Preview
FILED: WESTCHESTER COUNTY CLERK 05/14/2020 08:55 AM INDEX NO. 60767/2018
NYSCEF DOC. NO. 580 RECEIVED NYSCEF: 05/14/2020
Exhibit 6
FILED: WESTCHESTER COUNTY CLERK 05/14/2020 08:55 AM INDEX NO. 60767/2018
NYSCEF DOC. NO. 580 RECEIVED NYSCEF: 05/14/2020
SUPREME COURT OF THE STATg OF NEW YORK
COUNTY OF WESTCHESTER
PAMELA GOLDSTEIN,
ELLYN & TONY BERK as Administrators
Index No. 60767/2018
of the Estate of Winifred Berk, and PAUL
BENJAMIN, on behalf of themselves and Hon. Linda S. Jamieson
all others similarly situated,
Plaintiffs, THIRD REPORT AND
RECOMMENDATION OF
v. DISCOVERY REFEREE FOR
HOULIHAN/LAWRENCE INC., ISSUANCE OF A COMMISSION
Defendant.
In this putative class action, the parties are engaged in pre-class certification
discovery. Plaintiffs seek an order directing issuance of a Commission to take
discovery pursuant to a Subpoena on James Michael Gricar ("Gricar") on the
grounds that Gricar has information that is material and necessary to this action
and resides in Connecticut.
Mr. Gricar served as General Sales Manager of Houlihan Lawrence Inc.
("HLI") from in or about ,July 2015 through the filing of this action. On ,July 18,
2019, at the first conference with the parties following my appointment as
Discovery Referee, I directed HLI to collect certain documents responsive to
Plaintiffs' document requests from Mr. Gricar's custodial files. On October 22,
2019, during my second discovery conference with the parties, Plaintiffs sought
production from HLI of certain additional documents relating to Mr. Gricar's
employment. I instead instructed Plaintiffs to seek documents from Mr. Gricar.
Mr. Gricar resides in Connecticut, and Plaintiffs therefore seek entry of the
accompanying proposed order for issuance of a Commission to authorize Matthew
FILED: WESTCHESTER COUNTY CLERK 05/14/2020 08:55 AM INDEX NO. 60767/2018
NYSCEF DOC. NO. 580 RECEIVED NYSCEF: 05/14/2020
Tripolitsiotis, an attorney admitted to practice in Connecticut, to serve the
accompanying Subpoena. See the Affirmation of Matthew Tripolitsiotis, dated
January 28, 2020,
Dl.SQUSSION
HLI does not object to the issuance of a Commission to depose Mr. Gricar.
However, HLI does object to the scope of the p1·oposed Gricar Subpoena Duces
Tecum and documents sought by Plaintiffs from Mr. Gricar. HLI argues the
Subpoena Duces Tecum is "overbroad," a "fishing expedition", seeks documents
"already ... produced by [HLI]" and "irrelevant and beyond the scope [of pre-class
certified discovery"] (Feb. 6, 2020 letter, J. Lindenam, Esq.) (p. 1). Without specific
attribution of any of the aforesaid alleged deficiencies to a specific document
request, HLI argues that Request Nos. 1, 3, 5, 6, 7, 8, 13 and 14 "fall within [those]
categories." 1 (Id.) HLI argues that the Gricar Subpoena Duces Tecum should be
limited accordingly.
Plaintiffs disagree. Plaintiffs correctly note that Mr. Gricar is only executive
level document custodian to which they have been given access. I previously denied
any discovery relating to Stephen Meyers and Chris Meyers, who are the historical
principal owners of HLI and its current Chairman and CEO. Plaintiffs further
argue that to date HLI has not provided any substantive discovery relating to Mr.
Gricar and his involvement, if any, as an HLI executive in the genesis, formation
HLI does not object to Requests 2, 4, 9, 10, 11 and 12.
2
FILED: WESTCHESTER COUNTY CLERK 05/14/2020 08:55 AM INDEX NO. 60767/2018
NYSCEF DOC. NO. 580 RECEIVED NYSCEF: 05/14/2020
and implementation of HLI's dual agency policies which are the subject of this
litigation.
In effect, pursuant to CPI.,R 3103, HLI seeks a protective order with respect
to certain document demands in the Subpoena Duces Tecum. The standards for
pre-class certification discovery and a protective order regarding same are well
settled and need not be repeated here.
