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FILED: WESTCHESTER COUNTY CLERK 05/19/2021 01:15 PM INDEX NO. 60767/2018
NYSCEF DOC. NO. 673 RECEIVED NYSCEF: 05/19/2021
EXHIBIT A
FILED: WESTCHESTER COUNTY CLERK 05/19/2021 01:15 PM INDEX NO. 60767/2018
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Jeremy C. Vest Chrysler Center
212 692 6718 666 Third Avenue
jvest@mintz.com New York, NY 10017
212 935 3000
mintz.com
MINTZ
May 4, 2021
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 pursuant CPLR § 3124 to move to compel Houlihan Lawrence (“HL”)
to collect and produce documents from the custodial file of Lewis Arlt, its longtime
former Scarsdale office manager.
The Ninth R&R (5-6) recognized that Plaintiffs “had no reason to know of Mr.
Arlt’s existence or significance” prior to September 28, 2020, including that he was
HL’s “guru on agency,” a member of its “Law and Agency team,” and “played a
meaningful role in the development and implementation of HLI’s dual agency
policy.” HL has since sought “permission to move to confirm” the Ninth R&R (Dkt.
670), thus taking no issue with the Ninth R&R’s finding (5-6) that newly discovered
evidence showed for the first time that Mr. Arlt played a key role in the matters “at
the heart of the class certification issue to be considered by the Court.”
HL’s April 23, 2021 production in response to the Ninth R&R shows that Mr.
Arlt is an even more important witness than was known when the Ninth R&R
issued. Most obviously, HL’s production included a damning e-mail from Mr. Arlt
warning HL as far back as 2014 that its In-House Bonus “is an incentive for agents
to push in-house deals, “clearly compromises our fiduciary obligation to place
clients’ interests above our own,” and would “open a dangerous can of worms” for
HL if disclosed to its clients. (Ex. A) HL also just produced an e-mail to Mr. Arlt
showing that it tasked him with revising its “agency relationships” policy shortly
after the start of the proposed class period. (Ex. B).
HL is responsible for the belated discovery of Mr. Arlt’s critical importance.
HL failed to specifically identify Mr. Arlt in response to Plaintiffs’ interrogatories
BOSTON LONDON LOS ANGELES NEW YORK SAN DIEGO SAN FRANCISCO WASHINGTON
MINTZ, LEVIN, COHN, FERRIS, GLOVSKY AND POPEO, P.C.
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MINTZ
Mr. William P. Harrington
MINTZ
May 4, 2021
Page 2
(Ex. C), served nearly 18 months ago, on November 4, 2019, including those seeking
identification of the persons most knowledgeable about HL’s dual agency
(Interrogatory No. 1) and In-House Bonus (Interrogatory Nos. 2-3) policies. In fact,
HL did not identify Mr. Arlt as knowledgeable about “The Disclosure of Agency”
scripted role-play used to train HL sales agents (Interrogatory No. 6), even though
Mr. Arlt created the script (Ex. D) and presented it (Ex. E) at a 2011 company-wide
training event. Mr. Arlt’s centrality was thus unknown to Plaintiffs and this Court
when, in May 2020, the Fourth R&R (5) denied Plaintiffs’ request to designate a
select sample of office managers, including Mr. Arlt, as general custodians for pre-
class certification discovery purposes.
One month later, in June 2020, Mr. Arlt’s role remained undisclosed by
virtue of the unexplained absence of Exhibits A and B from HL’s initial production
of Dalton Documents. HL should have located and produced Exhibits A and B at
that time because: (i) Ms. Dalton sent or received them; (ii) they each contain one or
more of the parties’ agreed search terms; and (iii) the Second R&R (5) directed HL
to produce all documents relating to HL’s “institutional implementation, rationale
and training regarding dual agency.” See also Third R&R at 4 (directing production
of documents relating to the “creation, implementation and enforcement of policies
or guidelines governing dual agency sales”).
Exhibits A and B were also not produced in response to the Seventh and
Eighth Reports and Recommendations, which directed HL to turn over all non-
privileged documents collected from Ms. Dalton’s custodial file.
Rather, Plaintiffs only managed to obtain Exhibits A and B in response to the
Ninth R&R and because they refused to accept less than all “internal emails from
Scarsdale, Bronxville and White Plains office regarding any HLI institutional dual
agency ‘bonus’ program” as directed by the Second R&R (5) on January 22, 2020.
