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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF WESTCHESTER
PAMELA GOLDSTEIN,
ELLYN & TONY BERK, as Administrators
of the Estate of Winifred Berk,
Index No. 60767/2018
and PAUL BENJAMIN, on behalf of
themselves and all others similarly Hon. Linda S. Jamieson
situated,
Plaintiffs, NOTICE OF SETTLEMENT OF
ORDER
v.
HOULIHAN/LAWRENCE INC.,
Defendant.
PLEASE TAKE NOTICE that the annexed proposed counter-order has been
electronically filed and will be presented by electronic means to the Hon. Linda S.
Jamieson, a justice of this Court at the courthouse located at 111 Dr. Martin Luther
King Jr. Blvd, White Plains, NY 10601, on June 3, 2020, at 9:00 AM, for settlement
and signature.
Date: Armonk, New York
May 29, 2020
BOIES SCHILLER FLEXNER LLP
By: /s/ Jeremy Vest
William Ohlemeyer, Esq.
Jeremy Vest, Esq.
333 Main Street
Armonk, New York 10504
(914) 749-8305
Attorneys for Plaintiffs
To: Alfred E. Donnellan
Nelida Lara
DELBELLO DONNELLAN WEINGARTEN
WISE & WIEDERKEHR LLP
One North Lexington Avenue
White Plains, New York 10601
(914) 681-0200
Robert D. MacGill (Pro Hac Vice)
Jessica M. Lindemann (Pro Hac Vice)
BARNES & THORNBURG LLP
11 South Meridian Street
Indianapolis, IN 46204
(317) 231-7223
Attorneys for Defendant Houlihan Lawrence, Inc.
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF WESTCHESTER
PAMELA GOLDSTEIN,
ELLYN & TONY BERK, as Administrators
of the Estate of Winifred Berk,
Index No. 60767/2018
and PAUL BENJAMIN, on behalf of
themselves and all others similarly Hon. Linda S. Jamieson
situated,
Plaintiffs, [PROPOSED] COUNTER-
ORDER
v.
HOULIHAN/LAWRENCE INC.,
Defendant.
WHEREAS on February 20, 2020 Defendant moved before the Discovery
Referee, William P. Harrington, to obtain a protective order in relation to certain
requests for class certification discovery made by Plaintiffs;
WHEREAS the Discovery Referee heard the motion upon reading
Defendant’s Second Motion for a Protective Order dated February 20, 2020 with
exhibits; Defendant’s Reply in Further support of its Second Motion dated March
11, 2020 with exhibits; Plaintiffs’ letter in opposition dated March 6, 2020 with
exhibits; and Plaintiffs’ letter dated January 27, 2020 with exhibits;
WHEREAS after due deliberation the Discovery Referee rendered a Fourth
Report and Recommendation dated April 30, 2020 with exhibits whereby
Defendant’s motion was granted in part and denied in part, in accordance with the
recommendations set forth therein;
WHEREAS the Discovery Referee’s recommendations were based in part
on the mistake of fact that the designation of class certification document
custodians, including the designation of non-party James Michael Gricar,
preceded his appointment as Discovery Referee;
WHEREAS at a July 18, 2019 untranscribed discovery conference, the
Discovery Referee denied Plaintiffs’ request dated May 30, 2019, a copy of which is
annexed hereto as Exhibit A, for the designation of Stephen Meyers and
Christopher Meyers as class certification document custodians and for Defendant’s
identification of other individuals with knowledge of Defendant’s dual agency
policies, procedures, and practices;
WHEREAS at the untranscribed July 18, 2019 discovery conference the
Discovery Referee further ordered Defendant to collect documents from two class
certification document custodians, Annette Chrystal and James Michael Gricar,
using no more than six search terms to be agreed on by the parties or further
ordered by the Discovery Referee;
WHEREAS Defendant thereafter served Responses and Objections to
Plaintiffs’ First Set of Interrogatories dated December 3, 2019, a copy of which is
annexed hereto as Exhibit B, which identified Stephen Meyers, Christopher
Meyers, Elizabeth Nunan, Debra Dalton, Annette Chrystal and “various office
managers” as individuals with knowledge of its dual agency policies, procedures,
and practices;
WHEREAS after Defendant’s Second Motion for a Protective Order was