HLI did not address the specific alleged flaws in the document requests to
which it objects. Therefore, I shall do so.
Request 1 seeks:
All documents relating to this Action (see the allegations set forth in the
Third Amended Class Action Complaint (Dkt. 557) attached hereto as
Exhibit A), including (a) listing or marketing presentations; and (b) scripts,
talking points, or guidelines relating any other Nc)W York agency disclosure
requirement, including disclosures required under New York Real Property
Law Section 443.
The Request is proper. Plaintiffs are entitled to documents in Mr. Gricar's
possession, custody or control relating to HLI's dual agency disclosure policies and
actions, if any, including (a) listing or marketing presentations and (b) scripts,
talking points or guidelines relating to dual agency listings and/or Real Property
I,aw Section 443.
Request 3 seeks:
All documents relating to Houlihan Lawrence's payment of compensation to
its agents for meeting monthly, quarterly, or annual sales or revenue goals,
whether in the form of a commission, bonus, reward, incentive, higher sales
commission split, or other payment.
3
FILED: WESTCHESTER COUNTY CLERK 05/14/2020 08:55 AM INDEX NO. 60767/2018
NYSCEF DOC. NO. 580 RECEIVED NYSCEF: 05/14/2020
This Request is proper. Plaintiffs are entitled to the requested HLI
compensation information to the extent it relates to creation, implementation and
enforcement of policies or guidelines governing dual agency sales by HLI's sales
force. This includes HLI policies and practices compensation reflecting dual agency
sales, as well as documents concerning compensation received by Mr. Gricar.
Request 5 seeks:
All documents relating to any New York agency disclosure requirement,
including disclosures required under New York Real Property Law Section
443.
Plaintiffs are entitled to this information as it specifically relates to HLI's
dual agency policies at issue.
Request 6 seeks:
All documents relating to Dual Agent Transactions.
This Request is overbroad. It would arguably require Mr. Griem· to produce
voluminous transactional information which has no relevance to the issues at bar.
Information relevant to HLI's dual agency practices and policies are subsumed in
the other Requests found in the Subpoena Duces Tecum.
Request 7 seeks:
All Houlihan Lawrence policies, procedures, operations guidelines, training
materials, and employee handbooks from January 1, 2009 to the present.
Plaintiffs are entitled to the requested information. Given the Plaintiffs'
theory on the case, the absence or inclusion of a dual agency policy in HLI policies,
procedures, training material and handbooks is relevant. Mr. Gricar can be
4
FILED: WESTCHESTER COUNTY CLERK 05/14/2020 08:55 AM INDEX NO. 60767/2018
NYSCEF DOC. NO. 580 RECEIVED NYSCEF: 05/14/2020
compelled to produce the 1·equosted categories of documents to the extent they
relate to dual agency transactions.
Request 8 seeks:
All documents 1·elati11g to Houlihan Lawrence's "Disclosure and Prompt Sheet
for Sales Agents" and other scripts, talking points, or training materials
given to sales agents.
This Request is proper.
Request 13 i:;eeks:
All documents relating to Houlihan Lawrence's policies, procedures,
protocols, and practices regarding Pocket Listings.
This Request is proper.
Request 14 seeks:
All documents relating to Houlihan Lawrence's policies, procedures,
protocols, and practices regarding In Crowd.
HLI's Request is proper. The In Crowd database is reasonably calculated to
the discovery of information relevant to the claims raised in this litigation.
HLI's argument that Mr. Gricar will be prejudiced by the Subpoena is
without merit. Ignoring the issue of HLI's standing to assert this argument, Mr.
Gricar is certainly free (individually or through counsel) to assert whatever
objections he deems appropriate.
5
FILED: WESTCHESTER COUNTY CLERK 05/14/2020 08:55 AM INDEX NO. 60767/2018
NYSCEF DOC. NO. 580 RECEIVED NYSCEF: 05/14/2020
CONCLUSION
I respectfully report and recommend that the Court enter the accompanying
(i) proposed order directing issuance of a Commission to Serve a Subpoena on
James Michael Gricar and (ii)Commission to Serve a Subpoena and Subpoena
Duces Tecum on James Michael Gricar in Connecticut. Copies are attached hereto
as Exhibit A.