Plaintiffs were deprived of the full benefit of that ruling, and Mr. Arlt’s In-House
Bonus e-mail, for more than a year because HL limited its collection to only those
individuals involved in the “sample transactions,” Fourth R&R (11-12); withheld all
but one In-House Bonus e-mail as purported “junk,” Sixth R&R; and excluded Mr.
Arlt as a custodian, Ninth R&R (6).
The Second Report and Recommendation (4) recognized that “[d]iscovery is
an iterative process based upon the real time evaluation of information that is
produced,” and that “attorneys are compelled to pivot as required based upon the
evaluation of information received in discovery.” HL’s recent, belated disclosures
provide urgent and compelling justification to recognize now that the Court cannot
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MINTZ
Mr. William P. Harrington I
MINTZ
May 4, 2021
Page 3
make an informed and just class certification determination without the benefit of
discovery from Mr. Arlt.
Plaintiffs have agreed to move for class certification on or before July 21,
2021. Accordingly, Plaintiffs request prompt issuance of a Report and
Recommendation directing HL to collect and produce any non-privileged document
in Mr. Arlt’s custodial file where the document, or its attachments, hit on any of the
six search terms the parties agreed to use for HL’s collection from Ms. Dalton’s
custodial file. (Ex. F) Such an order is proportionate to the needs of the case given
Mr. Arlt’s unquestioned importance and the exigent circumstances created by HL’s
failure to timely identify Mr. Arlt as a relevant witness.
Regards,
Jeremy Vest
Cc: Counsel for Defendant (via E-mail)
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EXHIBIT A
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From: Arlt,Lewis
Sent: Fri 5/09/2014 2:28 PM (GMT-04:00)
To: Dalton, Debra
Cc:
Bee:
Subject: in-house bonus
Hi Debbie,
I'm working on the meeting report for our managers.
It occurs to me to confess that I've never been a big fan of the in-house bonus. Despite the argument
that it is an understandable reward for a job well-done, and the in-house nature of it is pure coincidence
and simply a function of our large market share, there is no avoiding the perception from an objective
observer that this is an incentive for agents to push in-house deals. And while working with two HL
agents may in fact help a deal go smoothly because HL agents are generally better and clients benefits
from our existing relationships, there is a self-serving elephant in the room, that clearly compromises
our fiduciary obligation to place clients' interests above our own. If we start revealing to sellers and
buyers that agents get paid more if they do an in-house deal, I think we open a dangerous can of
worms. As heretical as it sounds, I think it could be more risky than simply eliminating the in-house
bonus as a practice.
Is there way these monies can be uncoupled from the individual deal, and restructured similar to
quarterly bonuses? We'd look at overall production and reward it whether it comes from in-house deals
or not.
When the Fee agents first arrived here on 2007, I grappled with Joan, Irene, and others for always
including deal emails to the office which read, "AO, in-house," or "AO, out of office." The clear
unspoken message was, if it was in-house, "stay away from my deal;" or if it was out of office, the
message was "bring your buyers and bump this deal if you can." They would argue that market share
was the only motivating factor, but there's no mistaking what their perception of the in-house deal
was. They all still do it regularly.
Maybe we just lay low and hope this issue doesn't flare. But if we have to print in-house bonus alerts in
our ERSs and ERRs, yikes, I'm afraid we'll invite some very awkward conversations.
Just saying ...
Lewis Arlt
Licensed Real Estate Associate Broker
Brokerage Manager
Houlihan Lawrence
32 Popham Road
Scarsdale, NY 10583
Office 914-723-8877
Cell 914-309-5766
CONFIDENTIAL HL00150293
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EXHIBIT B
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NYSCEF DOC. NO. 673 RECEIVED NYSCEF: 05/19/2021
From: Dalton, Debra
Sent: Thu 10/20/2011 4:50 PM (GMT-04:00)
To: Arlt,Lewis
Cc:
Bee:
Subject: FW: Agency Relationships
Attachments: agency relationships.pdf
Lewis,
I am in the process of updating our manuals and was hoping you would take a look at the attached
portion on agency relationships and update it for me. Thanks.
Debra Dalton
Senior Vice President
Houlihan/Lawrence Inc.