under submission Defendant produced a privilege log dated April 27, 2020, a copy
of which is annexed hereto as Exhibit C, identifying Stephen Meyers, Christopher
Meyers, Debra Dalton, and “HL Branch Managers” as among those involved in
communications responsive to Plaintiffs’ document requests that Defendant is
withholding as privileged;
NOW, upon reading the documents annexed hereto as Exhibits A to C and
the Fourth Report and Recommendation dated April 30, 2020, a copy of which is
annexed hereto as Exhibit D; it is hereby,
ORDERED that the Discovery Referee’s Fourth Report and
Recommendation dated April 30, 2020 is rejected pursuant to CPLR 4403
insofar as it granted Defendant’s Second Motion for a Protective Order; it is
further
ORDERED that Defendant’s Second Motion for a Protective Order is
denied; it is further
ORDERED that Defendant collect and produce documents from
Stephen Meyers, Christopher Meyers, Debra Dalton, Elizabeth Nunan, and the
managers during the relevant period for discovery of its Bronxville, Scarsdale,
and White Plains offices (the “Custodians”); it is further
ORDERED that the scope of party class certification discovery includes
the information the Discovery Master ordered produced by non-party James
Michael Gricar in the Third Report & Recommendation; it is further
ORDERED that Defendant collect documents from Annette Chrystal
and James Michael Gricar using the search terms requested by Plaintiffs in
their March 6, 2020 opposition to Defendant’s Second Motion for a Protective
Order; it is further
ORDERED that Defendant collect the “In-House Bonus e-mails” that
the Discovery Master ordered Defendant to produce in the Second Report and
Recommendation using the search terms requested by Plaintiffs in their March
6, 2020 opposition to Defendant’s Second Motion for a Protective Order; it is
further
ORDERED that Defendant produce any documents relating to its
“Disclosure and Prompt Sheet for Sales Agents” collected from Annette
Chrystal, James Michael Gricar, or the Custodians; it is further
ORDERED that Defendant produce any compensation agreements by
and between Defendant and the sales agents involved in Plaintiffs’ residential
real estate transactions; it is further
ORDERED that Defendant produce any performance reviews of the
managers during the relevant period of discovery of its Bronxville, Scarsdale
and White Plains offices; it is further
ORDERED that Defendant produce documents relating to the
“rationale” for its dual agency policies, procedures, and practices, as directed in
the Second Report and Recommendation, including any “market share growth”
strategy;
ORDERED that Defendant produce documents relating to any revision
of its “Operation Guidelines” relating to the “In-House Bonus” or its dual
agency policies, procedures, and practices; it is further
ORDERED that the Discovery Referee’s Fourth Report and
Recommendation dated April 30, 2020 is confirmed pursuant to CPLR 4403 to
the extent it denied Defendant’s Second Motion for a Protective Order.
SO ORDERED.
Dated: White Plains, New York
____________, 2020
Hon. Linda S. Jamieson, J.S.C
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF WESTCHESTER
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF WESTCHESTER
X PAMELA GOLDSTEIN,
ELLYN & TONY BERK, as
Administrators of the Estate
of Winifred Berk,
and PAUL BENJAMIN, on
behalf of themselves NOTICE OF SETTLEMENT OF
ORDER
and all others similarly situated,
Plaintiffs,
Index No. 60767/2018
-against-
Hon. Linda S. Jamieson
v.
NOTICE OF SETTLEMENT OF
HOULIHAN/LAWRENCE INC., ORDER
Defendant.
PLEASE TAKE NOTICE that the annexed proposed counter-order has been
electronically filed and will be presented by electronic means to the Hon. Linda S.
Jamieson, a justice of this Court at the courthouse located at 111 Dr. Martin Luther
King Jr. Blvd, White Plains, NY 10601, on June 3, 2020, at 9:00 AM, for settlement
and signature.
Date: Armonk, New York
May 29, 2020
BOIES SCHILLER FLEXNER LLP
By: /s/ Jeremy Vest
William Ohlemeyer, Esq.
Jeremy Vest, Esq.
