subpoena

Exhibit 1 Case: 4:23-cv-00242-BYP Doc #: 160-1 Filed: 08/29/23 1 of 13. PageID #: 1966 AO 88B (Rev. 02/14) Subpoena to Produce Documents, Information, or Objects or to Permit Inspection of Premises in a Civil Action UNITED STATES DISTRICT COURT for the __________ District of __________ ) ) ) ) ) ) Plaintiff v. Civil Action No. Defendant SUBPOENA TO PRODUCE DOCUMENTS, INFORMATION, OR OBJECTS OR TO PERMIT INSPECTION OF PREMISES IN A CIVIL ACTION To: (Name of person to whom this subpoena is directed) ’ Production: YOU ARE COMMANDED to produce at the time, date, and place set forth below the following documents, electronically stored information, or objects, and to permit inspection, copying, testing, or sampling of the material: Place: Date and Time: ’ Inspection of Premises: YOU ARE COMMANDED to permit entry onto the designated premises, land, or other property possessed or controlled by you at the time, date, and location set forth below, so that the requesting party may inspect, measure, survey, photograph, test, or sample the property or any designated object or operation on it. Place: Date and Time: The following provisions of Fed. R. Civ. P. 45 are attached – Rule 45(c), relating to the place of compliance; Rule 45(d), relating to your protection as a person subject to a subpoena; and Rule 45(e) and (g), relating to your duty to respond to this subpoena and the potential consequences of not doing so. Date: CLERK OF COURT OR Signature of Clerk or Deputy Clerk Attorney’s signature The name, address, e-mail address, and telephone number of the attorney representing (name of party) , who issues or requests this subpoena, are: Notice to the person who issues or requests this subpoena If this subpoena commands the production of documents, electronically stored information, or tangible things or the inspection of premises before trial, a notice and a copy of the subpoena must be served on each party in this case before it is served on the person to whom it is directed. Fed. R. Civ. P. 45(a)(4). Case: 4:23-cv-00242-BYP Doc #: 160-1 Filed: 08/29/23 2 of 13. PageID #: 1967 AO 88B (Rev. 02/14) Subpoena to Produce Documents, Information, or Objects or to Permit Inspection of Premises in a Civil Action (Page 2) Civil Action No. PROOF OF SERVICE (This section should not be filed with the court unless required by Fed. R. Civ. P. 45.) I received this subpoena for (name of individual and title, if any) on (date) . ’ I served the subpoena by delivering a copy to the named person as follows: on (date) ; or ’ I returned the subpoena unexecuted because: . Unless the subpoena was issued on behalf of the United States, or one of its officers or agents, I have also tendered to the witness the fees for one day’s attendance, and the mileage allowed by law, in the amount of $ . My fees are $ for travel and $ for services, for a total of $ . I declare under penalty of perjury that this information is true. Date: Server’s signature Printed name and title Server’s address Additional information regarding attempted service, etc.: Case: 4:23-cv-00242-BYP Doc #: 160-1 Filed: 08/29/23 3 of 13. PageID #: 1968 AO 88B (Rev. 02/14) Subpoena to Produce Documents, Information, or Objects or to Permit Inspection of Premises in a Civil Action(Page 3) Federal Rule of Civil Procedure 45 (c), (d), (e), and (g) (Effective 12/1/13) (c) Place of Compliance. (1) For a Trial, Hearing, or Deposition. A subpoena may command a person to attend a trial, hearing, or deposition only as follows: (A) within 100 miles of where the person resides, is employed, or regularly transacts business in person; or (B) within the state where the person resides, is employed, or regularly transacts business in person, if the person (i) is a party or a party’s officer; or (ii) is commanded to attend a trial and would not incur substantial expense. (2) For Other Discovery. A subpoena may command: (A) production of documents, electronically stored information, or tangible things at a place within 100 miles of where the person resides, is employed, or regularly transacts business in person; and (B) inspection of premises at the premises to be inspected. (d) Protecting a Person Subject to a Subpoena; Enforcement. (1) Avoiding Undue Burden or Expense; Sanctions. A party or attorney responsible for issuing and serving a subpoena must take reasonable steps to avoid imposing undue burden or expense on a person subject to the subpoena. The court for the district where compliance is required must enforce this duty and impose an appropriate sanction—which may include lost earnings and reasonable attorney’s fees—on a party or attorney who fails to comply. (2) Command to Produce Materials or Permit Inspection. (A) Appearance Not Required. A person commanded to produce documents, electronically stored information, or tangible things, or to permit the inspection of premises, need not appear in person at the place of production or inspection unless also commanded to appear for a deposition, hearing, or trial. (B) Objections. A person commanded to produce documents or tangible things or to permit inspection may serve on the party or attorney designated in the subpoena a written objection to inspecting, copying, testing, or sampling any or all of the materials or to inspecting the premises—or to producing electronically stored information in the form or forms requested. The objection must be served before the earlier of the time