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FILED: WESTCHESTER COUNTY CLERK 10/13/2020 11:34 AM INDEX NO. 60767/2018
NYSCEF DOC. NO. 634 RECEIVED NYSCEF: 10/13/2020
EXHIBIT A
FILED: WESTCHESTER COUNTY CLERK 10/02/2020
10/13/2020 04:40
11:34 PM
AM INDEX NO. 60767/2018
NYSCEF DOC. NO. 627
634 RECEIVED NYSCEF: 10/02/2020
10/13/2020
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF WESTCHESTER
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PAMELA GOLDSTEIN, ELLYN & TONY BERK,
as Administrators of the Estate of Winifred Berk,
and PAUL BENJAMIN, on behalf of themselves
and all other similarly situated, Index No. 60767/2018
Plaintiffs,
Hon. Linda S. Jamieson
-against-
HOULIHAN/LAWREN CE INC.,
Defendant.
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SEVENTH REPORT AND RECOMMENDATION
OP DISCOVERY REFEREE
The Fourth and Fifth Reports and Recommendations ("R&R") directed the parties to
perform certain tasks and the defendant to produce additional discovery in an effort to complete
pre-class certification discovery, thereby setting the stage for a class certification motion.
Unfortunately, discovery disputes remain and, in some instances, have metastasized.
Thus, this Seventh Report and Recommendation ("Seventh R&R").
By letter dated August 26, 2020, plaintiffs' counsel raised various issues regarding the
alleged inadequacies of defendant's discovery responses and compliance with the Fourth and
Fifth R&Rs. (Ex. 1.) Defendant responded by letter dated August 27, 2020. (Ex. 2.) Plaintiffs
replied by letter dated September 8, 2020. (Ex. 3.) On September 11, 2020, oral argument on
the issues was conducted via a 90-minute conference call. During the oral argument I requested
certain information from plaintiffs' counsel which was provided by email dated September 14,
2020 (Ex. 4). I also encouraged the parties to meet and confer to resolve some or all of the
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outstanding discovery disputes. The meet and confer was not successful. Plaintiffs submitted
additional arguments via letter dated September 17, 2020. (Ex. 5.)
DISCUSSION
My analysis is based upon the well-settled standard of proportionality in pre-class
certification discovery, the elements required for class certification under CPLR 901 and the
issue of HLI' s alleged pervasive institutional promotion and implementation of its dual agency
In-House Bonus Program. I have discussed each at length in prior Reports and
Recommendations and will not repeat them here.
In effect, plaintiffs argue defendant is not to be trusted; that prior discovery responses
have been so grossly inadequate that plaintiffs have been blunted from any meaningful necessary
discovery. Defendant denies any misconduct and points to the numerous discovery responses
provided and tens of thousands of documents produced to date. I will address each outstanding
discovery issue seriatim.
1. In-House Bonus Emails
The Fifth R&R required the defendant to produce for in camera review a subset of In-
House Bonus emails consisting of 3,090 documents. At oral argument plaintiffs' objections
regarding the limited scope of that document subset were resolved. I conducted an in camera
review and issued a Sixth R&R addressing and ordering the production of these documents.
Plaintiffs now request the production of all "13,215 In-House Emails and their attachments."
(Ex. 5, p. 2.) Stated another way, plaintiffs now seek production of the remaining balance of
approximately 10,000 In-House Bonus emails.
Based upon my in camera review, I found the proffered document subset to contain
relevant documents. I see no legal, logical or equitable basis to change that determination with
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respect to the balance of the In-House Bonus emails. Therefore, the defendant should produce
the balance of these emails in accord with the terms of the Fifth R&R.
2. In-Crowd Database
The Fourth R&R directed HLI to produce documents from its In-Crowd database
responsive to six search terms provided by plaintiffs. The parties concede the In-Crowd database
is difficult to search electronically because, in layman's terms, it contains both "structured" and
"unstructured" documents. "Structured" documents are emails and electronic posts which are
searchable electronically. "Unstructured" documents are attachments to such emails or posts.
These cannot be searched electronically. Rather, they require a linear (i.e. manual) document
review.