333 Main Street
Armonk, New York 10504
(914) 749-8305
Attorneys for Plaintiffs
To: Alfred E. Donnellan
Nelida Lara
DELBELLO DONNELLAN WEINGARTEN
WISE & WIEDERKEHR LLP
One North Lexington Avenue
White Plains, New York 10601
(914) 681-0200
Dated: White Plains, New York
May 22, 2020
DELBELLO DONNELLAN WEINGARTEN
WISE & WIEDERKEHR LLP
By: /s/ Alfred E. Donnellan
Alfred E. Donnellan
Nelida Lara
One North Lexington Avenue
White Plains, New York 10601
(914) 681-0200
Robert D. MacGill (Pro
Hac Vice)
Jessica M. Lindemann (Pro
Hac Vice)
BARNES & THORNBURG
LLP
11 South Meridian Street
Indianapolis, IN 46204
(317) 231-7223
Attorneys for Defendant
Houlihan Lawrence, Inc.
To: Jeremy Vest
William
Ohlemeyer
BOIES SCHILLER FLEXNER LLP
333 Main Street
Armonk, New York
10504 (914) 749-8305
Attorneys for Plaintiffs
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF WESTCHESTER
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF WESTCHESTER
X PAMELA GOLDSTEIN,
ELLYN & TONY BERK, as
Administrators of the Estate
of Winifred Berk,
and PAUL BENJAMIN, on
behalf of themselves
[PROPOSED] ORDER
and all others similarly situated,
Plaintiffs,
Index No. 60767/2018
-against-
Hon. Linda S. Jamieson
v.
[PROPOSED]
HOULIHAN/LAWRENCE INC., COUNTER-ORDER
Defendant.
WHEREAS on February 20, 2020 Defendant moved before the Discovery
Referee, William P. Harrington, to obtain a protective order in relation to certain
requests for class certification discovery made by Plaintiffs;
WHEREAS the Discovery Referee heard the motion upon reading
Defendant’s Second Motion for Recommendation dated February 20, 2020 with exhibits;
Defendant’s Reply in Further support of its Second Motion dated March 11, 2020; Plaintiffs’
letter in opposition dated March 6, 2020; and Plaintiffs’ letter dated January 27, 2020;a
Protective Order dated February 20, 2020 with exhibits; Defendant’s Reply in
Further support of its Second Motion dated March 11, 2020 with exhibits; Plaintiffs’
letter in opposition dated March 6, 2020 with exhibits; and Plaintiffs’ letter dated
January 27, 2020 with exhibits;
WHEREAS after due deliberation the Discovery Referee rendered a Fourth
Report and Recommendation dated April 30, 2020 with exhibits whereby
Defendant’s motion was granted in part and denied in part, in accordance with the
recommendations set forth therein;
WHEREAS the Discovery Referee’s recommendations were based in part on
the mistake of fact that the designation of class certification document custodians,
including the designation of non-party James Michael Gricar, preceded his
appointment as Discovery Referee;
WHEREAS at a July 18, 2019 untranscribed discovery conference, the
Discovery Referee denied Plaintiffs’ request dated May 30, 2019, a copy of which is
annexed hereto as Exhibit A, for the designation of Stephen Meyers and
Christopher Meyers as class certification document custodians and for Defendant’s
identification of other individuals with knowledge of Defendant’s dual agency
policies, procedures, and practices;
WHEREAS at the untranscribed July 18, 2019 discovery conference the
Discovery Referee further ordered Defendant to collect documents from two class
certification document custodians, Annette Chrystal and James Michael Gricar,
using no more than six search terms to be agreed on by the parties or further
ordered by the Discovery Referee;
WHEREAS Defendant thereafter served Responses and Objections to
Plaintiffs’ First Set of Interrogatories dated December 3, 2019, a copy of which is
annexed hereto as Exhibit B, which identified Stephen Meyers, Christopher
Meyers, Elizabeth Nunan, Debra Dalton, Annette Chrystal and “various office
managers” as individuals with knowledge of its dual agency policies, procedures,
and practices;
WHEREAS after Defendant’s Second Motion for a Protective Order was
under submission Defendant produced a privilege log dated April 27, 2020, a copy of
which is annexed hereto as Exhibit C, identifying Stephen Meyers, Christopher
Meyers, Debra Dalton, and “HL Branch Managers” as among those involved in
communications responsive to Plaintiffs’ document requests that Defendant is
withholding as privileged;
NOW, upon reading the Fourth Report and Recommendation dated April 30, 2020
and exhibits, a copy of which is annexed hereto as Exhibit A; it is hereby,documents
annexed hereto as Exhibits A to C and the Fourth Report and Recommendation
dated April 30, 2020, a copy of which is annexed hereto as Exhibit D; it is hereby,
