Preview
FILED: WARREN COUNTY CLERK 08/20/2021 04:10 PM INDEX NO. EF2018-65232
NYSCEF DOC. NO. 83 RECEIVED NYSCEF: 08/20/2021
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF WARREN
EVELYN O'BRIEN, JAMIE LYNN Index No.: 65232/2018
PATCHETT, CHRIS FORTNER, MICHAEL
PETTA, on behalf of themselves and
others similarly situated, DEFENDANT’S MEMORANDUM OF
LAW IN OPPOSITION TO PLAINTIFFS’
Plaintiffs, MOTION TO COMPEL PRODUCTION
OF ESTIMATES FROM DEFENDANT
v. SAGBOLT, LLC
SAGBOLT, LLC, OCEAN PROPERTIES,
LTD., PORTSMOUTH CORPORATE
FINANCIAL SERVICES, INC., PATRICK
WALSH, and THOMAS GUAY
Defendants.
Defendant Sagbolt, LLC (“Sagbolt”) (“Defendant”), by and through its undersigned
attorneys, submits this memorandum of law in opposition to Plaintiffs’ Motion to Compel
Production of Estimates from Defendant Sagbolt, LLC (“Motion to Compel”), and states as
follows:
I. INTRODUCTION AND RELEVANT BACKGROUND
Plaintiffs in this class action allege that Defendants misrepresented to customers of the
Sagamore Hotel the nature and disposition of a “service charge” added to their bills for various
events. Specifically, Plaintiffs claim Defendants failed to inform customers that the service charge
would not be remitted to the staff as a tip, but rather kept by Defendants. Defendants have denied
Plaintiffs’ claims and contend that the contracts that Defendants entered into with each customer
provided the customers adequate notice of the service charge.
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Throughout the lengthy discovery period that has already spanned three and a half years,
Plaintiffs have propounded multiple rounds of voluminous discovery requests upon Defendants.
In May 2019, Defendants produced expansive discovery in response to Plaintiffs’ requests,
including contracts, invoices, and banquet event orders, for years of banquet events. Defendants
also produced the results of an ESI search conducted utilizing terms provided by Plaintiffs – “tips,”
“tip,” “tipping,” “service charge,” “service fee,” “service charges,” “services fees,” “gratuity,
“gratuities,” and “Grat.” The email production included communications with customers that
contained informal estimates where the search terms were included in the text of the email.
However, the email production did not include the search of attachments due to the limitations of
Sagbolt’s email system, which is not stored on a central server. 1 Accordingly, Defendants
separately produced other responsive documents maintained in its files, including contracts, event
orders, and invoices. In total, Defendants have produced almost 100,000 pages of documents.
At the time Defendants ran the search, Defendants understood that the search of emails –
not attachments – was exactly what Plaintiffs desired. In their correspondence to Defendants and
the Court, Plaintiffs have represented that the ESI search was intended to be limited and to
determine “whether there were individualized communications concerning the service charge
between customers and Defendants.” See Plaintiffs’ July 11, 2018 Letter to the Court (emphasis
added). The ESI search and production accomplished this, as it included any emails containing
such “individualized communications.” Plaintiffs represented that their proposed ESI search
would “require a limited amount of electronic discovery of communications between customers
and Defendants concerning the service charge.” Id. (emphasis added). In the Plaintiffs’
correspondence to the Court regarding the Parties’ agreed ESI search parameters, Plaintiffs stated
1
In other words, these emails are not stored in the “cloud” or any other central repository.
Sagbolt had to run the
search terms in each computer and did not have the software or capacity to search attachments.