Dated: White Plains, New York
February 21, 2020
illiam P. Harr ngton, E~q.
Discovery Referee
TO: All Counsel via NYSECF
6
Preview
FILED: WESTCHESTER COUNTY CLERK 05/14/2020 08:55 AM INDEX NO. 60767/2018 NYSCEF DOC. NO. 580 RECEIVED NYSCEF: 05/14/2020 Exhibit 6 FILED: WESTCHESTER COUNTY CLERK 05/14/2020 08:55 AM INDEX NO. 60767/2018 NYSCEF DOC. NO. 580 RECEIVED NYSCEF: 05/14/2020 SUPREME COURT OF THE STATg OF NEW YORK COUNTY OF WESTCHESTER PAMELA GOLDSTEIN, ELLYN & TONY BERK as Administrators Index No. 60767/2018 of the Estate of Winifred Berk, and PAUL BENJAMIN, on behalf of themselves and Hon. Linda S. Jamieson all others similarly situated, Plaintiffs, THIRD REPORT AND RECOMMENDATION OF v. DISCOVERY REFEREE FOR HOULIHAN/LAWRENCE INC., ISSUANCE OF A COMMISSION Defendant. In this putative class action, the parties are engaged in pre-class certification discovery. Plaintiffs seek an order directing issuance of a Commission to take discovery pursuant to a Subpoena on James Michael Gricar ("Gricar") on the grounds that Gricar has information that is material and necessary to this action and resides in Connecticut. Mr. Gricar served as General Sales Manager of Houlihan Lawrence Inc. ("HLI") from in or about ,July 2015 through the filing of this action. On ,July 18, 2019, at the first conference with the parties following my appointment as Discovery Referee, I directed HLI to collect certain documents responsive to Plaintiffs' document requests from Mr. Gricar's custodial files. On October 22, 2019, during my second discovery conference with the parties, Plaintiffs sought production from HLI of certain additional documents relating to Mr. Gricar's employment. I instead instructed Plaintiffs to seek documents from Mr. Gricar. Mr. Gricar resides in Connecticut, and Plaintiffs therefore seek entry of the accompanying proposed order for issuance of a Commission to authorize Matthew FILED: WESTCHESTER COUNTY CLERK 05/14/2020 08:55 AM INDEX NO. 60767/2018 NYSCEF DOC. NO. 580 RECEIVED NYSCEF: 05/14/2020 Tripolitsiotis, an attorney admitted to practice in Connecticut, to serve the accompanying Subpoena. See the Affirmation of Matthew Tripolitsiotis, dated January 28, 2020, Dl.SQUSSION HLI does not object to the issuance of a Commission to depose Mr. Gricar. However, HLI does object to the scope of the p1·oposed Gricar Subpoena Duces Tecum and documents sought by Plaintiffs from Mr. Gricar. HLI argues the Subpoena Duces Tecum is "overbroad," a "fishing expedition", seeks documents "already ... produced by [HLI]" and "irrelevant and beyond the scope [of pre-class certified discovery"] (Feb. 6, 2020 letter, J. Lindenam, Esq.) (p. 1). Without specific attribution of any of the aforesaid alleged deficiencies to a specific document request, HLI argues that Request Nos. 1, 3, 5, 6, 7, 8, 13 and 14 "fall within [those] categories." 1 (Id.) HLI argues that the Gricar Subpoena Duces Tecum should be limited accordingly. Plaintiffs disagree. Plaintiffs correctly note that Mr. Gricar is only executive level document custodian to which they have been given access. I previously denied any discovery relating to Stephen Meyers and Chris Meyers, who are the historical principal owners of HLI and its current Chairman and CEO. Plaintiffs further argue that to date HLI has not provided any substantive discovery relating to Mr. Gricar and his involvement, if any, as an HLI executive in the genesis, formation HLI does not object to Requests 2, 4, 9, 10, 11 and 12. 2 FILED: WESTCHESTER COUNTY CLERK 05/14/2020 08:55 AM INDEX NO. 60767/2018 NYSCEF DOC. NO. 580 RECEIVED NYSCEF: 05/14/2020 and implementation of HLI's dual agency policies which are the subject of this litigation. In effect, pursuant to CPI.,R 3103, HLI seeks a protective order with respect to certain document demands in the Subpoena Duces Tecum. The standards for pre-class certification discovery and a protective order regarding same are well settled and need not be repeated here. HLI did not address the specific alleged flaws in the document requests to which it objects. Therefore, I shall do so. Request 1 seeks: All documents relating to this Action (see the allegations set forth in the Third Amended