ORDERED that the Discovery Referee’s Fourth Report and
Recommendation dated April 30, 2020 with exhibits is confirmed in its entirety
pursuant to CPLR 4403.is rejected pursuant to CPLR 4403 insofar as it granted
Defendant’s Second Motion for a Protective Order; it is further
ORDERED that Defendant’s Second Motion for a Protective Order is
denied; it is further
ORDERED that Defendant collect and produce documents from Stephen
Meyers, Christopher Meyers, Debra Dalton, Elizabeth Nunan, and the
managers during the relevant period for discovery of its Bronxville, Scarsdale,
and White Plains offices (the “Custodians”); it is further
ORDERED that the scope of party class certification discovery includes
the information the Discovery Master ordered produced by non-party James
Michael Gricar in the Third Report & Recommendation; it is further
ORDERED that Defendant collect documents from Annette Chrystal
and James Michael Gricar using the search terms requested by Plaintiffs in
their March 6, 2020 opposition to Defendant’s Second Motion for a Protective
Order; it is further
ORDERED that Defendant collect the “In-House Bonus e-mails” that the
Discovery Master ordered Defendant to produce in the Second Report and
Recommendation using the search terms requested by Plaintiffs in their March
6, 2020 opposition to Defendant’s Second Motion for a Protective Order; it is
further
ORDERED that Defendant produce any documents relating to its
“Disclosure and Prompt Sheet for Sales Agents” collected from Annette
Chrystal, James Michael Gricar, or the Custodians; it is further
ORDERED that Defendant produce any compensation agreements by
and between Defendant and the sales agents involved in Plaintiffs’ residential
real estate transactions; it is further
ORDERED that Defendant produce any performance reviews of the
managers during the relevant period of discovery of its Bronxville, Scarsdale
and White Plains offices; it is further
ORDERED that Defendant produce documents relating to the
“rationale” for its dual agency policies, procedures, and practices, as directed in
the Second Report and Recommendation, including any “market share growth”
strategy;
ORDERED that Defendant produce documents relating to any revision
of its “Operation Guidelines” relating to the “In-House Bonus” or its dual agency
policies, procedures, and practices; it is further
ORDERED that the Discovery Referee’s Fourth Report and
Recommendation dated April 30, 2020 is confirmed pursuant to CPLR 4403 to
the extent it denied Defendant’s Second Motion for a Protective Order.
SO ORDERED.
Dated: White Plains, New York
____________, 2020
Hon. Linda S. Jamieson, J.S.C
Preview
SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF WESTCHESTER PAMELA GOLDSTEIN, ELLYN & TONY BERK, as Administrators of the Estate of Winifred Berk, Index No. 60767/2018 and PAUL BENJAMIN, on behalf of themselves and all others similarly Hon. Linda S. Jamieson situated, Plaintiffs, NOTICE OF SETTLEMENT OF ORDER v. HOULIHAN/LAWRENCE INC., Defendant. PLEASE TAKE NOTICE that the annexed proposed counter-order has been electronically filed and will be presented by electronic means to the Hon. Linda S. Jamieson, a justice of this Court at the courthouse located at 111 Dr. Martin Luther King Jr. Blvd, White Plains, NY 10601, on June 3, 2020, at 9:00 AM, for settlement and signature. Date: Armonk, New York May 29, 2020 BOIES SCHILLER FLEXNER LLP By: /s/ Jeremy Vest William Ohlemeyer, Esq. Jeremy Vest, Esq. 333 Main Street Armonk, New York 10504 (914) 749-8305 Attorneys for Plaintiffs To: Alfred E. Donnellan Nelida Lara DELBELLO DONNELLAN WEINGARTEN WISE & WIEDERKEHR LLP One North Lexington Avenue White Plains, New York 10601 (914) 681-0200 Robert D. MacGill (Pro Hac Vice) Jessica M. Lindemann (Pro Hac Vice) BARNES & THORNBURG LLP 11 South Meridian Street Indianapolis, IN 46204 (317) 231-7223 Attorneys for Defendant Houlihan Lawrence, Inc. SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF WESTCHESTER PAMELA GOLDSTEIN, ELLYN & TONY BERK, as Administrators of the Estate of Winifred Berk, Index No. 60767/2018 and PAUL BENJAMIN, on behalf of themselves and all others similarly Hon. Linda S. Jamieson situated, Plaintiffs, [PROPOSED] COUNTER- ORDER v. HOULIHAN/LAWRENCE INC., Defendant. WHEREAS on February 20, 2020 Defendant moved before the Discovery Referee, William P. Harrington, to obtain a protective order in relation to certain