2
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that the production would be for “Electronic Communications between employees and customers
at banquets Plaintiff worked concerning the Service Charge. The parties agreed upon the following
search terms: ‘tips,’ ‘tip’, ‘tipping’, service charge’, ‘service fee’, ‘service charges’ ‘service fees’
‘gratuity’, ‘gratuities, and ‘Grat.”’ NYSCEF Doc. No. 46 at 6. That search was performed, and all
such electronic communications containing the search terms, i.e., emails, were produced, including
a few that attached estimates. 2
As part of a lengthy conferral process following this production, Plaintiffs noted the
estimates and inquired as to any documents used to create F&B (food and beverage) revenue
estimates. In response to this request, Defendants informed Plaintiffs that a general excel
spreadsheet was used as a tool to create F&B estimates, but that the F&B estimates were not
maintained (unlike the contracts, event orders, and invoices, which were kept). Discovery has since
confirmed that the estimates were rarely sent to customers, and generally only at the customer’s
request. NYSCEF Doc. No. 50 at 72:14-17, 73:21-23. Defendants produced the form F&B
estimate document on December 12, 2019. 3
Now, Plaintiffs have altered their position and, rather than seeking “individualized
communications” concerning the service charge pursuant to the ESI search, are asking for every
single communication with customers that contained the search terms in attachments. This abrupt
change in tactics is unduly burdensome, not proportionate to the needs of the case, and would
cause Defendant Sagbolt to have to re-run the searches in their entirety in a much more onerous
and expensive manner and re-produce many of the documents that it has already produced, such
as the contracts, event orders, and invoices which also contain the search terms. As Sagbolt’s
2
Notably Plaintiffs’counsel admit that the review of these documents was complete back in October 2019 and
Plaintiffs have been aware of the existence of the estimates since that time, raising questions as to why Plaintiffs
waited to move to compel on this issue until almost two years later, in July 2021.
3
This form was produced on the very first page of the document production.
3
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counsel previously informed the Court and Plaintiffs’ counsel, Sagbolt does not have the software
or capacity to search attachments on the individual computers. Therefore, to search attachments,
the emails would have to be collected from each Sagbolt computer and uploaded into Relativity in
order to be searchable. This means each and every mail folder, in its entirety, would have to be
uploaded to Relativity, the cost of which would be exorbitant. Then, Sagbolt could run the
searches of the attachments in Relativity.
The search of attachments for the search terms would almost certainly result in the
duplicate production of vast swaths of Defendants’ already voluminous production. For example,
Defendant produced scanned copies of banquet event orders, contracts and invoices for banquet
events, which makes up the bulk of the bate-stamped document production. Searching all
attachments for “service charge” and “grat” would result in the duplicate production of many of
these documents to the extent they were ever emailed. However, significantly, any emails
containing any individualized communications discussing the search terms have already been
produced, rendering this additional search unduly burdensome and not proportionate to the needs
of the case.
Furthermore, and contrary to Plaintiffs’ contentions, Defendants never represented that its
ESI search searched for text contained in attachments. The fact that the ESI search did not contain
all attachments to emails containing service charge should have been readily apparent to Plaintiffs
in 2019, as Plaintiffs knew that the approximately 13,500-document email production was not a
reproduction of the entire larger production of scanned documents from Defendant Sagbolt’s files,
including the contracts and other documents that contain the search terms.
Ultimately, Plaintiffs are seeking a “redo” of the agreed ESI search that occurred over two
years ago, and the information sought is simply not reasonable or proportionate to the needs of the
4
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case. Accordingly, Plaintiffs’ motion should be denied, or, alternatively, Plaintiffs should be
required to pay the costs of the requested additional ESI search.
II. MEMORANDUM OF LAW
A. Standard
CPLR § 3103 empowers the Court to limit disclosure to avoid “unreasonable annoyance,
expense, embarrassment, disadvantage, or other prejudice to any person or the courts.” As with all
discovery, requests for ESI searches must be proportionate and the cost and burden to the parties
must be weighed against the probative value of the documents and the ability to obtain the
discovery from other sources. See Plaitis v Manolakakis, 2018 NY Slip Op 31154[U], *11 [Sup
Ct, NY County 2018] (noting that ESI was not proportionate when witnesses could be asked about
documents and documents could be obtained from other sources).