specified for compliance or 14 days after the subpoena is served. If an objection is made, the following rules apply: (i) At any time, on notice to the commanded person, the serving party may move the court for the district where compliance is required for an order compelling production or inspection. (ii) These acts may be required only as directed in the order, and the order must protect a person who is neither a party nor a party’s officer from significant expense resulting from compliance. (3) Quashing or Modifying a Subpoena. (A) When Required. On timely motion, the court for the district where compliance is required must quash or modify a subpoena that: (i) fails to allow a reasonable time to comply; (ii) requires a person to comply beyond the geographical limits specified in Rule 45(c); (iii) requires disclosure of privileged or other protected matter, if no exception or waiver applies; or (iv) subjects a person to undue burden. (B) When Permitted. To protect a person subject to or affected by a subpoena, the court for the district where compliance is required may, on motion, quash or modify the subpoena if it requires: (i) disclosing a trade secret or other confidential research, development, or commercial information; or (ii) disclosing an unretained expert’s opinion or information that does not describe specific occurrences in dispute and results from the expert’s study that was not requested by a party. (C) Specifying Conditions as an Alternative. In the circumstances described in Rule 45(d)(3)(B), the court may, instead of quashing or modifying a subpoena, order appearance or production under specified conditions if the serving party: (i) shows a substantial need for the testimony or material that cannot be otherwise met without undue hardship; and (ii) ensures that the subpoenaed person will be reasonably compensated. (e) Duties in Responding to a Subpoena. (1) Producing Documents or Electronically Stored Information. These procedures apply to producing documents or electronically stored information: (A) Documents. A person responding to a subpoena to produce documents must produce them as they are kept in the ordinary course of business or must organize and label them to correspond to the categories in the demand. (B) Form for Producing Electronically Stored Information Not Specified. If a subpoena does not specify a form for producing electronically stored information, the person responding must produce it in a form or forms in which it is ordinarily maintained or in a reasonably usable form or forms. (C) Electronically Stored Information Produced in Only One Form. The person responding need not produce the same electronically stored information in more than one form. (D) Inaccessible Electronically Stored Information. The person responding need not provide discovery of electronically stored information from sources that the person identifies as not reasonably accessible because of undue burden or cost. On motion to compel discovery or for a protective order, the person responding must show that the information is not reasonably accessible because of undue burden or cost. If that showing is made, the court may nonetheless order discovery from such sources if the requesting party shows good cause, considering the limitations of Rule 26(b)(2)(C). The court may specify conditions for the discovery. (2) Claiming Privilege or Protection. (A) Information Withheld. A person withholding subpoenaed information under a claim that it is privileged or subject to protection as trial-preparation material must: (i) expressly make the claim; and (ii) describe the nature of the withheld documents, communications, or tangible things in a manner that, without revealing information itself privileged or protected, will enable the parties to assess the claim. (B) Information Produced. If information produced in response to a subpoena is subject to a claim of privilege or of protection as trial-preparation material, the person making the claim may notify any party that received the information of the claim and the basis for it. After being notified, a party must promptly return, sequester, or destroy the specified information and any copies it has; must not use or disclose the information until the claim is resolved; must take reasonable steps to retrieve the information if the party disclosed it before being notified; and may promptly present the information under seal to the court for the district where compliance is required for a determination of the claim. The person who produced the information must preserve the information until the claim is resolved. (g) Contempt. The court for the district where compliance is required—and also, after a motion is transferred, the issuing court—may hold in contempt a person who, having been served, fails without adequate excuse to obey the subpoena or an order related to it. For access to subpoena materials, see Fed. R. Civ. P. 45(a) Committee Note (2013). Case: 4:23-cv-00242-BYP Doc #: 160-1 Filed: 08/29/23 4 of 13. PageID #: 1969 1 EXHIBIT A DEFINITIONS The following definitions and principles shall be deemed to have the meaning set forth herein and are incorporated herein throughout this entire subpoena unless expressly stated to the contrary. 1. “You” and “Your” refers to Alvarez & Marsal Holdings, LLC (“A&M”) and its subsidiaries, board members, employees, officers, managers, representatives, agents, committees, subcommittees, attorneys, and those employed by its attorneys. 