In an effort to address these issues, the Fourth R&R directed the parties' technology
consultants to meet to ascertain a methodology for document production. The consultants met
with legal counsel. Different options were discussed. Email exchanges reflect some progress
was made. However, the process ultimately failed when Konverse, the defendant's third-party
computer vendor, withdrew because it was "overwhelmed by plaintiffs' 101 search terms" and
related challenges arising from the COVID pandemic. Konverse transferred the database to
defendant's counsel. Through the aid of another outside vendor, defendant ran the search of the
39,221 documents contained in the In-Crowd database against plaintiffs' six (or 101) search
terms (infra., p. 4). Defendant asserts the search terms hit only 202 documents (0.5% hit rate),
which were produced.
Plaintiffs argue, yet again, that the small hit rate is prima facie proof the defendant's
search was improper and speculates that the search process could have been compromised by the
transfer of data from Konverse to defendant's counsel. Defendant responds that the search was
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proper, that the low hit rate is a function of poor search terms and that plaintiffs are judicially
estopped from asserting new terms.
Plaintiffs' also argue that prior to Konverse's departure the parties had negotiated a
protocol for the collection of structured and unstructured documents. 1 Defendant denies there
was any such agreement. Defendant argues that Konverse, the third-party vendor, controls the
data, not defendant. Plaintiffs logically question this argument but pivot and now request that if
this is correct, plaintiffs be permitted to seek the In-Crowd database via third-party subpoena.
This vexing issue has existed for almost a year and has been the subject of three R&Rs,
all approved by the Court. There is no need to address if plaintiff exceeded its search terms since
defendant ran all of those terms in its search. As such, the issue of judicial estoppel is
inapplicable, as is the issue of Konverse's alleged ownership and control of the data.
Based upon the parties' submissions, I have no basis to question if the 202 documents
produced by defendant constitute a good faith search. The small number of documents (202) is
not dispositive. Moreover, this is pre-class certification discovery governed by a proportionality
standard. Based upon plaintiffs' own assertions regarding the importance of the various
categories of the universe of documents involved in this case, they have received (and will
receive via this Report if confirmed) ample appropriate discovery from key document categories
to move for class certification. The burden upon defendant to conduct yet another search and the
attendant delay is not warranted under these circumstances. It may well be that documents
relevant to plaintiffs' two remaining claims are contained in the In-Crowd database. If class
Defendant asserts that plaintiffs six search terms (allotted by the Fourth R&R) were actually 101 if you
include plaintiffs' "limiters" to each search term.
Plaintiffs disagree.This is an academic and irrelevant distraction
since defendant ultimately searched the alleged 101 terms.
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certification is granted, plaintiffs will have the opportunity to seek such discovery. Therefore,
plaintiffs' request for additional discovery from the In-Crowd database should be denied.
3. Corporate Shared Drive
This dispute arises from plaintiffs' desire to "unzip" zip drives which are attachments to
files identified and produced by defendant pursuant to the Fourth R&R. In compliance with the
Fourth R&R, on July 27, 2020 plaintiffs' counsel identified desired files from HLI's Corporate
Shared Drive. In that request plaintiffs' counsel requested 3,870 computer files for linear
(manual) review. Thirteen of those files were zip files - "unstructured" attachments to the file
documents.
Defendant opened the 13 zip files and subjected them to the six (or 101) search terms
provided by plaintiffs, resulting in the production of 202 documents. Plaintiffs now request a
linear review of all the zip files, which consists of 22,227 documents. Plaintiffs' request for a
"second culling mechanism" to compel HLI to manually search for and review over 22,000
documents is neither reasonable, appropriate nor necessary given the pre-class certification status
of this matter. Citing the proportionality standard governing pre-class certification discovery,
HLI objects on the basis of cost, relevance and futility. For the reasons set forth above, further
discovery is not warranted for plaintiffs to conduct appropriate depositions and move for class
certification.
Therefore, I recommend plaintiffs' request for additional discovery of HLI's Corporate
Shared Drive be denied. 2
2
Plaintiffs suggested alternative supplemental production a supplemental HLI corporate shared drive
report containing 500 files -is equally inappropriate under the proportionality standard.