B. Argument
Plaintiffs’ request for an entirely new ESI search requiring the imaging of all of Defendant
Sagbolt’s email systems in order to run search terms on all email attachments for estimates that
were rarely provided to customers, is not proportionate to the needs of the case in that it would
inevitably result in a production largely duplicative of the prior production in that it would include
estimates already produced. This request would place substantial financial burdens on Defendant
Sagbolt, without any showing that Defendants’ production was insufficient, especially since
Plaintiffs have multiple copies of the form estimate at issue, have emails discussing the issues
central to this case, and testimony that estimates were rarely provided to customers. Plaintiffs have
no basis to claim that any emails discussing the service charge were not captured, and searching
attachments to locate additional emails where additional estimates to customers that might be
attached is not proportionate to the needs of the case.
5
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Indeed, Plaintiffs have not shown that estimates were regularly provided to customers so
as to warrant an additional search for documents. In fact, estimates were only “rarely” provided
to customers and only if prompted to do so. 4 Plaintiffs’ counsel confirmed the same in the
following exchange:
Q And is that e-mail that you referenced [an email with an estimate] only
provided upon request?
A To my knowledge.
Q And how often are those estimates provided to a customer.
A In my experience, rarely.
NYSCEF Doc. No. 50 at 73:18-23 (emphasis added). Despite this testimony, Plaintiffs continue
to contend that searching for additional estimates is necessary. Conducting an expansive and
expensive search for the proverbial needle in the haystack is unduly burdensome, costly, and not
proportionate to the needs of this case.
Plaintiffs’ claim that Defendant Sagbolt attempted to conceal the estimates is unfounded.
First, Defendant Sagbolt produced some estimates with its initial document production in January
2019. The ESI search conducted later that year produced additional estimates. And Plaintiffs
concede that on October 20, 2020, Defendants produced even more estimates. From these overt
disclosures, it is clear that Plaintiffs’ allegations that Defendant attempted to deliberately conceal
these documents are entirely unfounded.
Plaintiffs’ claim that Defendant Sagbolt waived its objections to the production of
estimates is likewise meritless. In their Fifth Set of Document Requests to Defendants No. 4,
Plaintiffs sought: “All communications . . . including but not limited to email communications,
6
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promotional materials, advertisements, instructions, informational pamphlets, menus, banquet
event orders, contracts, receipts and invoices.” See NYSCEF Doc. No. 46 at 6. Plaintiffs did not
request estimates. In response to this Request, Defendants conducted the ESI search agreed to by
the parties. Responsive documents were produced.
In their Sixth Request for Production No. 2, Plaintiffs specifically seek “All estimates of
event costs provided to customers of Catered Events, including but not limited to, emails attaching or
otherwise sending such estimates to customers.” See NYSCEF Doc. No. 67 at p. 2. In response,
Defendant Sagbolt “otherwise objects to this request as overly broad and unduly [burdensome] to
the extent it seeks documents not covered by prior ESI search parameters; Plaintiffs have already
been provided with ESI search results relating to the service charge or service fee.” 5 Defendant
Sagbolt has repeatedly objected to conducting an additional ESI search. Plaintiffs’ claim that
Defendant Sagbolt has waived an objection should be rejected.
Finally, Defendant notes that in 2020, Plaintiffs claimed that this discovery was “germane
to certification considerations.” But, in their Motion to Certify Class, Plaintiffs argued that the
common questions of law and fact are “whether the defendants imposed charges that patrons would
consider to be gratuities[.]” See NYSCEF Doc. No. 71 at 4. An estimate does not impose a charge.
Nevertheless, the Court granted Plaintiffs’ Motion to Certify Class in its entirety on August 19,
2021 without these rarely provided estimates that Plaintiffs’ claimed were germane to their
motion.
In sum, Plaintiffs fail to adequately explain why they now need more estimates—if any
exist that were not already produced. Estimates were rarely provided to customers. Defendants
5
Admittedly, due to an apparent scrivener’s error “burdensome” was not included in this objection.