2. “Defendants” include Norfolk Southern Corporation and Norfolk Southern Railway Company. This definition is synonymous and interchangeable with “Norfolk Southern” as defined below. 3. The terms “concerning” “concern” and “relating to” shall mean regarding, constituting, evidencing, reflecting, referring to, incorporating, effecting, embodying, including, or otherwise pertaining or relating to, either directly or indirectly, or being in any way connected with the subject matter of a request or any of the documents sought by a request. These terms are synonymous and interchangeable as used in this subpoena. 4. “Document” or “Documents” is defined to be synonymous in meaning and equal in scope to the meaning of this term in Fed. R. Civ. P. 34. A draft or non-identical copy is a separate Document within the meaning of this term. In all events, the definition of “Document” shall include “Communication” and “Data” as defined below. “Document” or “Documents” is intended to be interpreted in the broadest possible sense and includes, but is not limited to, all communications and all electronic data which are stored or retrievable or recorded in any manner and also includes, without limitation, any writing or other record of information or images, Case: 4:23-cv-00242-BYP Doc #: 160-1 Filed: 08/29/23 5 of 13. PageID #: 1970 2 including, but not limited to, print, handwriting, photographs, film, recordings, memoranda, books, records, accounts, ledgers, vouchers, invoices, drafts, bills, charge slips, letters, electronic mail or “e-mail,” text messages, social media messages (including, but not limited to, MySpace, Friendster, Facebook, LinkedIn, Twitter, TikTok, Snapchat, and Instagram), compact discs, CD￾ROM discs, magnetic tape, videotape, magnetic or optical disks, “floppy disks,” “PowerPoint” or other presentation software systems, telegrams, mailgrams, correspondence, notes and minutes of meetings, conversations or telephone calls, resolutions, memoranda, work papers, reports, projects, tabulations, studies, surveys, legal complaints and other pleadings, affidavits, interrogatories, legal briefs, legal motions, judgments, designs, drawings, schematics, maps, manuals, models, notebooks, contracts, agreements, diaries, telephone records, desk calendars, appointment books, circulars, charts, transcripts, docket entries, news releases, trade releases, advertisements, press books, financial statements, stenographers’ notebooks, telecopier or facsimile transmissions, and printouts. The terms “Document” and “Documents” shall include preliminary drafts or revisions, or copies of any such document(s) if the copy is in any way different from the original, now in your possession, custody or control, or in the possession, custody or control of your advisors, agents, employees, servants, representatives, trustees, counsel or other person(s) acting or purporting to act on your behalf. 5. “Communication” or “Communications” means the transmittal of information, formal or informal, in the form of facts, ideas, inquiries, or otherwise and, with respect to oral Communication, includes any Document evidencing such oral Communication. It includes the transmittal of information by any means, including email, SMS, MMS or other “text” messages, social media messages, shared applications from cell phones, or by any other means. “Communication” also shall include without limitation all originals and copies that are provided Case: 4:23-cv-00242-BYP Doc #: 160-1 Filed: 08/29/23 6 of 13. PageID #: 1971 3 by You or to You by others, including, but not limited to, Defendants and owners of “Affected Properties” as defined below. 6. The “Derailment” and/or “East Palestine Train Derailment” shall mean the derailment of Norfolk Southern Train 32N on February 3, 2023, in East Palestine, Ohio, including any resulting or subsequent release of hazardous materials, intentional or otherwise, as further defined by the CERCLA Order dated February 21, 2023 (“the East Palestine Train Derailment”).1 7. “Affected Properties” means any real property, personal property and/or chattel, including livestock and crops, studied, tested, reviewed, and/or evaluated by You concerning/related to the East Palestine Train Derailment. 8. “Data” means all information, facts, and statistics collected for reference and analysis by A&M, concerning the East Palestine Train Derailment, including, but not limited to: paper and electronic recordings/writings, questionnaires, responses to questionnaires, code to run models, tax records, real estate disclosures, Communications with property owners of Affected Properties, databases, insurance records, Communications with real estate appraisers, real estate appraisals, Communications with government officials, Communications with banks, Communications with business consultants, scientific testing of Affected Properties, real estate surveys, and real estate sales records, including disclosures. 