Class Action Complaint (Dkt. 557) attached hereto as Exhibit A), including (a) listing or marketing presentations; and (b) scripts, talking points, or guidelines relating any other Nc)W York agency disclosure requirement, including disclosures required under New York Real Property Law Section 443. The Request is proper. Plaintiffs are entitled to documents in Mr. Gricar's possession, custody or control relating to HLI's dual agency disclosure policies and actions, if any, including (a) listing or marketing presentations and (b) scripts, talking points or guidelines relating to dual agency listings and/or Real Property I,aw Section 443. Request 3 seeks: All documents relating to Houlihan Lawrence's payment of compensation to its agents for meeting monthly, quarterly, or annual sales or revenue goals, whether in the form of a commission, bonus, reward, incentive, higher sales commission split, or other payment. 3 FILED: WESTCHESTER COUNTY CLERK 05/14/2020 08:55 AM INDEX NO. 60767/2018 NYSCEF DOC. NO. 580 RECEIVED NYSCEF: 05/14/2020 This Request is proper. Plaintiffs are entitled to the requested HLI compensation information to the extent it relates to creation, implementation and enforcement of policies or guidelines governing dual agency sales by HLI's sales force. This includes HLI policies and practices compensation reflecting dual agency sales, as well as documents concerning compensation received by Mr. Gricar. Request 5 seeks: All documents relating to any New York agency disclosure requirement, including disclosures required under New York Real Property Law Section 443. Plaintiffs are entitled to this information as it specifically relates to HLI's dual agency policies at issue. Request 6 seeks: All documents relating to Dual Agent Transactions. This Request is overbroad. It would arguably require Mr. Griem· to produce voluminous transactional information which has no relevance to the issues at bar. Information relevant to HLI's dual agency practices and policies are subsumed in the other Requests found in the Subpoena Duces Tecum. Request 7 seeks: All Houlihan Lawrence policies, procedures, operations guidelines, training materials, and employee handbooks from January 1, 2009 to the present. Plaintiffs are entitled to the requested information. Given the Plaintiffs' theory on the case, the absence or inclusion of a dual agency policy in HLI policies, procedures, training material and handbooks is relevant. Mr. Gricar can be 4 FILED: WESTCHESTER COUNTY CLERK 05/14/2020 08:55 AM INDEX NO. 60767/2018 NYSCEF DOC. NO. 580 RECEIVED NYSCEF: 05/14/2020 compelled to produce the 1·equosted categories of documents to the extent they relate to dual agency transactions. Request 8 seeks: All documents 1·elati11g to Houlihan Lawrence's "Disclosure and Prompt Sheet for Sales Agents" and other scripts, talking points, or training materials given to sales agents. This Request is proper. Request 13 i:;eeks: All documents relating to Houlihan Lawrence's policies, procedures, protocols, and practices regarding Pocket Listings. This Request is proper. Request 14 seeks: All documents relating to Houlihan Lawrence's policies, procedures, protocols, and practices regarding In Crowd. HLI's Request is proper. The In Crowd database is reasonably calculated to the discovery of information relevant to the claims raised in this litigation. HLI's argument that Mr. Gricar will be prejudiced by the Subpoena is without merit. Ignoring the issue of HLI's standing to assert this argument, Mr. Gricar is certainly free (individually or through counsel) to assert whatever objections he deems appropriate. 5 FILED: WESTCHESTER COUNTY CLERK 05/14/2020 08:55 AM INDEX NO. 60767/2018 NYSCEF DOC. NO. 580 RECEIVED NYSCEF: 05/14/2020 CONCLUSION I respectfully report and recommend that the Court enter the accompanying (i) proposed order directing issuance of a Commission to Serve a Subpoena on James Michael Gricar and (ii)Commission to Serve a Subpoena and Subpoena Duces Tecum on James Michael Gricar in Connecticut. Copies are attached hereto as Exhibit A. Dated: White Plains, New York February 21, 2020 illiam P. Harr ngton, E~q. Discovery Referee TO: All Counsel via NYSECF 6