7
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conducted an expansive ESI search. And, in addition the estimates already produced, Defendant
Sagbolt produced email communications responsive to the search terms, banquet event orders,
contracts invoices for banquet events. Defendant Sagbolt did not waive its objection to the
estimates, it has repeatedly and explicitly objected to overbroad and unduly burdensome ESI
searches. Defendant Sagbolt did not hide the existence of estimates—it produced them. Plaintiffs’
Motion is unsupported and should therefore be denied.
III. CONCLUSION
Wherefore, Defendant Sagbolt, LLC respectfully request this Court enter an order denying
Plaintiff’s Motion Compel Production of Estimates from Defendant Sagbolt, LLC, and granting
Defendant any other appropriate relief.
Respectfully submitted,
GREENBERG TRAURIG, LLP
By: /s/ Michael J. Slocum________
Michael J. Slocum
500 Campus Drive
Suite 400
Florham Park, New Jersey 07932
(973) 443-3509
slocumm@gtlaw.com
Catherine H. Molloy
Florida Bar No. 33500
101 E. Kennedy Boulevard
Suite 1900
Tampa, Florida 33602
molloyk@gtlaw.com
Admitted pro hac vice
(813) 318-5700 – Telephone
Attorneys for Sagbolt, LLC,
Ocean Properties, Ltd., Patrick Walsh and
Thomas Guay
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Preview
FILED: WARREN COUNTY CLERK 08/20/2021 04:10 PM INDEX NO. EF2018-65232 NYSCEF DOC. NO. 83 RECEIVED NYSCEF: 08/20/2021 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF WARREN EVELYN O'BRIEN, JAMIE LYNN Index No.: 65232/2018 PATCHETT, CHRIS FORTNER, MICHAEL PETTA, on behalf of themselves and others similarly situated, DEFENDANT’S MEMORANDUM OF LAW IN OPPOSITION TO PLAINTIFFS’ Plaintiffs, MOTION TO COMPEL PRODUCTION OF ESTIMATES FROM DEFENDANT v. SAGBOLT, LLC SAGBOLT, LLC, OCEAN PROPERTIES, LTD., PORTSMOUTH CORPORATE FINANCIAL SERVICES, INC., PATRICK WALSH, and THOMAS GUAY Defendants. Defendant Sagbolt, LLC (“Sagbolt”) (“Defendant”), by and through its undersigned attorneys, submits this memorandum of law in opposition to Plaintiffs’ Motion to Compel Production of Estimates from Defendant Sagbolt, LLC (“Motion to Compel”), and states as follows: I. INTRODUCTION AND RELEVANT BACKGROUND Plaintiffs in this class action allege that Defendants misrepresented to customers of the Sagamore Hotel the nature and disposition of a “service charge” added to their bills for various events. Specifically, Plaintiffs claim Defendants failed to inform customers that the service charge would not be remitted to the staff as a tip, but rather kept by Defendants. Defendants have denied Plaintiffs’ claims and contend that the contracts that Defendants entered into with each customer provided the customers adequate notice of the service charge. ACTIVE 59554387v2 1 of 8 FILED: WARREN COUNTY CLERK 08/20/2021 04:10 PM INDEX NO. EF2018-65232 NYSCEF DOC. NO. 83 RECEIVED NYSCEF: 08/20/2021 Throughout the lengthy discovery period that has already spanned three and a half years, Plaintiffs have propounded multiple rounds of voluminous discovery requests upon Defendants. In May 2019, Defendants produced expansive discovery in response to Plaintiffs’ requests, including contracts, invoices, and banquet event orders, for years of banquet events. Defendants also produced the results of an ESI search conducted utilizing terms provided by Plaintiffs – “tips,” “tip,” “tipping,” “service charge,” “service fee,” “service charges,” “services fees,” “gratuity, “gratuities,” and “Grat.” The email production included communications with customers that contained informal estimates where the search terms were included in the text of the email. However, the email production did not include the search of attachments due to the limitations of Sagbolt’s email system, which is not stored on a central server. 