requests for class certification discovery made by Plaintiffs; WHEREAS the Discovery Referee heard the motion upon reading Defendant’s Second Motion for a Protective Order dated February 20, 2020 with exhibits; Defendant’s Reply in Further support of its Second Motion dated March 11, 2020 with exhibits; Plaintiffs’ letter in opposition dated March 6, 2020 with exhibits; and Plaintiffs’ letter dated January 27, 2020 with exhibits; WHEREAS after due deliberation the Discovery Referee rendered a Fourth Report and Recommendation dated April 30, 2020 with exhibits whereby Defendant’s motion was granted in part and denied in part, in accordance with the recommendations set forth therein; WHEREAS the Discovery Referee’s recommendations were based in part on the mistake of fact that the designation of class certification document custodians, including the designation of non-party James Michael Gricar, preceded his appointment as Discovery Referee; WHEREAS at a July 18, 2019 untranscribed discovery conference, the Discovery Referee denied Plaintiffs’ request dated May 30, 2019, a copy of which is annexed hereto as Exhibit A, for the designation of Stephen Meyers and Christopher Meyers as class certification document custodians and for Defendant’s identification of other individuals with knowledge of Defendant’s dual agency policies, procedures, and practices; WHEREAS at the untranscribed July 18, 2019 discovery conference the Discovery Referee further ordered Defendant to collect documents from two class certification document custodians, Annette Chrystal and James Michael Gricar, using no more than six search terms to be agreed on by the parties or further ordered by the Discovery Referee; WHEREAS Defendant thereafter served Responses and Objections to Plaintiffs’ First Set of Interrogatories dated December 3, 2019, a copy of which is annexed hereto as Exhibit B, which identified Stephen Meyers, Christopher Meyers, Elizabeth Nunan, Debra Dalton, Annette Chrystal and “various office managers” as individuals with knowledge of its dual agency policies, procedures, and practices; WHEREAS after Defendant’s Second Motion for a Protective Order was under submission Defendant produced a privilege log dated April 27, 2020, a copy of which is annexed hereto as Exhibit C, identifying Stephen Meyers, Christopher Meyers, Debra Dalton, and “HL Branch Managers” as among those involved in communications responsive to Plaintiffs’ document requests that Defendant is withholding as privileged; NOW, upon reading the documents annexed hereto as Exhibits A to C and the Fourth Report and Recommendation dated April 30, 2020, a copy of which is annexed hereto as Exhibit D; it is hereby, ORDERED that the Discovery Referee’s Fourth Report and Recommendation dated April 30, 2020 is rejected pursuant to CPLR 4403 insofar as it granted Defendant’s Second Motion for a Protective Order; it is further ORDERED that Defendant’s Second Motion for a Protective Order is denied; it is further ORDERED that Defendant collect and produce documents from Stephen Meyers, Christopher Meyers, Debra Dalton, Elizabeth Nunan, and the managers during the relevant period for discovery of its Bronxville, Scarsdale, and White Plains offices (the “Custodians”); it is further ORDERED that the scope of party class certification discovery includes the information the Discovery Master ordered produced by non-party James Michael Gricar in the Third Report & Recommendation; it is further ORDERED that Defendant collect documents from Annette Chrystal and James Michael Gricar using the search terms requested by Plaintiffs in their March 6, 2020 opposition to Defendant’s Second Motion for a Protective Order; it is further ORDERED that Defendant collect the “In-House Bonus e-mails” that the Discovery Master ordered Defendant to produce in the Second Report and Recommendation using the search terms requested by Plaintiffs in their March 6, 2020 opposition to Defendant’s Second Motion for a Protective Order; it is further ORDERED that Defendant produce any documents relating to its “Disclosure and Prompt Sheet for Sales Agents” collected from Annette Chrystal, James Michael Gricar, or the Custodians; it is further ORDERED that Defendant produce any compensation agreements by and between Defendant and the sales agents involved in Plaintiffs’ residential real estate transactions; it is further ORDERED that Defendant produce any performance reviews