On July 14, 2018 a
Exhibit,Appendix
was filed
involving a dispute between
Ellyn Berk,
Pamela Goldstein,
Paul Benjamin,
Tony Berk,
and
Houlihan Lawrence Inc.,
for Commercial Division
in the District Court of Westchester County.
Preview
FILED: WESTCHESTER COUNTY CLERK 07/20/2020 04:40 PM INDEX NO. 60767/2018
NYSCEF DOC. NO. 604 RECEIVED NYSCEF: 07/20/2020
EXHIBIT1
FILED: WESTCHESTER COUNTY CLERK 07/20/2020 04:40 PM INDEX NO. 60767/2018
NYSCEF DOC. NO. 604 RECEIVED NYSCEF: 07/20/2020
BOlES
SCHILLER
FLEXNER
June 10, 2020
Via E-Mail
Mr. William P. Harrington
Bleakley Platt & Schmidt, LLP
One North Lexington Avenue
White Plains, NY 10601
Re: Goldstein et al. v. Houlihan/Lawrence Inc.,
No. 60767/2018 (N.Y. Sup. Ct., Westchester Cty.)
Dear Mr. Harrington:
I write to request that you randomly select for in camera review a small
portion of the more than 15,000 documents that Houlihan Lawrence ("HL")
collected pursuant to the Second and Fourth Reports and Recommendations
using search terms designed to capture documents relating to its In-House
Bonus program. HL has produced only one of those documents (.006%) even
though they were collected using narrowly tailored search terms designed in
conjunction with HL to filter out false positives.
HL's policy manual expressly provides for payment of an In-House
Bonus for qualifying dual-agent transactions:
When Houlihan Lawrence is on both the list side and sale
side of a transaction with a minimum of a 5% commission,
a 10% in-house bonus will be paid on each side. (HL 1688
at 1711)
Three anonymous sources separately confirmed the In-House Bonus as well.
Accordingly, the Second Report and Recommendation ordered HL to
produce any e-mail from its Scarsdale, Bronxville, and White Plains offices
'bonus' program."
"regarding any HLI institutional dual agency (Second R&R
at 5). As recognized in the Fourth Report and Recommandation, these e-mails
are "relevant to establishing HLI's alleged pervasive, institutionally promoted
practice."
dual agency (Fourth R&R at 12).
BOIES SCHILLER FLEXNER LLP
333 Main Street,Armonk, NY 10504 | (t) 914 749
8200 | (f) 914 749
8300 | www.bsfllp.com
FILED: WESTCHESTER COUNTY CLERK 07/20/2020 04:40 PM INDEX NO. 60767/2018
NYSCEF DOC. NO. 604 RECEIVED NYSCEF: 07/20/2020
BSF
Plaintiffs'
On March 4, less than two days before opposition to HL's
Second Motion for a Protective Order was due, HL made its much-anticipated
production of In-House Bonus e-mails, which consisted of only a single e-mail:
Why not show and sell it? So easy to show. In-House
bonus! (HL 66545)
Incredulous that no other e-mail related to the In-House Bonus, the next
day, on March 5, Plaintiffs requested that HL immediately provide a hit count
report so that Plaintiffs could evaluate HL's production in connection with its
March 6 opposition to the Second Motion for a Protective Order.
HL had completed its collection of In-House Bonus e-mails before it filed
its Second Motion for a Protective Order on February 20. See Mot. at 7
("Houlihan has now collected documents from the agents involved in the
sample transactions for the three offices identified based on the search terms
Plaintiffs proposed."). Yet it strategically delayed until April 7, weeks after its
motion was fully submitted, to provide the requested hit count report, which
Plaintiffs'
shows that HL collected more than 9,000 documents using proposed
house"
search terms, including 1,100 that use variations on "in within only five
words of "bonus":
sides" dual*
("both OR OR designat*) w/5 1,036 478
I bonus
("In-house" house" f
or "in or "inhouse")w/5 2,756 1,100
bonus
(get* earn* pocket*
OR OR OR w/5
collect*) 10,766 7,485
card"
bonus and NOT (airlineor "credit or
hotel)
IHB 138 101
|
Plaintiffs'
As shown in the third row above, proposed terms specifically
"airline" card" "hotel"
excluded documents containing or "credit or to eliminate
junk results.
Last week, HL said that it collected another 6,000 documents in
response to the Fourth Report and Recommendation, which directed HL to
expand its collection beyond the 69 HL sales agents involved in the sample
transactions. (Fourth R&R at 11). It also confirmed that it withheld all 6,000
of those documents: "There were no additional responsive emails generated by
custodians."
the additional (E-mail from J. Lindemann to J. Vest, June 2,
2020).
2
FILED: WESTCHESTER COUNTY CLERK 07/20/2020 04:40 PM INDEX NO. 60767/2018
NYSCEF DOC. NO. 604 RECEIVED NYSCEF: 07/20/2020
BSF
It beggars belief that only one of the more than 15,000 documents
collected HL In-House Bonus search terms references the In-
by using actually
House Bonus. Plaintiffs request that you (1) direct HL to submit all documents
house" "bonus"
collected using variations on "in within five words of for in
camera review; and then (2) review a random sample of those documents to
determine whether HL is improperly withholding any documents "regarding
'bonus' program."
any HLI institutional dual agency (Second R&R at 5).
HL has already shown that it intends to use the purported nhaance of
documents relating to the In-House Bonus as affirmative evidence that "the
Plaintiffs' overblown."
anonymous letters (much like counsel) were (Reply ISO
of Second Motion at 5). A targeted in camera review is a necessary and simple
way to ensure the integrity of the record on this important issue.