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4. Deborah Dalton Documents
Deborah Dalton is one of the HLI executive level document custodians designated by
plaintiffs. HLI produced 151 of the 6,756 documents from Ms. Dalton's custodial file based
upon plaintiffs' search terms. 3 This is a 2% hit rate. However, this category of documents is
very different than the In-Crowd or Corporate Drive generic databases.
Given Dalton's executive status and designation as a document custodial witness,
plaintiffs are entitled to a more fulsome production of her custodial file. The 6,756 documents
are readily available and searchable. Therefore, they should be produced.
I note that some Dalton documents were contained in the In-House Bonus emails that
were the subject of in camera review of the In-House Bonus emails which defendant asserted
were irrelevant. Any concerns regarding privilege or confidentiality can or have been addressed
without my further involvement. HLI's privilege log already identifies certain Dalton documents
as privileged. Any confidentiality concerns can be address by the standing Confidentiality
Order.
However, if the foregoing does not alleviate defendant's concerns regarding privilege or
confidentiality, it has the option of submitting the Dalton documents to me for in camera review
which I would conduct using the same protocol as used for the In-House Bonus emails. In
offering this option, I am very cognizant of the cost and delay associated with such a review.
Therefore, within two business days of the confirmation of this Report and Recommendation,
defendant shall advise me of its choice between in camera review or direct production to
plaintiffs of the 6,756 Dalton documents.
HLI could not locate two-thirds of the custodial files of James Gricar, the other HLI executive and
designated document custodian. As a result, plaintiffs have not received full discovery from document custodial
witnesses.
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5. Categorical Privilege Log
Plaintiffs challenge HLI's privilege log because it categorically (without document
specificity) designates as privileged, among other things, documents relating to (1) HLI's "huge
change" in its dual agency policy in the Spring of2015 and (2) a 2018 New York State
Department of State agency disclosure audit of HLI. HLI' s privilege log merely categorically
refers to documents that appear to relate to these two events. HLI's privilege log is inadequate
as it relates to these two matters. These events directly concern the HLI In-House Dual Agency
policies and programs which are the subject of this litigation. Therefore, non privileged
documents relating to these matters are clearly relevant and should be produced. Therefore, as I
indicated during oral argument, the documents designated as privileged on HLI's privilege
relating to the New York State audit and 2018 dual agency policy change should be submitted to
me for in camera review with five business days of the Court's confirmation of this Report and
Recommendation.
6. Depositions
HLI has noticed its own employees depositions in the apparent effort to depose these
witnesses before plaintiffs have received complete document disclosure. There is nothing in the
CPLR that precludes HLI's counsel from deposing their own employees. However, they do so at
their peril. As I have reiterated repeatedly, plaintiffs will not be prohibited from re-noticing
those same witnesses after pre-class certification document discovery is completed. Since such
discovery has clearly not been completed, plaintiffs are entitled to depose these HLI witnesses in
the future.
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7. Class Certification Motion
Both parties seek to set a schedule for the filings of a class certification motion. This is a
moving target given the ongoing discovery disputes. However, I invite the parties to meet and
confer regarding such a schedule in light of this Report and Recommendation. If an agreement
can be reached, I will gladly recommend the Court confirm same.
CONCLUSION
I respectfully report and recommend that the Court confirm and adopt the aforesaid
discovery rulings.
Dated: White Plains, New York
October 2, 2020
William P. Harring on, Esq.
