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. 606 RECEIVED NYSCEF: 07/20/2020
EXHIBIT 3
FILED: WESTCHESTER COUNTY CLERK 07/20/2020 04:40 PM INDEX NO. 60767/2018
NYSCEF DOC. NO. 606 RECEIVED NYSCEF: 07/20/2020
BOlES
SCHILLER
FLEXNER
June 22, 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.)
Mr. Harrington,
Plaintiffs'
I write in further support of request for an in camera review of a
random sample of a portion of the In-House Bonus e-mails collected by HL pursuant
to the Second and Fourth Reports and Recommendations.
HL does not dispute the key facts: HL produced only one of the approximately
parties'
15,000 documents collected using the agreed-upon terms. HL's .006%
production rate justifies an in camera review, particularly given that HL has a
known policy and practice of paying an In-House Bonus; the whistleblower letters
indicate that sales agents and managers communicate about it via e-mail; and the
parties'
search terms were narrowly tailored to target those communications.
terms,"
HL disparages the "quality of the search citing a few hundred
promotion"
"Designer Shoe Warehouse e-mails, yet conspicuously fails to link even
that small percentage of junk results to the only search that is the subject of
Plaintiffs' house" "in-house"
request: ("in OR OR "inhouse") /w5 bonus. Nowhere
does HL explain what is wrong with that search or why none of the more than 1,100
documents it returned relates to the In-House Bonus.
In arguing that this issue has already been addressed, HL ignores that
Plaintiffs'
request concerns HL's possible violation of the Second and Fourth
Reports and Recommendations. HL's non-compliance with the Fourth R&R
could not have been considered before that decision was issued. 1
obviously
1 HL says "the absence of additional from the supplemental review the
files following
surprising"
Fourth R&R is not because it had previously collected "any office-wide
communications."
(emphasis added). That confirms what Plaintiffs said in their opposition
to the Second Motion for a Protective Order-that HL only collected "office-wide
communications," inter-
ey-clusng agent-only and intra-team (and likely firm-wide and
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. 606 RECEIVED NYSCEF: 07/20/2020
BSF
consideration given in the Fourth R&R to HL's non-
Moreover, any
compliance with the Second R&R was not informed by the hit count report that HL
strategically withheld until after its Second Motion for a Protective Order had been
under submission for weeks precisely to prevent Plaintiffs from making the present
argument. Plaintiffs advised in their opposition to the Second Motion for a
Protective Order that the absence of a hit count report left them without sufficient
information to evaluate a production made less than 48 hours before their
opposition was due in a further attempt to compromise their ability to highlight its
deficiencies. See Vest to Harrington, March 6, 2020 at 13. The hit count report and
HL's failure to produce a single e-mail in response to the Fourth R&R raise fresh
questions about HL's possible non-compliance with the Second R&R.
Having already found that Plaintiffs were entitled to a replacement
document custodian for Mr. Gricar, the Fourth R&R declined to provide what it
directive"
considered an "academic discovery despite the exceedingly low production
rate of documents from Mr. Gricar's custodial file. Plaintiffs do not understand that
ruling to mean, contrary to recognized discovery practice, that a low production rate
can never provide a basis to question the adequacy of a production. Indeed, there
would have been little reason for the Second R&R to order HL to produce hit counts
if they could not serve that purpose. See Second R&R at 5.
Finally, Plaintiffs did not request an in camera review in connection with the
Second Motion for a Protective Order, and therefore the present request was not a
proper subject for their proposed counter-order regarding the Fourth R&R which
nevertheless even more broadly preserved their objections to HL's failure to produce
"waiver"
In-House Bonus e-mails. Furthermore, HL's argument again ignores that
Plaintiffs'
request encompasses HL's non-compliance with the Fourth R&R itself.
An in camera review of a relatively small number of e-mails that HL insists
are all junk is a modest request that imposes no burden on the parties while helping
to ensure the reliability of the record on an important issue.
Regards,
/s/
Jeremy Vest
office) communications, even though the Second Report and Recommñdation did not limit
the production of In-House Bonus e-mails to only those with a particular distribution list.
See Vest to Harrington, March 6, 2020 at 14. The Fourth R&R did not address this
important deficieñcy in HL's production. It now more than ever requires attention.