of the managers during the relevant period of discovery of its Bronxville, Scarsdale and White Plains offices; it is further ORDERED that Defendant produce documents relating to the “rationale” for its dual agency policies, procedures, and practices, as directed in the Second Report and Recommendation, including any “market share growth” strategy; ORDERED that Defendant produce documents relating to any revision of its “Operation Guidelines” relating to the “In-House Bonus” or its dual agency policies, procedures, and practices; it is further ORDERED that the Discovery Referee’s Fourth Report and Recommendation dated April 30, 2020 is confirmed pursuant to CPLR 4403 to the extent it denied Defendant’s Second Motion for a Protective Order. SO ORDERED. Dated: White Plains, New York ____________, 2020 Hon. Linda S. Jamieson, J.S.C SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF WESTCHESTER SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF WESTCHESTER X PAMELA GOLDSTEIN, ELLYN & TONY BERK, as Administrators of the Estate of Winifred Berk, and PAUL BENJAMIN, on behalf of themselves NOTICE OF SETTLEMENT OF ORDER and all others similarly situated, Plaintiffs, Index No. 60767/2018 -against- Hon. Linda S. Jamieson v. NOTICE OF SETTLEMENT OF HOULIHAN/LAWRENCE INC., ORDER Defendant. PLEASE TAKE NOTICE that the annexed proposed counter-order has been electronically filed and will be presented by electronic means to the Hon. Linda S. Jamieson, a justice of this Court at the courthouse located at 111 Dr. Martin Luther King Jr. Blvd, White Plains, NY 10601, on June 3, 2020, at 9:00 AM, for settlement and signature. Date: Armonk, New York May 29, 2020 BOIES SCHILLER FLEXNER LLP By: /s/ Jeremy Vest William Ohlemeyer, Esq. Jeremy Vest, Esq. 333 Main Street Armonk, New York 10504 (914) 749-8305 Attorneys for Plaintiffs To: Alfred E. Donnellan Nelida Lara DELBELLO DONNELLAN WEINGARTEN WISE & WIEDERKEHR LLP One North Lexington Avenue White Plains, New York 10601 (914) 681-0200 Dated: White Plains, New York May 22, 2020 DELBELLO DONNELLAN WEINGARTEN WISE & WIEDERKEHR LLP By: /s/ Alfred E. Donnellan Alfred E. Donnellan Nelida Lara One North Lexington Avenue White Plains, New York 10601 (914) 681-0200 Robert D. MacGill (Pro Hac Vice) Jessica M. Lindemann (Pro Hac Vice) BARNES & THORNBURG LLP 11 South Meridian Street Indianapolis, IN 46204 (317) 231-7223 Attorneys for Defendant Houlihan Lawrence, Inc. To: Jeremy Vest William Ohlemeyer BOIES SCHILLER FLEXNER LLP 333 Main Street Armonk, New York 10504 (914) 749-8305 Attorneys for Plaintiffs SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF WESTCHESTER SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF WESTCHESTER X PAMELA GOLDSTEIN, ELLYN & TONY BERK, as Administrators of the Estate of Winifred Berk, and PAUL BENJAMIN, on behalf of themselves [PROPOSED] ORDER and all others similarly situated, Plaintiffs, Index No. 60767/2018 -against- Hon. Linda S. Jamieson v. [PROPOSED] HOULIHAN/LAWRENCE INC., COUNTER-ORDER Defendant. WHEREAS on February 20, 2020 Defendant moved before the Discovery Referee, William P. Harrington, to obtain a protective order in relation to certain requests for class certification discovery made by Plaintiffs; WHEREAS the Discovery Referee heard the motion upon reading Defendant’s Second Motion for Recommendation dated February 20, 2020 with exhibits; Defendant’s Reply in Further support of its Second Motion dated March 11, 2020; Plaintiffs’ letter in opposition dated March 6, 2020; and Plaintiffs’ letter dated January 27, 2020;a Protective Order dated February 20, 2020 with exhibits; Defendant’s Reply in Further support of its Second Motion dated March 11, 2020 with exhibits; Plaintiffs’ letter in opposition dated March 6, 2020 with exhibits; and Plaintiffs’ letter dated January 27, 2020 with exhibits; WHEREAS after due deliberation the Discovery Referee rendered a Fourth Report and Recommendation dated April 30, 2020 with exhibits whereby Defendant’s motion was granted in part and denied in part, in accordance with the recommendations set forth therein; WHEREAS the Discovery Referee’s recommendations were based in part on the mistake of fact that the designation of class certification document custodians, including the designation of non-party James Michael Gricar, preceded his appointment as Discovery Referee; WHEREAS at a July 18, 2019 untranscribed discovery conference, the Discovery Referee