Discovery Referee
TO: All Counsel via NYSECF
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Preview
FILED: WESTCHESTER COUNTY CLERK 10/13/2020 11:34 AM INDEX NO. 60767/2018 NYSCEF DOC. NO. 634 RECEIVED NYSCEF: 10/13/2020 EXHIBIT A FILED: WESTCHESTER COUNTY CLERK 10/02/2020 10/13/2020 04:40 11:34 PM AM INDEX NO. 60767/2018 NYSCEF DOC. NO. 627 634 RECEIVED NYSCEF: 10/02/2020 10/13/2020 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 and all other similarly situated, Index No. 60767/2018 Plaintiffs, Hon. Linda S. Jamieson -against- HOULIHAN/LAWREN CE INC., Defendant. ----------------------------------------------------------------X SEVENTH REPORT AND RECOMMENDATION OP DISCOVERY REFEREE The Fourth and Fifth Reports and Recommendations ("R&R") directed the parties to perform certain tasks and the defendant to produce additional discovery in an effort to complete pre-class certification discovery, thereby setting the stage for a class certification motion. Unfortunately, discovery disputes remain and, in some instances, have metastasized. Thus, this Seventh Report and Recommendation ("Seventh R&R"). By letter dated August 26, 2020, plaintiffs' counsel raised various issues regarding the alleged inadequacies of defendant's discovery responses and compliance with the Fourth and Fifth R&Rs. (Ex. 1.) Defendant responded by letter dated August 27, 2020. (Ex. 2.) Plaintiffs replied by letter dated September 8, 2020. (Ex. 3.) On September 11, 2020, oral argument on the issues was conducted via a 90-minute conference call. During the oral argument I requested certain information from plaintiffs' counsel which was provided by email dated September 14, 2020 (Ex. 4). I also encouraged the parties to meet and confer to resolve some or all of the 1 of 8 FILED: WESTCHESTER COUNTY CLERK 10/02/2020 10/13/2020 04:40 11:34 PM AM INDEX NO. 60767/2018 NYSCEF DOC. NO. 627 634 RECEIVED NYSCEF: 10/02/2020 10/13/2020 outstanding discovery disputes. The meet and confer was not successful. Plaintiffs submitted additional arguments via letter dated September 17, 2020. (Ex. 5.) DISCUSSION My analysis is based upon the well-settled standard of proportionality in pre-class certification discovery, the elements required for class certification under CPLR 901 and the issue of HLI' s alleged pervasive institutional promotion and implementation of its dual agency In-House Bonus Program. I have discussed each at length in prior Reports and Recommendations and will not repeat them here. In effect, plaintiffs argue defendant is not to be trusted; that prior discovery responses have been so grossly inadequate that plaintiffs have been blunted from any meaningful necessary discovery. Defendant denies any misconduct and points to the numerous discovery responses provided and tens of thousands of documents produced to date. I will address each outstanding discovery issue seriatim. 1. In-House Bonus Emails The Fifth R&R required the defendant to produce for in camera review a subset of In- House Bonus emails consisting of 3,090 documents. At oral argument plaintiffs' objections regarding the limited scope of that document subset were resolved. I conducted an in camera review and issued a Sixth R&R addressing and ordering the production of these documents. Plaintiffs now request the production of all "13,215 In-House Emails and their attachments." (Ex. 5, p. 2.) Stated another way, plaintiffs now seek production of the remaining balance of approximately 10,000 In-House Bonus emails. Based upon my in camera review, I found the proffered document subset to contain relevant documents. I see no legal, logical or equitable basis to change that determination with 2 2 of 8 FILED: WESTCHESTER COUNTY CLERK 10/02/2020 10/13/2020 04:40 11:34 PM AM INDEX NO. 60767/2018 NYSCEF DOC. NO. 627 634 RECEIVED NYSCEF: 10/02/2020 10/13/2020 respect to the balance of the In-House Bonus emails. Therefore, the defendant should produce the balance of these emails in accord with the terms of the Fifth R&R. 2. In-Crowd Database The Fourth R&R directed HLI to produce documents from its In-Crowd database responsive to six search terms provided by plaintiffs. The parties concede the In-Crowd database is difficult to search electronically because, in layman's terms, it contains both "structured" and "unstructured" documents. "Structured" documents are emails and electronic posts which are searchable electronically. "Unstructured" documents are attachments to such emails or posts. These cannot be searched electronically. Rather, they require a linear (i.e. manual) document review. In an effort to address these issues, the Fourth R&R directed the parties' technology consultants to meet to ascertain a methodology for document production. The consultants met with legal counsel. Different options were discussed. Email exchanges reflect some