1 Accordingly, Defendants separately produced other responsive documents maintained in its files, including contracts, event orders, and invoices. In total, Defendants have produced almost 100,000 pages of documents. At the time Defendants ran the search, Defendants understood that the search of emails – not attachments – was exactly what Plaintiffs desired. In their correspondence to Defendants and the Court, Plaintiffs have represented that the ESI search was intended to be limited and to determine “whether there were individualized communications concerning the service charge between customers and Defendants.” See Plaintiffs’ July 11, 2018 Letter to the Court (emphasis added). The ESI search and production accomplished this, as it included any emails containing such “individualized communications.” Plaintiffs represented that their proposed ESI search would “require a limited amount of electronic discovery of communications between customers and Defendants concerning the service charge.” Id. (emphasis added). In the Plaintiffs’ correspondence to the Court regarding the Parties’ agreed ESI search parameters, Plaintiffs stated 1 In other words, these emails are not stored in the “cloud” or any other central repository. Sagbolt had to run the search terms in each computer and did not have the software or capacity to search attachments. 2 ACTIVE 59554387v2 2 of 8 FILED: WARREN COUNTY CLERK 08/20/2021 04:10 PM INDEX NO. EF2018-65232 NYSCEF DOC. NO. 83 RECEIVED NYSCEF: 08/20/2021 that the production would be for “Electronic Communications between employees and customers at banquets Plaintiff worked concerning the Service Charge. The parties agreed upon the following search terms: ‘tips,’ ‘tip’, ‘tipping’, service charge’, ‘service fee’, ‘service charges’ ‘service fees’ ‘gratuity’, ‘gratuities, and ‘Grat.”’ NYSCEF Doc. No. 46 at 6. That search was performed, and all such electronic communications containing the search terms, i.e., emails, were produced, including a few that attached estimates. 2 As part of a lengthy conferral process following this production, Plaintiffs noted the estimates and inquired as to any documents used to create F&B (food and beverage) revenue estimates. In response to this request, Defendants informed Plaintiffs that a general excel spreadsheet was used as a tool to create F&B estimates, but that the F&B estimates were not maintained (unlike the contracts, event orders, and invoices, which were kept). Discovery has since confirmed that the estimates were rarely sent to customers, and generally only at the customer’s request. NYSCEF Doc. No. 50 at 72:14-17, 73:21-23. Defendants produced the form F&B estimate document on December 12, 2019. 3 Now, Plaintiffs have altered their position and, rather than seeking “individualized communications” concerning the service charge pursuant to the ESI search, are asking for every single communication with customers that contained the search terms in attachments. This abrupt change in tactics is unduly burdensome, not proportionate to the needs of the case, and would cause Defendant Sagbolt to have to re-run the searches in their entirety in a much more onerous and expensive manner and re-produce many of the documents that it has already produced, such as the contracts, event orders, and invoices which also contain the search terms. As Sagbolt’s 2 Notably Plaintiffs’counsel admit that the review of these documents was complete back in October 2019 and Plaintiffs have been aware of the existence of the estimates since that time, raising questions as to why Plaintiffs waited to move to compel on this issue until almost two years later, in July 2021. 3 This form was produced on the very first page of the document production. 3 ACTIVE 59554387v2 3 of 8 FILED: WARREN COUNTY CLERK 08/20/2021 04:10 PM INDEX NO. EF2018-65232 NYSCEF DOC. NO. 83 RECEIVED NYSCEF: 08/20/2021 counsel previously informed the Court and Plaintiffs’ counsel, Sagbolt does not have the software or capacity to search attachments on the individual computers. Therefore, to search attachments, the emails would have to be collected from each Sagbolt computer and uploaded into Relativity in order to be searchable. This means each and every mail folder, in its entirety, would have to be uploaded to Relativity, the cost of which would be exorbitant. Then, Sagbolt could run the searches of the attachments in Relativity. The search of attachments for the search terms would almost certainly result in the duplicate production of vast swaths of Defendants’ already voluminous production. For example, Defendant produced scanned copies of banquet event