denied Plaintiffs’ request dated May 30, 2019, a copy of which is annexed hereto as Exhibit A, for the designation of Stephen Meyers and Christopher Meyers as class certification document custodians and for Defendant’s identification of other individuals with knowledge of Defendant’s dual agency policies, procedures, and practices; WHEREAS at the untranscribed July 18, 2019 discovery conference the Discovery Referee further ordered Defendant to collect documents from two class certification document custodians, Annette Chrystal and James Michael Gricar, using no more than six search terms to be agreed on by the parties or further ordered by the Discovery Referee; WHEREAS Defendant thereafter served Responses and Objections to Plaintiffs’ First Set of Interrogatories dated December 3, 2019, a copy of which is annexed hereto as Exhibit B, which identified Stephen Meyers, Christopher Meyers, Elizabeth Nunan, Debra Dalton, Annette Chrystal and “various office managers” as individuals with knowledge of its dual agency policies, procedures, and practices; WHEREAS after Defendant’s Second Motion for a Protective Order was under submission Defendant produced a privilege log dated April 27, 2020, a copy of which is annexed hereto as Exhibit C, identifying Stephen Meyers, Christopher Meyers, Debra Dalton, and “HL Branch Managers” as among those involved in communications responsive to Plaintiffs’ document requests that Defendant is withholding as privileged; NOW, upon reading the Fourth Report and Recommendation dated April 30, 2020 and exhibits, a copy of which is annexed hereto as Exhibit A; it is hereby,documents annexed hereto as Exhibits A to C and the Fourth Report and Recommendation dated April 30, 2020, a copy of which is annexed hereto as Exhibit D; it is hereby, ORDERED that the Discovery Referee’s Fourth Report and Recommendation dated April 30, 2020 with exhibits is confirmed in its entirety pursuant to CPLR 4403.is rejected pursuant to CPLR 4403 insofar as it granted Defendant’s Second Motion for a Protective Order; it is further ORDERED that Defendant’s Second Motion for a Protective Order is denied; it is further ORDERED that Defendant collect and produce documents from Stephen Meyers, Christopher Meyers, Debra Dalton, Elizabeth Nunan, and the managers during the relevant period for discovery of its Bronxville, Scarsdale, and White Plains offices (the “Custodians”); it is further ORDERED that the scope of party class certification discovery includes the information the Discovery Master ordered produced by non-party James Michael Gricar in the Third Report & Recommendation; it is further ORDERED that Defendant collect documents from Annette Chrystal and James Michael Gricar using the search terms requested by Plaintiffs in their March 6, 2020 opposition to Defendant’s Second Motion for a Protective Order; it is further ORDERED that Defendant collect the “In-House Bonus e-mails” that the Discovery Master ordered Defendant to produce in the Second Report and Recommendation using the search terms requested by Plaintiffs in their March 6, 2020 opposition to Defendant’s Second Motion for a Protective Order; it is further ORDERED that Defendant produce any documents relating to its “Disclosure and Prompt Sheet for Sales Agents” collected from Annette Chrystal, James Michael Gricar, or the Custodians; it is further ORDERED that Defendant produce any compensation agreements by and between Defendant and the sales agents involved in Plaintiffs’ residential real estate transactions; it is further ORDERED that Defendant produce any performance reviews of the managers during the relevant period of discovery of its Bronxville, Scarsdale and White Plains offices; it is further ORDERED that Defendant produce documents relating to the “rationale” for its dual agency policies, procedures, and practices, as directed in the Second Report and Recommendation, including any “market share growth” strategy; ORDERED that Defendant produce documents relating to any revision of its “Operation Guidelines” relating to the “In-House Bonus” or its dual agency policies, procedures, and practices; it is further ORDERED that the Discovery Referee’s Fourth Report and Recommendation dated April 30, 2020 is confirmed pursuant to CPLR 4403 to the extent it denied Defendant’s Second Motion for a Protective Order. SO ORDERED. Dated: White Plains, New York ____________, 2020 Hon. Linda S. Jamieson, J.S.C