Respectfully,
Isl
Jeremy Vest
cc: Counsel for Defendant (via e-mail)
3
Document Filed Date
July 20, 2020
Case Filing Date
July 14, 2018
Category
Commercial Division
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FILED: WESTCHESTER COUNTY CLERK 07/20/2020 04:40 PM INDEX NO. 60767/2018 NYSCEF DOC. NO. 604 RECEIVED NYSCEF: 07/20/2020 EXHIBIT1 FILED: WESTCHESTER COUNTY CLERK 07/20/2020 04:40 PM INDEX NO. 60767/2018 NYSCEF DOC. NO. 604 RECEIVED NYSCEF: 07/20/2020 BOlES SCHILLER FLEXNER June 10, 2020 Via E-Mail Mr. William P. Harrington Bleakley Platt & Schmidt, LLP One North Lexington Avenue White Plains, NY 10601 Re: Goldstein et al. v. Houlihan/Lawrence Inc., No. 60767/2018 (N.Y. Sup. Ct., Westchester Cty.) Dear Mr. Harrington: I write to request that you randomly select for in camera review a small portion of the more than 15,000 documents that Houlihan Lawrence ("HL") collected pursuant to the Second and Fourth Reports and Recommendations using search terms designed to capture documents relating to its In-House Bonus program. HL has produced only one of those documents (.006%) even though they were collected using narrowly tailored search terms designed in conjunction with HL to filter out false positives. HL's policy manual expressly provides for payment of an In-House Bonus for qualifying dual-agent transactions: When Houlihan Lawrence is on both the list side and sale side of a transaction with a minimum of a 5% commission, a 10% in-house bonus will be paid on each side. (HL 1688 at 1711) Three anonymous sources separately confirmed the In-House Bonus as well. Accordingly, the Second Report and Recommendation ordered HL to produce any e-mail from its Scarsdale, Bronxville, and White Plains offices 'bonus' program." "regarding any HLI institutional dual agency (Second R&R at 5). As recognized in the Fourth Report and Recommandation, these e-mails are "relevant to establishing HLI's alleged pervasive, institutionally promoted practice." dual agency (Fourth R&R at 12). BOIES SCHILLER FLEXNER LLP 333 Main Street,Armonk, NY 10504 | (t) 914 749 8200 | (f) 914 749 8300 | www.bsfllp.com FILED: WESTCHESTER COUNTY CLERK 07/20/2020 04:40 PM INDEX NO. 60767/2018 NYSCEF DOC. NO. 604 RECEIVED NYSCEF: 07/20/2020 BSF Plaintiffs' On March 4, less than two days before opposition to HL's Second Motion for a Protective Order was due, HL made its much-anticipated production of In-House Bonus e-mails, which consisted of only a single e-mail: Why not show and sell it? So easy to show. In-House bonus! (HL 66545) Incredulous that no other e-mail related to the In-House Bonus, the next day, on March 5, Plaintiffs requested that HL immediately provide a hit count report so that Plaintiffs could evaluate HL's production in connection with its March 6 opposition to the Second Motion for a Protective Order. HL had completed its collection of In-House Bonus e-mails before it filed its Second Motion for a Protective Order on February 20. See Mot. at 7 ("Houlihan has now collected documents from the agents involved in the sample transactions for the three offices identified based on the search terms Plaintiffs proposed."). Yet it strategically delayed until April 7, weeks after its motion was fully submitted, to provide the requested hit count report, which Plaintiffs' shows that HL collected more than 9,000 documents using proposed house" search terms, including 1,100 that use variations on "in within only five words of "bonus": sides" dual* ("both OR OR designat*) w/5 1,036 478 I bonus ("In-house" house" f or "in or "inhouse")w/5 2,756 1,100 bonus (get* earn* pocket* OR OR OR w/5 collect*) 10,766 7,485 card" bonus and NOT (airlineor "credit or hotel) IHB 138 101 | Plaintiffs' As shown in the third row above, proposed terms specifically "airline" card" "hotel" excluded documents containing or "credit or to eliminate junk results. Last week, HL said that it collected another 6,000 documents in response to the Fourth Report and Recommendation, which directed HL to expand its collection beyond the 69 HL sales agents involved in the sample transactions. (Fourth R&R at 11). It also confirmed that it withheld all 6,000 of those documents: "There were no additional responsive emails generated by custodians." the additional (E-mail from J. Lindemann to J. Vest, June 2, 2020). 2 FILED: WESTCHESTER COUNTY CLERK 07/20/2020 04:40 PM INDEX NO. 60767/2018 NYSCEF DOC. NO. 604 RECEIVED NYSCEF: 07/20/2020 BSF It beggars belief that only one of the more than 15,000 documents collected HL In-House Bonus search terms references the In- by using actually House Bonus. Plaintiffs request that you (1) direct HL to submit all documents house" "bonus" collected using variations on "in within five words of for in camera review; and then (2) review a random sample of those documents to determine whether HL is improperly withholding any documents "regarding 'bonus' program." any HLI institutional dual agency (Second R&R at 5). HL has already shown that it intends to use the purported nhaance of documents relating to the In-House Bonus as affirmative evidence that "the Plaintiffs' overblown." anonymous letters (much like counsel) were (Reply ISO of Second Motion at 5). A targeted in camera review is a necessary and simple way to ensure the integrity of the record on this important issue. Respectfully, Isl Jeremy Vest cc: Counsel for Defendant (via e-mail) 3