orders, contracts and invoices for banquet events, which makes up the bulk of the bate-stamped document production. Searching all attachments for “service charge” and “grat” would result in the duplicate production of many of these documents to the extent they were ever emailed. However, significantly, any emails containing any individualized communications discussing the search terms have already been produced, rendering this additional search unduly burdensome and not proportionate to the needs of the case. Furthermore, and contrary to Plaintiffs’ contentions, Defendants never represented that its ESI search searched for text contained in attachments. The fact that the ESI search did not contain all attachments to emails containing service charge should have been readily apparent to Plaintiffs in 2019, as Plaintiffs knew that the approximately 13,500-document email production was not a reproduction of the entire larger production of scanned documents from Defendant Sagbolt’s files, including the contracts and other documents that contain the search terms. Ultimately, Plaintiffs are seeking a “redo” of the agreed ESI search that occurred over two years ago, and the information sought is simply not reasonable or proportionate to the needs of the 4 ACTIVE 59554387v2 4 of 8 FILED: WARREN COUNTY CLERK 08/20/2021 04:10 PM INDEX NO. EF2018-65232 NYSCEF DOC. NO. 83 RECEIVED NYSCEF: 08/20/2021 case. Accordingly, Plaintiffs’ motion should be denied, or, alternatively, Plaintiffs should be required to pay the costs of the requested additional ESI search. II. MEMORANDUM OF LAW A. Standard CPLR § 3103 empowers the Court to limit disclosure to avoid “unreasonable annoyance, expense, embarrassment, disadvantage, or other prejudice to any person or the courts.” As with all discovery, requests for ESI searches must be proportionate and the cost and burden to the parties must be weighed against the probative value of the documents and the ability to obtain the discovery from other sources. See Plaitis v Manolakakis, 2018 NY Slip Op 31154[U], *11 [Sup Ct, NY County 2018] (noting that ESI was not proportionate when witnesses could be asked about documents and documents could be obtained from other sources). B. Argument Plaintiffs’ request for an entirely new ESI search requiring the imaging of all of Defendant Sagbolt’s email systems in order to run search terms on all email attachments for estimates that were rarely provided to customers, is not proportionate to the needs of the case in that it would inevitably result in a production largely duplicative of the prior production in that it would include estimates already produced. This request would place substantial financial burdens on Defendant Sagbolt, without any showing that Defendants’ production was insufficient, especially since Plaintiffs have multiple copies of the form estimate at issue, have emails discussing the issues central to this case, and testimony that estimates were rarely provided to customers. Plaintiffs have no basis to claim that any emails discussing the service charge were not captured, and searching attachments to locate additional emails where additional estimates to customers that might be attached is not proportionate to the needs of the case. 5 ACTIVE 59554387v2 5 of 8 FILED: WARREN COUNTY CLERK 08/20/2021 04:10 PM INDEX NO. EF2018-65232 NYSCEF DOC. NO. 83 RECEIVED NYSCEF: 08/20/2021 Indeed, Plaintiffs have not shown that estimates were regularly provided to customers so as to warrant an additional search for documents. In fact, estimates were only “rarely” provided to customers and only if prompted to do so. 4 Plaintiffs’ counsel confirmed the same in the following exchange: Q And is that e-mail that you referenced [an email with an estimate] only provided upon request? A To my knowledge. Q And how often are those estimates provided to a customer. A In my experience, rarely. NYSCEF Doc. No. 50 at 73:18-23 (emphasis added). Despite this testimony, Plaintiffs continue to contend that searching for additional estimates is necessary. Conducting an expansive and expensive search for the proverbial needle in the haystack is unduly burdensome, costly, and not proportionate to the needs of this