1 The CERCLA order defines the East Palestine Train Derailment site as “the areal extent of where hazardous substances have come to be located, in Ohio and Pennsylvania, as a result of the Norfolk Southern Railway Company train derailment that occurred on February 3, 2023, at the rail line northeast of East Taggard Street and North Pleasant Drive intersection in East Palestine, Columbiana County, Ohio (Latitude: 40.8360395 Longitude: 80.5222838) and the subsequent emergency response activities including, but not limited to, breached rail cars and the controlled ‘vent and burn’ that occurred on February 6, 2023.” This CERCLA order was entered by the EPA in the matter of East Palestine Train Derailment Site East Palestine, Columbiana County, Ohio and can be accessed at CERCLA Docket No. V-W-23-c￾004. Case: 4:23-cv-00242-BYP Doc #: 160-1 Filed: 08/29/23 7 of 13. PageID #: 1972 4 9. The term “control” shall be defined so as to apply to any document within your custody or possession or any document which you have the right to secure, or a copy thereof, from another person having actual possession. If a document is responsive to a request and is in your control, but is not in your possession or custody, identify the person in possession or custody. 10. The “controlled release” shall mean the release of hazardous materials and other substances from derailed railcars in the vicinity of East Palestine, Ohio, on February 6, 2023, as a result of the East Palestine Train Derailment. 11. Where the term “identify” is used in reference to an individual or person, it includes the person’s full name, present or last known address, and when referring to a natural person, additionally, the present or last known place of employment. In reference to a document or writing, the term “identify” calls for a description of the type of document or writing, its general subject matter, the date it bears, the author, the present or last known location, the date of transfer, and the custodian, including the same identifying information for the custodian as required for all “persons” as set forth in this paragraph above. 12. The term “including” shall mean including but not limited to. 13. “Norfolk Southern” shall mean the Defendants, jointly and/or severally, as well as their officers, managers, employees, affiliates, subsidiaries, contractors, subcontractors, agents and representatives. 14. “Train 32N” shall mean the Norfolk Southern train, inclusive of locomotives, railcars and other equipment, that derailed in East Palestine, Ohio, on February 3, 2023. Case: 4:23-cv-00242-BYP Doc #: 160-1 Filed: 08/29/23 8 of 13. PageID #: 1973 5 15. The terms “person” or “persons” shall refer to any natural person or persons, and any firm, corporation, association, partnership, group, organization, governmental agency or any other form of legal entity, unless expressly stated otherwise. INSTRUCTIONS 1. The Requests below seek Documents, Data, and Communications concerning the East Palestine Train Derailment, and Affected Properties. 2. It is required that your responses restate the document request in full before responding to it. It is required that each document request be accorded a separate answer. Each response shall first set forth verbatim the document request to which it is responsive. Requests or subparts thereof shall not be combined for the purpose of supplying a common answer. The answer to a document request or subpart must not be supplied by referring to the answer to another request for documents unless the request for documents or subpart referred to supplies a complete and accurate answer to the request for documents or subpart being answered. 3. It is further required that all documents produced appear in the form, order, and condition that they are in on the day that these Requests are propounded, including all comments, notes, remarks, or other materials which may have been added to documents after their initial preparation. Documents that in their original condition were stapled, clipped, or otherwise fastened together shall be produced in such form. Documents not otherwise responsive to a request shall be produced if such documents refer to, relate to, or explain the documents called for in the request, or if such documents are attached to documents called for in these Requests and constitute routing slips, transmittal memoranda or letters, comments, evaluations, or similar documents. 4. In making your production of hard copy documents and other materials, identify Case: 4:23-cv-00242-BYP Doc #: 160-1 Filed: 08/29/23 9 of 13. PageID #: 1974 6 the file and/or location from which each document was taken. 5. If any document is not in your possession but within your control, you are required to comply with the definition and instructions for “control.” If any document was, but is no longer, in your possession or custody or otherwise subject to your control, please state for each such Document: date, sender, recipient, persons to whom copies were provided together with their job titles, type of document, length of document, a general description of the subject matter, the date upon which it ceased to be in your possession, custody or control, the identity of the person now in possession or control of the document, and the identity of all persons having knowledge of the contents thereof. 6. If you claim any form of privilege or any other objection, whether based on statute, common law or otherwise as a ground for not producing any requested document, please furnish a list identifying each document for which the privilege or other objection is claimed together with the following information: date, sender, recipient(s), person(s) to whom copies were provided together with their job titles, type of document, length of document, basis on which a privilege or other objection is claimed, a general description of the subject matter, the identity of all persons known to you who have seen the document, the identity of the person in possession of the document, and the paragraph(s) of the request to which such document responds. If you claim privilege or any other objection with regard to only part of a document, produce the part to which there is no objection. 