Preview
FILED: WESTCHESTER COUNTY CLERK 10/28/2020 03:05 PM INDEX NO. 60767/2018
NYSCEF DOC. NO. 642 RECEIVED NYSCEF: 10/28/2020
EXHIBIT 2
FILED: WESTCHESTER COUNTY CLERK 10/28/2020 03:05 PM INDEX NO. 60767/2018
NYSCEF DOC. NO. 642 RECEIVED NYSCEF: 10/28/2020
MacGi11lpc
55 Monument Circle
Suite uooC
Indianapolis, IN 46204
www.MacGillLaw.com
Robert D. MacGill
317.442.3825
Robert.MacGill@MacGillLaw.com
Via Email
October 14, 2020
William P. Harrington, Esq.
Bleakley Platt & Schmidt, LLP
One North Lexington A venue
White Plains, NY 10601
RE: Debra Dalton Documents (Seventh Report and Recommendation)
Goldstein et al. v. Houlihan La,wrence, Inc.
No. 60767/2018 (N.Y. Sup. Ct., Westchester Cty.)
Dear Bill:
We write pursuant to your Seventh Report and Recommendation ("Report"). This letter
pertains only to the section of the Report entitled "Deborah Dalton Documents" and requests
reconsideration of (1) the recommendation that these documents be produced, or, in the
alternative, (2) the methodology for the in camera review of the Dalton Subset offered in the
Report.
The Report recommends the production of 8,240 documents 1 from Ms. Dalton's custodial
file ("Dalton Subset"). The full Dalton Subset has been previously reviewed by counsel in its
entirety. As you noted in the Report, counsel determined that approximately 150 of the
documents were responsive and approximately 250 of the documents were responsive but
privileged. In other words, counsel determined that approximately 7,800 documents in the
Dalton Subset were neither responsive nor relevant and were not to be produced. This result was
predictable, as plaintiffs' search terms are not reasonably calculated to lead to the discovery of
admissible evidence, especially for class certification purposes~
Houlihan Lawrence objects to the wholesale production of documents that merely "hit"
on one of plaintiffs' inartful search terms, especially where approximately 7,800 documents were
determined by counsel, upon a linear review, to be neither responsive nor relevant. We note in
particular the inequitable nature of plaintiffs' last-minute tactical request for such a production.
Now that Houlihan Lawrence knows that plaintiffs' overbroad and imprecise search terms may
be the only screen applied to our custodians' documents, we will be required to litigate each term
1 This is the number of documents, with families, that hit on plaintiffs' search terms. The addition of families
explains the difference between the Report's 6,756 number and the actual 8,240 number.
FILED: WESTCHESTER COUNTY CLERK 10/28/2020 03:05 PM INDEX NO. 60767/2018
NYSCEF DOC. NO. 642 RECEIVED NYSCEF: 10/28/2020
William P. Harrington, Esq.
October 14, 2020
Page 2
vigorously in the future. We reserve the right to do so, mindful of plaintiffs' ever-shifting
discovery practices.
Plaintiffs' discovery demands associated with the Dalton Subset have thus far yielded the
following results:
1. Houlihan Lawrence applied plaintiffs' broad search term list to the Dalton Custodial
File, which yielded the Dalton Subset: 8,240 documents (including families).
2. Houlihan Lawrence reviewed the entire 8,240 documents in the Dalton Subset and
verified that approximately 7 ,800 documents therein were neither responsive nor
relevant.
3. Houlihan Lawrence is now offered the option of producing the entire Dalton Subset
or have approximately 35 percent of those documents reviewed again by you in your
capacity as Discovery Referee.
This sequence of events does not seem to be consistent with the discovery rules or reasonable as
a matter of economics.
Based on these circumstances, we ask that the Report be reconsidered as to the Dalton
Subset. Houlihan Lawrence further reserves its right to the in camera review offered by the
Report.
We ask that, if the in camera review were to proceed, that the documents in the Dalton
Subset be assessed for (1) responsiveness and relevance for class certification purposes, and (2)
the proportionality of such discovery, considering that Houlihan Lawrence has produced 72,182
pages to date. We further ask that, if the in camera review were to proceed, that the costs of this
duplicative exercise be taxed solely against the Plaintiffs.
As acknowledged in the Report, confidentiality and privilege concerns also surround the
Dalton Subset. While we reserve all privilege assertions and confidentiality assertions, we have
taken a proactive approach toward managing these concerns through a filing today requesting
entry of a standard privilege claw back order pursuant to Rule 11-g.
Houlihan Lawrence reserves, and does not waive, its rights concerning any ot~er portion
of the Report, and its rights concerning the outcome of any in camera review. Further, if any
recommendations as to responsiveness were to result from an in camera review, Houlihan
Lawrence would reserve the right to further review the documents for any applicable privilege
and/or attorney work product protection.
Finally, Houlihan Lawrence intends to request a pre-motion conference with the Court to
obtain leave to file a motion pursuant to 22 NYCRR § 202.44(a) to reject that portion of the
Seventh Report and Recommendation that relates to the Deborah Dalton Documents. This
request is to preserve Houlihan Lawrence's rights.
Thank you for your assistance.
MacGillpc
FILED: WESTCHESTER COUNTY CLERK 10/28/2020 03:05 PM INDEX NO. 60767/2018
NYSCEF DOC. NO. 642 RECEIVED NYSCEF: 10/28/2020
William P. Harrington, Esq.
October 14, 2020
Page 3
Best regards.