case. Plaintiffs’ claim that Defendant Sagbolt attempted to conceal the estimates is unfounded. First, Defendant Sagbolt produced some estimates with its initial document production in January 2019. The ESI search conducted later that year produced additional estimates. And Plaintiffs concede that on October 20, 2020, Defendants produced even more estimates. From these overt disclosures, it is clear that Plaintiffs’ allegations that Defendant attempted to deliberately conceal these documents are entirely unfounded. Plaintiffs’ claim that Defendant Sagbolt waived its objections to the production of estimates is likewise meritless. In their Fifth Set of Document Requests to Defendants No. 4, Plaintiffs sought: “All communications . . . including but not limited to email communications, 6 ACTIVE 59554387v2 6 of 8 FILED: WARREN COUNTY CLERK 08/20/2021 04:10 PM INDEX NO. EF2018-65232 NYSCEF DOC. NO. 83 RECEIVED NYSCEF: 08/20/2021 promotional materials, advertisements, instructions, informational pamphlets, menus, banquet event orders, contracts, receipts and invoices.” See NYSCEF Doc. No. 46 at 6. Plaintiffs did not request estimates. In response to this Request, Defendants conducted the ESI search agreed to by the parties. Responsive documents were produced. In their Sixth Request for Production No. 2, Plaintiffs specifically seek “All estimates of event costs provided to customers of Catered Events, including but not limited to, emails attaching or otherwise sending such estimates to customers.” See NYSCEF Doc. No. 67 at p. 2. In response, Defendant Sagbolt “otherwise objects to this request as overly broad and unduly [burdensome] to the extent it seeks documents not covered by prior ESI search parameters; Plaintiffs have already been provided with ESI search results relating to the service charge or service fee.” 5 Defendant Sagbolt has repeatedly objected to conducting an additional ESI search. Plaintiffs’ claim that Defendant Sagbolt has waived an objection should be rejected. Finally, Defendant notes that in 2020, Plaintiffs claimed that this discovery was “germane to certification considerations.” But, in their Motion to Certify Class, Plaintiffs argued that the common questions of law and fact are “whether the defendants imposed charges that patrons would consider to be gratuities[.]” See NYSCEF Doc. No. 71 at 4. An estimate does not impose a charge. Nevertheless, the Court granted Plaintiffs’ Motion to Certify Class in its entirety on August 19, 2021 without these rarely provided estimates that Plaintiffs’ claimed were germane to their motion. In sum, Plaintiffs fail to adequately explain why they now need more estimates—if any exist that were not already produced. Estimates were rarely provided to customers. Defendants 5 Admittedly, due to an apparent scrivener’s error “burdensome” was not included in this objection. 7 ACTIVE 59554387v2 7 of 8 FILED: WARREN COUNTY CLERK 08/20/2021 04:10 PM INDEX NO. EF2018-65232 NYSCEF DOC. NO. 83 RECEIVED NYSCEF: 08/20/2021 conducted an expansive ESI search. And, in addition the estimates already produced, Defendant Sagbolt produced email communications responsive to the search terms, banquet event orders, contracts invoices for banquet events. Defendant Sagbolt did not waive its objection to the estimates, it has repeatedly and explicitly objected to overbroad and unduly burdensome ESI searches. Defendant Sagbolt did not hide the existence of estimates—it produced them. Plaintiffs’ Motion is unsupported and should therefore be denied. III. CONCLUSION Wherefore, Defendant Sagbolt, LLC respectfully request this Court enter an order denying Plaintiff’s Motion Compel Production of Estimates from Defendant Sagbolt, LLC, and granting Defendant any other appropriate relief. Respectfully submitted, GREENBERG TRAURIG, LLP By: /s/ Michael J. Slocum________ Michael J. Slocum 500 Campus Drive Suite 400 Florham Park, New Jersey 07932 (973) 443-3509 slocumm@gtlaw.com Catherine H. Molloy Florida Bar No. 33500 101 E. Kennedy Boulevard Suite 1900 Tampa, Florida 33602 molloyk@gtlaw.com Admitted pro hac vice (813) 318-5700 – Telephone Attorneys for Sagbolt, LLC, Ocean Properties, Ltd., Patrick Walsh and Thomas Guay 8 ACTIVE 59554387v2 8 of 8