progress was made. However, the process ultimately failed when Konverse, the defendant's third-party computer vendor, withdrew because it was "overwhelmed by plaintiffs' 101 search terms" and related challenges arising from the COVID pandemic. Konverse transferred the database to defendant's counsel. Through the aid of another outside vendor, defendant ran the search of the 39,221 documents contained in the In-Crowd database against plaintiffs' six (or 101) search terms (infra., p. 4). Defendant asserts the search terms hit only 202 documents (0.5% hit rate), which were produced. Plaintiffs argue, yet again, that the small hit rate is prima facie proof the defendant's search was improper and speculates that the search process could have been compromised by the transfer of data from Konverse to defendant's counsel. Defendant responds that the search was 3 3 of 8 FILED: WESTCHESTER COUNTY CLERK 10/02/2020 10/13/2020 04:40 11:34 PM AM INDEX NO. 60767/2018 NYSCEF DOC. NO. 627 634 RECEIVED NYSCEF: 10/02/2020 10/13/2020 proper, that the low hit rate is a function of poor search terms and that plaintiffs are judicially estopped from asserting new terms. Plaintiffs' also argue that prior to Konverse's departure the parties had negotiated a protocol for the collection of structured and unstructured documents. 1 Defendant denies there was any such agreement. Defendant argues that Konverse, the third-party vendor, controls the data, not defendant. Plaintiffs logically question this argument but pivot and now request that if this is correct, plaintiffs be permitted to seek the In-Crowd database via third-party subpoena. This vexing issue has existed for almost a year and has been the subject of three R&Rs, all approved by the Court. There is no need to address if plaintiff exceeded its search terms since defendant ran all of those terms in its search. As such, the issue of judicial estoppel is inapplicable, as is the issue of Konverse's alleged ownership and control of the data. Based upon the parties' submissions, I have no basis to question if the 202 documents produced by defendant constitute a good faith search. The small number of documents (202) is not dispositive. Moreover, this is pre-class certification discovery governed by a proportionality standard. Based upon plaintiffs' own assertions regarding the importance of the various categories of the universe of documents involved in this case, they have received (and will receive via this Report if confirmed) ample appropriate discovery from key document categories to move for class certification. The burden upon defendant to conduct yet another search and the attendant delay is not warranted under these circumstances. It may well be that documents relevant to plaintiffs' two remaining claims are contained in the In-Crowd database. If class Defendant asserts that plaintiffs six search terms (allotted by the Fourth R&R) were actually 101 if you include plaintiffs' "limiters" to each search term. Plaintiffs disagree.This is an academic and irrelevant distraction since defendant ultimately searched the alleged 101 terms. 4 4 of 8 FILED: WESTCHESTER COUNTY CLERK 10/02/2020 10/13/2020 04:40 11:34 PM AM INDEX NO. 60767/2018 NYSCEF DOC. NO. 627 634 RECEIVED NYSCEF: 10/02/2020 10/13/2020 certification is granted, plaintiffs will have the opportunity to seek such discovery. Therefore, plaintiffs' request for additional discovery from the In-Crowd database should be denied. 3. Corporate Shared Drive This dispute arises from plaintiffs' desire to "unzip" zip drives which are attachments to files identified and produced by defendant pursuant to the Fourth R&R. In compliance with the Fourth R&R, on July 27, 2020 plaintiffs' counsel identified desired files from HLI's Corporate Shared Drive. In that request plaintiffs' counsel requested 3,870 computer files for linear (manual) review. Thirteen of those files were zip files - "unstructured" attachments to the file documents. Defendant opened the 13 zip files and subjected them to the six (or 101) search terms provided by plaintiffs, resulting in the production of 202 documents. Plaintiffs now request a linear review of all the zip files, which consists of 22,227 documents. Plaintiffs' request for a "second culling mechanism" to compel HLI to manually search for and review over 22,000 documents is neither reasonable, appropriate nor necessary given the pre-class certification status of this matter. Citing the proportionality standard governing pre-class certification discovery, HLI objects on the basis of cost, relevance and futility. For the reasons set forth above, further discovery is not warranted for plaintiffs to conduct appropriate depositions and move for class certification. Therefore, I recommend plaintiffs' request for additional discovery of HLI's Corporate Shared Drive be denied. 