Very truly yours,
Robert D. MacGill
cc: Matthew Ciulla, Alfred Donnellan, Nelida Lara, Jeremy Vest, Courtney Rockett
MacGillec
Preview
FILED: WESTCHESTER COUNTY CLERK 10/28/2020 03:05 PM INDEX NO. 60767/2018 NYSCEF DOC. NO. 642 RECEIVED NYSCEF: 10/28/2020 EXHIBIT 2 FILED: WESTCHESTER COUNTY CLERK 10/28/2020 03:05 PM INDEX NO. 60767/2018 NYSCEF DOC. NO. 642 RECEIVED NYSCEF: 10/28/2020 MacGi11lpc 55 Monument Circle Suite uooC Indianapolis, IN 46204 www.MacGillLaw.com Robert D. MacGill 317.442.3825 Robert.MacGill@MacGillLaw.com Via Email October 14, 2020 William P. Harrington, Esq. Bleakley Platt & Schmidt, LLP One North Lexington A venue White Plains, NY 10601 RE: Debra Dalton Documents (Seventh Report and Recommendation) Goldstein et al. v. Houlihan La,wrence, Inc. No. 60767/2018 (N.Y. Sup. Ct., Westchester Cty.) Dear Bill: We write pursuant to your Seventh Report and Recommendation ("Report"). This letter pertains only to the section of the Report entitled "Deborah Dalton Documents" and requests reconsideration of (1) the recommendation that these documents be produced, or, in the alternative, (2) the methodology for the in camera review of the Dalton Subset offered in the Report. The Report recommends the production of 8,240 documents 1 from Ms. Dalton's custodial file ("Dalton Subset"). The full Dalton Subset has been previously reviewed by counsel in its entirety. As you noted in the Report, counsel determined that approximately 150 of the documents were responsive and approximately 250 of the documents were responsive but privileged. In other words, counsel determined that approximately 7,800 documents in the Dalton Subset were neither responsive nor relevant and were not to be produced. This result was predictable, as plaintiffs' search terms are not reasonably calculated to lead to the discovery of admissible evidence, especially for class certification purposes~ Houlihan Lawrence objects to the wholesale production of documents that merely "hit" on one of plaintiffs' inartful search terms, especially where approximately 7,800 documents were determined by counsel, upon a linear review, to be neither responsive nor relevant. We note in particular the inequitable nature of plaintiffs' last-minute tactical request for such a production. Now that Houlihan Lawrence knows that plaintiffs' overbroad and imprecise search terms may be the only screen applied to our custodians' documents, we will be required to litigate each term 1 This is the number of documents, with families, that hit on plaintiffs' search terms. The addition of families explains the difference between the Report's 6,756 number and the actual 8,240 number. FILED: WESTCHESTER COUNTY CLERK 10/28/2020 03:05 PM INDEX NO. 60767/2018 NYSCEF DOC. NO. 642 RECEIVED NYSCEF: 10/28/2020 William P. Harrington, Esq. October 14, 2020 Page 2 vigorously in the future. We reserve the right to do so, mindful of plaintiffs' ever-shifting discovery practices. Plaintiffs' discovery demands associated with the Dalton Subset have thus far yielded the following results: 1. Houlihan Lawrence applied plaintiffs' broad search term list to the Dalton Custodial File, which yielded the Dalton Subset: 8,240 documents (including families). 2. Houlihan Lawrence reviewed the entire 8,240 documents in the Dalton Subset and verified that approximately 7 ,800 documents therein were neither responsive nor relevant. 3. Houlihan Lawrence is now offered the option of producing the entire Dalton Subset or have approximately 35 percent of those documents reviewed again by you in your capacity as Discovery Referee. This sequence of events does not seem to be consistent with the discovery rules or reasonable as a matter of economics. Based on these circumstances, we ask that the Report be reconsidered as to the Dalton Subset. Houlihan Lawrence further reserves its right to the in camera review offered by the Report. We ask that, if the in camera review were to proceed, that the documents in the Dalton Subset be assessed for (1) responsiveness and relevance for class certification purposes, and (2) the proportionality of such discovery, considering that Houlihan Lawrence has produced 72,182 pages to date. We further ask that, if the in camera review were to proceed, that the costs of this duplicative exercise be taxed solely against the Plaintiffs. As acknowledged in the Report, confidentiality and privilege concerns also surround the Dalton Subset. While we reserve all privilege assertions and confidentiality assertions, we have taken a proactive approach toward managing these concerns through a filing today requesting entry of a standard privilege claw back order pursuant to Rule 11-g. Houlihan Lawrence reserves, and does not waive, its rights concerning any ot~er portion of the Report, and its rights concerning the outcome of any in camera review. Further, if any recommendations as to responsiveness were to result from an in camera review, Houlihan Lawrence would reserve the right to further review the documents for any applicable privilege and/or attorney work product protection. Finally, Houlihan Lawrence intends to request a pre-motion conference with the Court to obtain leave to file a motion pursuant to 22 NYCRR § 202.44(a) to reject that portion of the Seventh Report and Recommendation that relates to the Deborah Dalton Documents. This request is to preserve Houlihan Lawrence's rights. Thank you for your assistance. MacGillpc FILED: WESTCHESTER COUNTY CLERK 10/28/2020 03:05 PM INDEX NO. 60767/2018 NYSCEF DOC. NO. 642 RECEIVED NYSCEF: 10/28/2020 William P. Harrington, Esq. October 14, 2020 Page 3 Best regards. Very truly yours, Robert D. MacGill cc: Matthew Ciulla, Alfred Donnellan, Nelida Lara, Jeremy Vest, Courtney Rockett MacGillec