BOIES SCHILLER FLEXNER LLP
333 Main Street,Armonk, NY 10504 | (t) 914 749
8200 | (f) 914 749
8300 | www.bsfllp.com
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. 606 RECEIVED NYSCEF: 07/20/2020 EXHIBIT 3 FILED: WESTCHESTER COUNTY CLERK 07/20/2020 04:40 PM INDEX NO. 60767/2018 NYSCEF DOC. NO. 606 RECEIVED NYSCEF: 07/20/2020 BOlES SCHILLER FLEXNER June 22, 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.) Mr. Harrington, Plaintiffs' I write in further support of request for an in camera review of a random sample of a portion of the In-House Bonus e-mails collected by HL pursuant to the Second and Fourth Reports and Recommendations. HL does not dispute the key facts: HL produced only one of the approximately parties' 15,000 documents collected using the agreed-upon terms. HL's .006% production rate justifies an in camera review, particularly given that HL has a known policy and practice of paying an In-House Bonus; the whistleblower letters indicate that sales agents and managers communicate about it via e-mail; and the parties' search terms were narrowly tailored to target those communications. terms," HL disparages the "quality of the search citing a few hundred promotion" "Designer Shoe Warehouse e-mails, yet conspicuously fails to link even that small percentage of junk results to the only search that is the subject of Plaintiffs' house" "in-house" request: ("in OR OR "inhouse") /w5 bonus. Nowhere does HL explain what is wrong with that search or why none of the more than 1,100 documents it returned relates to the In-House Bonus. In arguing that this issue has already been addressed, HL ignores that Plaintiffs' request concerns HL's possible violation of the Second and Fourth Reports and Recommendations. HL's non-compliance with the Fourth R&R could not have been considered before that decision was issued. 1 obviously 1 HL says "the absence of additional from the supplemental review the files following surprising" Fourth R&R is not because it had previously collected "any office-wide communications." (emphasis added). That confirms what Plaintiffs said in their opposition to the Second Motion for a Protective Order-that HL only collected "office-wide communications," inter- ey-clusng agent-only and intra-team (and likely firm-wide and 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. 606 RECEIVED NYSCEF: 07/20/2020 BSF consideration given in the Fourth R&R to HL's non- Moreover, any compliance with the Second R&R was not informed by the hit count report that HL strategically withheld until after its Second Motion for a Protective Order had been under submission for weeks precisely to prevent Plaintiffs from making the present argument. Plaintiffs advised in their opposition to the Second Motion for a Protective Order that the absence of a hit count report left them without sufficient information to evaluate a production made less than 48 hours before their opposition was due in a further attempt to compromise their ability to highlight its deficiencies. See Vest to Harrington, March 6, 2020 at 13. The hit count report and HL's failure to produce a single e-mail in response to the Fourth R&R raise fresh questions about HL's possible non-compliance with the Second R&R. Having already found that Plaintiffs were entitled to a replacement document custodian for Mr. Gricar, the Fourth R&R declined to provide what it directive" considered an "academic discovery despite the exceedingly low production rate of documents from Mr. Gricar's custodial file. Plaintiffs do not understand that ruling to mean, contrary to recognized discovery practice, that a low production rate can never provide a basis to question the adequacy of a production. Indeed, there would have been little reason for the Second R&R to order HL to produce hit counts if they could not serve that purpose. See Second R&R at 5. Finally, Plaintiffs did not request an in camera review in connection with the Second Motion for a Protective Order, and therefore the present request was not a proper subject for their proposed counter-order regarding the Fourth R&R which nevertheless even more broadly preserved their objections to HL's failure to produce "waiver" In-House Bonus e-mails. Furthermore, HL's argument again ignores that Plaintiffs' request encompasses HL's non-compliance with the Fourth R&R itself. An in camera review of a relatively small number of e-mails that HL insists are all junk is a modest request that imposes no burden on the parties while helping to ensure the reliability of the record on an important issue. Regards, /s/ Jeremy Vest office) communications, even though the Second Report and Recommñdation did not limit the production of In-House Bonus e-mails to only those with a particular distribution list. See Vest to Harrington, March 6, 2020 at 14. The Fourth R&R did not address this important deficieñcy in HL's production. It now more than ever requires attention. BOIES SCHILLER FLEXNER LLP 333 Main Street,Armonk, NY 10504 | (t) 914 749 8200 | (f) 914 749 8300 | www.bsfllp.com