2 2 Plaintiffs suggested alternative supplemental production a supplemental HLI corporate shared drive report containing 500 files -is equally inappropriate under the proportionality standard. 5 5 of 8 FILED: WESTCHESTER COUNTY CLERK 10/02/2020 10/13/2020 04:40 11:34 PM AM INDEX NO. 60767/2018 NYSCEF DOC. NO. 627 634 RECEIVED NYSCEF: 10/02/2020 10/13/2020 4. Deborah Dalton Documents Deborah Dalton is one of the HLI executive level document custodians designated by plaintiffs. HLI produced 151 of the 6,756 documents from Ms. Dalton's custodial file based upon plaintiffs' search terms. 3 This is a 2% hit rate. However, this category of documents is very different than the In-Crowd or Corporate Drive generic databases. Given Dalton's executive status and designation as a document custodial witness, plaintiffs are entitled to a more fulsome production of her custodial file. The 6,756 documents are readily available and searchable. Therefore, they should be produced. I note that some Dalton documents were contained in the In-House Bonus emails that were the subject of in camera review of the In-House Bonus emails which defendant asserted were irrelevant. Any concerns regarding privilege or confidentiality can or have been addressed without my further involvement. HLI's privilege log already identifies certain Dalton documents as privileged. Any confidentiality concerns can be address by the standing Confidentiality Order. However, if the foregoing does not alleviate defendant's concerns regarding privilege or confidentiality, it has the option of submitting the Dalton documents to me for in camera review which I would conduct using the same protocol as used for the In-House Bonus emails. In offering this option, I am very cognizant of the cost and delay associated with such a review. Therefore, within two business days of the confirmation of this Report and Recommendation, defendant shall advise me of its choice between in camera review or direct production to plaintiffs of the 6,756 Dalton documents. HLI could not locate two-thirds of the custodial files of James Gricar, the other HLI executive and designated document custodian. As a result, plaintiffs have not received full discovery from document custodial witnesses. 6 6 of 8 FILED: WESTCHESTER COUNTY CLERK 10/02/2020 10/13/2020 04:40 11:34 PM AM INDEX NO. 60767/2018 NYSCEF DOC. NO. 627 634 RECEIVED NYSCEF: 10/02/2020 10/13/2020 5. Categorical Privilege Log Plaintiffs challenge HLI's privilege log because it categorically (without document specificity) designates as privileged, among other things, documents relating to (1) HLI's "huge change" in its dual agency policy in the Spring of2015 and (2) a 2018 New York State Department of State agency disclosure audit of HLI. HLI' s privilege log merely categorically refers to documents that appear to relate to these two events. HLI's privilege log is inadequate as it relates to these two matters. These events directly concern the HLI In-House Dual Agency policies and programs which are the subject of this litigation. Therefore, non privileged documents relating to these matters are clearly relevant and should be produced. Therefore, as I indicated during oral argument, the documents designated as privileged on HLI's privilege relating to the New York State audit and 2018 dual agency policy change should be submitted to me for in camera review with five business days of the Court's confirmation of this Report and Recommendation. 6. Depositions HLI has noticed its own employees depositions in the apparent effort to depose these witnesses before plaintiffs have received complete document disclosure. There is nothing in the CPLR that precludes HLI's counsel from deposing their own employees. However, they do so at their peril. As I have reiterated repeatedly, plaintiffs will not be prohibited from re-noticing those same witnesses after pre-class certification document discovery is completed. Since such discovery has clearly not been completed, plaintiffs are entitled to depose these HLI witnesses in the future. 7 7 of 8 FILED: WESTCHESTER COUNTY CLERK 10/02/2020 10/13/2020 04:40 11:34 PM AM INDEX NO. 60767/2018 NYSCEF DOC. NO. 627 634 RECEIVED NYSCEF: 10/02/2020 10/13/2020 7. Class Certification Motion Both parties seek to set a schedule for the filings of a class certification motion. This is a moving target given the ongoing discovery disputes. However, I invite the parties to meet and confer regarding such a schedule in light of this Report and Recommendation. If an agreement can be reached, I will gladly recommend the Court confirm same. CONCLUSION I respectfully report and recommend that the Court confirm and adopt the aforesaid discovery rulings. Dated: White Plains, New York October 2, 2020 William P. Harring on, Esq. Discovery Referee TO: All Counsel via NYSECF 8 8 of 8