7. The use of a verb in any tense shall be construed as the use of the verb in all other tenses, and the singular form shall be deemed to include the plural, and vice-versa. The singular form of any noun shall be deemed to include the plural, and vice-versa. 8. The terms “and” and “or” are to be read in both the conjunctive and disjunctive Case: 4:23-cv-00242-BYP Doc #: 160-1 Filed: 08/29/23 10 of 13. PageID #: 1975 7 and shall serve as a request for documents that would be responsive under a conjunctive reading in addition to all documents that would be responsive to a disjunctive reading. 9. Unless otherwise indicated, these requests cover the entire timeframe for which any of the requested Documents, Communications, and/or Data have actually been maintained regardless of any applicable records retention policy. 10. All of the following requests are intended to encompass Documents and/or Data maintained in electronic or paper form, and “correspondence” or “Communications” include emails, letters or other papers, and memos reflecting oral Communications. 11. As these Documents will be shared with a large number of counsel and parties, we ask that You produce copies of them in electronic or paper form. We request that this production be given priority and concluded as thoroughly and expeditiously as feasible. REQUESTS FOR PRODUCTION 1. Please produce all Documents in your control that concern/relate to the East Palestine Train Derailment and/or Affected Properties. 2. Please produce all Documents in your control that concern/relate to any Defendant. 3. Please produce all Documents in your control that concern/relate to any owner of Affected Properties. 4. Please produce all Data in your control that concerns/relates to the East Palestine Train Derailment and/or Affected Properties. 5. Please produce all Data in your control that concerns/relates to any Defendant. 6. Please produce all Data in your control that concerns/relates to any Affected Properties. Case: 4:23-cv-00242-BYP Doc #: 160-1 Filed: 08/29/23 11 of 13. PageID #: 1976 8 7. Please produce all Communications in your control that concern/relate to the East Palestine Train Derailment and/or Affected Properties. 8. Please produce all Communications in your control that concern/relate to any Defendant, including but not limited to, Communications between You and any Defendant. 9. Please produce all Communications in your control between You and any owners of Affected Properties. 10. Please produce all work product, research, computations, code, or analysis generated by You concerning/relating to the East Palestine Train Derailment and/or Affected Properties. This request includes, but is not limited to, any underlying data, real estate appraisals, real estate surveys, regression runs, predictive models, code to run models, databases, regression analyses, draft reports, final reports, techniques utilized, control group Data, and model outputs. 11. Please produce all retainer agreements, scope of work documents, timesheets, time logs, and invoices concerning/related to Your work for Defendants regarding the East Palestine Train Derailment and/or Affected Properties. 12. Please produce any Documents, records, reports, contracts, or billing information over the past five (5) years that concern/relate to services done by You on behalf of Norfolk Southern. 13. Please produce any Documents, Data, records, Communications, or other materials regarding any clean-up effort of hazardous materials and/or chemicals concerning/related to the East Palestine Train Derailment and/or Affected Properties. 14. Please produce all contracts or agreements between You and any Defendant. 15. Please produce all contracts or agreements between You and any owner of any Affected Properties. Case: 4:23-cv-00242-BYP Doc #: 160-1 Filed: 08/29/23 12 of 13. PageID #: 1977 9 16. Please produce any Documents, Data, records, Communications, or other materials relating to environmental data obtained in East Palestine and the surrounding areas on or after the train derailment on February 3, 2023. This request specifically includes data from any TAGA machines, any PTR-MS machines, and any mobile monitors. Please provide the name, model, and serial number of each such piece of equipment, as well as the machine-specific calibration information. Please provide the Data, with corresponding GPS coordinates if available, in both "original electronic format" and "open-source format" and the software used. 17. Please produce any Documents, Data, records, Communications, or other materials from any and all subcontractors used by You in any capacity concerning/related to the East Palestine Train Derailment and/or Affected Properties 18. Please produce any Documents, Data, records, Communications, or other materials concerning/related to plans for any ongoing and/or future sampling, research, modeling, testing, analysis, or monitoring concerning/related to the East Palestine Train Derailment and/or Affected Properties. Case: 4:23-cv-00242-BYP Doc #: 160-1 Filed: 08/29/23 13 of 13. PageID #: 1978