# RFP & Bill of Particulars — Counsel Feedback Memo **Date:** 2026-03-15 **Re:** First Request for Production responses and Bill of Particulars — compliance and theory alignment --- ## Summary The RFP responses and BOP are pointed in the right direction (surviving NY Civil Rights Law §§ 50–51 claim; misappropriation/privacy) but are **not fully compliant** as drafted and do not strongly frame the **personal-liability theory** the judge preserved. Several procedural and substantive fixes are required. --- ## 1. Procedural / Compliance Fixes ### CPLR 3122 & 22 NYCRR 202.20-c | Issue | Required Fix | |------|--------------| | **Completion affidavit** | Add affidavit/affirmation of completeness or no responsive documents at end of RFP response | | **Request-by-request withholding** | Each response must clearly state what is being withheld and on what basis | | **Scope of objection** | State whether objection applies to all or only part of each request | | **Production limits** | Explain how production is being limited | ### CPLR 3122(b) — Privilege | Issue | Required Fix | |------|--------------| | **Privilege log** | If privileged documents are withheld, provide notice/log for each withheld document (unless doing so would disclose the privilege) | | **Broad privilege assertions** | Replace with specific 3122(b)-compliant privilege notice | ### Wording / Standards | Current (problematic) | Correct NY formulation | |----------------------|------------------------| | "Not reasonably calculated to lead to the discovery of relevant and admissible evidence" | Full disclosure of matter **"material and necessary"** (interpreted liberally) | | Limiting to documents "upon which Plaintiff intends to rely" | Too narrow — disclosure is broader than trial exhibits | ### Citation | Current | Safer | |--------|-------| | "December 5, 2025 Order" | Cite the **December 5, 2025 bench ruling/oral decision** unless a signed short-form order was later entered and served. Maslow's Part Rules require counsel to settle or submit a short-form order after a bench ruling. | --- ## 2. Service-Copy / Drafting Fixes | Issue | Fix | |-------|-----| | Unfinished placeholders in RFP response | Remove all placeholders | | Stray Bill of Particulars footer in RFP | Remove | | RFP cross-references BOP with blank patent numbers | Fill in patent list | | Blank date/address fields in BOP | Fill in | | "Next Step" drafting note in BOP | Remove | | **Result** | Set is not service-ready until all placeholders and drafts are removed | --- ## 3. Legal Theory — Personal Participation (Not Veil-Piercing) ### Authorities That Matter | Authority | Role | |-----------|------| | **Civil Rights Law § 50** | Bars use of name for advertising or trade without written consent | | **Civil Rights Law § 51** | Authorizes suit against "person, firm or corporation" doing the use; damages + exemplary damages for knowing use | | **LLC Law § 609** | Correct statutory title (not "Limited Liability Company Law"). LLC member not liable solely because of LLC status | | **Turane v. MGN, LLC, 171 A.D.3d 835** | LLC members may still be **personally liable when they personally participate in the tort** | ### Michnick v. Parkell Prods., 215 A.D.2d 462 - Used by judge to dismiss fiduciary/accounting/constructive-trust theories (employer-employee does not create fiduciary relationship absent loss-sharing) - **Does not** support the surviving personal-liability theory - **Do not** need to brief Michnick or Turane inside ordinary RFP responses (Maslow's case-citation rules target motion papers, not routine discovery) ### Strongest Theory: Direct Personal Participation The judge said there was enough, at this stage, to show a potential triable issue as to whether **Goldberg acted in his personal capacity**. The theory is **direct personal participation**, not generic veil-piercing. **Facts from transcript that Litman emphasized:** - Goldberg personally handled the client relationship and billing - Goldberg **caused** the continued use of Litman's name on patent matters and the website after June 15, 2020 - Goldberg later **substituted his own name** **These are the kinds of facts that fit § 609 + Turane.** ### RFP Response Gap The current RFP responses mention patents and website use but **do not sharply state that Goldberg personally directed, approved, or carried out those acts**. That is why the responses do not, by themselves, advance the judge's personal-liability framework. --- ## 4. Bill of Particulars - Verification format is generally fine (CPLR 2106 lets affirmation in lieu of affidavit; CPLR 3044 requires verification if complaint was verified) - **Uploaded bill is not usable as served** — patent list and other placeholders remain blank --- ## 5. Evidence Package Mapping to Personal-Participation Theory The evidence we have gathered supports the theory that **Goldberg personally participated** in the use of Litman's name: | Evidence | How It Supports Personal Participation | |----------|----------------------------------------| | **Goldberg's signature on POA forms** (4 patents) | Goldberg personally signed prosecution documents — not the firm generically | | **Goldberg as submitter/signatory on assignments** (18/392,663; 18/383,448) | Goldberg personally submitted and signed; Litman in correspondent block | | **IFEE forms — Goldberg in 4/4** (OCR) | Goldberg's name appears on Issue Fee Payment forms — he personally filed or directed these | | **Line 74 control inference** | Goldberg had control over whose name went on Line 74; he chose to use Litman's name | | **212 KFU patents with Goldberg on Line 74** (since 2024-01-01) | Goldberg's name on Line 74 = he personally exercised control over attorney designation | | **Website — Litman as "PATENT ATTORNEY" through June 2025** | Goldberg (as Co-Managing Partner) controlled firm website; he personally directed or permitted the use | | **Client relationships** (KFU, KSU, Kuwait University, UAEU) | Goldberg personally handled client relationships and billing per transcript | **Framing for RFP / discovery:** Documents showing that Goldberg **personally signed, submitted, directed, or approved** the use of Litman's name on patents, assignments, and the website after June 15, 2020. --- ## 6. Action Items (Summary) 1. **Add 202.20-c completion affirmation** to RFP response 2. **Clarify request-by-request withholding** — what is withheld and why 3. **Serve 3122(b) privilege log** if privileged documents are withheld 4. **Remove all placeholders** from RFP and BOP 5. **Fill in BOP** — patent list, dates, addresses 6. **Reframe factual theory** around Goldberg's **personal participation** under § 51, LLC Law § 609, and Turane 7. **Cite December 5, 2025 bench ruling** (not "Order") unless short-form order was entered 8. **Use "material and necessary"** standard; avoid "reasonably calculated" and "upon which Plaintiff intends to rely"