 whistleblower or "code of conduct" 2,873 7,061

19 "financial engineering" AND NOT (dwight w/2 grant) 150 330

TOTALS 82,242 155,985

During our May 14, 2018 meet-and-confer, we informed you that the VEREIT 

Defendants were willing to review and produce documents hitting on search terms in Category 3

(searches 7, 8, 9, and 10), which target documents unique to Vanguard, with the following 

proposed modification to search 10: 

Vanguard /10 (index* or indices) and [@arcpreit.com or @arlcap.com within 

“from” field in emails]

This reasonable modification is designed to target emails in which ARCP 

employees were discussing Vanguard and to eliminate false positive document hits where ARCP 

employees simply received generic mass-emails mentioning Vanguard.

The remainder of your proposed search terms, however, are unduly burdensome 

and grossly disproportionate to the needs of this case.

Category 1. The proposed search terms in Category 1, regarding Arizona, are 

vastly overbroad. Plaintiffs propose terms such as “Arizona”, “Phoenix”, “AZ”, “Scottsdale” 

and “Camelback” that are guaranteed to pull in a tremendous number of false hits given that (1) 

VEREIT is a real estate company which owned, and discussed, properties all over the country, 

including in Arizona, and (2) emails with any Phoenix-based Cole or VEREIT employee are 

pulled into the search results via the address line in those individuals’ email signature blocks. 

You have claimed that Plaintiffs need these documents to identify contacts with Arizona; 

however, a far more efficient way of obtaining that information is to ask the relevant witnesses 

where relevant conduct occurred. This is precisely what Plaintiffs have done in every deposition 

to date.

CONFIDENTIAL

Case 2:15-cv-02157-JAS Document 281-1 Filed 05/25/18 Page 130 of 132
Mr. Beko O. Reblitz-Richardson, Esq.

May 21, 2018

Page 8

Category 2. Plaintiffs have failed to offer any justifiable rationale for including 

the proposed search terms in Category 2. Plaintiffs have claimed that those search terms are 

designed to pull in documents relating to the Cole merger that Plaintiffs claim makes their action 

“unique.” However, the plaintiffs in the SDNY Actions assert the same claims in connection 

with the Cole merger—indeed, the plaintiffs there include former shareholders of Cole whose 

shares were converted to ARCP shares in connection with the merger—and have not requested 

that the VEREIT Defendants run the broad search terms requested by Plaintiffs here. Moreover, 

while you claim in your May 2, 2018 letter that Plaintiffs’ searches “target[] communications 

with Cole and key documents concerning the Cole transaction,” Plaintiffs’ proposed search terms 

are grossly overbroad and likely to pull in wholly irrelevant documents, including any reference 

to the merger code names (Search 6), any communication with a Cole representative (Search 5), 

and other documents hitting on often-used general terms (Search 4). Plaintiffs have provided no 

justification (other than mere speculation) for why these search terms are necessary to prove their 

claims.

Category 4. The proposed search terms in Category 4 are general search terms 

that seek documents relating to various accounting issues. Unlike Plaintiffs’ proposed search 

terms in Categories 1, 2, and 3, these proposed search terms have nothing to do with the 

purportedly “unique” nature of this action. These search terms are completely unnecessary. 

They seek documents relating to the same alleged accounting issues that are at issue in the 

SDNY actions, and the SDNY plaintiffs have not sought to have the VEREIT Defendants add 

these overly broad and duplicative terms. Plaintiffs’ proposed search terms in Category 4 would 

result in tens of thousands of additional document hits, rendering them unduly burdensome and 

grossly disproportionate to the needs of the case. Plaintiffs have asserted that the VEREIT 

Defendants should nevertheless add these search terms because the AR Capital Defendants have 

utilized these search terms in their document productions. But there is no requirement that every 

defendant use the same search terms (just as the AR Capital Defendants did not run all of the 

search terms used by the VEREIT Defendants). Indeed, whether these search terms were 

employed by other Defendants is completely irrelevant to assessing whether review of 

documents responsive to these terms would be unduly burdensome on the VEREIT Defendants 

and disproportionate to the needs of the case.

Therefore, the VEREIT Defendants are prepared to review and produce 

documents responsive to the search terms in Category 3, subject to our proposed modification set 

forth above, but the remaining searches are unduly burdensome and grossly disproportionate to 

the needs of this case.

Responses and Objections

During the May 14, 2018 meet-and-confer, we stated that amending the VEREIT 

Defendants’ responses and objections to Plaintiffs’ document requests would be unnecessary and 

that we can resolve any questions that Plaintiffs may have concerning the contents of any future

document production responsive to those document requests by offering a written representation 

regarding the contents of any such productions. In your letter dated May 17, 2018, you indicated 

CONFIDENTIAL

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