4 Valley Road
Bronxville, NY 10708
914-337-7700 X 335
914-391-5144 (cell)
ddalton@houlihanlawrence.com
-----Original Message-----
From: Lewis, Barbara
Sent: Thursday, October 20, 2011 4:31 PM
To: Dalton, Debra
Subject: Agency Relationships
Barbara
------------
------------
Barbara Lewis
Director of Corporate Administration
Houlihan Lawrence
4 Valley Road
Bronxville, NY 10708
914-337-0400
914-337-1671 - fax
914-826-1000 - mobile
CONFIDENTIAL HL00150110
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AGENCY RELATIONSHIPS
Houlihan Lawrence Inc. has reviewed its policies regarding our agency relationships with Sellers and
Buyers to be sure that they accurately reflect the reality of relationships we create while conducting our
business.
I. OURPOLICY
We believe that both Sellers and Buyers have the right to representation in the purchase or sale of
property.
We will offer the choice that is appropriate to Buyers and Sellers.
We shall act as agents or
subagents of the Seller, if requested by the Seller. However, we may also act as a Buyers Agent.
Further,
should a Buyer Client purchase a Houlihan Lawrence listing, the Company may be a Consensual Dual
Agent, representing both Buyer and Seller, with the individual agents acting as Designated Agents -after
informed written consent by both Seller and Buyer Clients.
II. HOW WE WILL TREAT SELLERS
If a Seller signs a listing agreement with Houlihan Lawrence, we will in all instances represent this Seller
as the Sellers Agent, or act as a Consensual Dual Agent only with the Seller's written agreement in the
event of an in-house transaction. The individual listing agent shall, with Sellers infonned written consent,
be a Designated Agent in the event of an in-house transaction.
ID. HOW WE WILL TREAT BUYERS
MUST be a. Buyer Client SHOlJLD be a Buyer Client
Agents buying for themselves Close friend
Buyer who wants anonymity Former Client or Customer
Relative First Time Buyer
Buyer whoWANTS representation Out of town Buyer
Buyer as a Customer
Any Buyer not identified here as a "Must'' or "Should" client
Open House Attendee
Telephone contact/ad response
A Buyer who does NOT want representation
IV. DUTIES AND SERVICES TO CUSTOMERS
Duties to Customers
• We must be honest.
• We must use reasonable skill and care.
• We must disclose material facts about the property and neighborhood that are known to us
that affect the value of the property, except as otherwise provided by law.
• We must be responsive to the customers' needs to the extent that those needs do not conflict
with duties to Clients and the law.
Houlihan l.owrence
3'
Agem Operations Guidelines Nm•ember 2009
CONFIDENTIAL HL00150111
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Services to Customers
• We can explain real estate terms and practices.
• We can screen properties.
• We can show properties.
• We can provide property information.
• We can provide community infonnation.
• We can present offers.
• We can estimate costs.
• We can recommend the use of experts.
V. DUTIES TO BuYER AND SELLER CLIENTS
Agency relationships are based upon one person's representing the best interest of another.
Our Agency
relationship with a Client is known as a Fiduciary relationship.
A Fiduciary relationship is based on the
highest level of trust.
A. Duti~it.when acting as Agent for Seller OR Buyer
I. Our Fiduciary duties are:
a. UNDIVIDED loyalty to our Client
b. Confidentiality
c. Full Disclosure of anything known to affect the Client's best interests
d. Obedience
e. Reasonable care and skill in performing our duties
f. A duty to account
2. When dealing with a Seller or Buyer Customer on behalf of our Seller or Buyer Client, we
must:
a. Exercise reasonable care and skill in perfonnance of our duties
b. Deal honestly and in good faith
c. Disclose all facts known to us materially affecting the value or desirability of the
property, except as provided by law
3. Effective September 1, 2004 every agent must have completed a minimum of a three credit
buyer agency class or pass the buyer agency class given by Houlihan Lawrence.
B. Duties when actingjl..§.J,::mtsensual Dual Agent (Q!:.Seller and Buyer Clients
As Consensual Dual Agents we CANNOT provide undivided loyalty to either Seller or Buyer
Client.
1. We cannot disclose confidential information that we may know about Seller or Buyer
regarding price, motivation to sell or to buy, or negotiating strategy, without written
permission of Seller or Buyer.
2. We cannot recommend a price a Buyer should offer or pay; or Sell.er should counter or
accept.
However, we can provide information about comparable properties so that Seller
and Buyer can make educated decisions.
3. We are still obligated to fulfill other duties described in VI.A section, provided that
fulfilling that obligation does not compromise our duties to the other Client.
Houlihm, Lawrence
38
Agent Opera/ions Guidelines November 2009
CONFIDENTIAL HL00150112
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C. Se.rvices to Sellers a11d Buyers when acting as Agent for Buyer OR Seller; or as CQnsensual Dual
Agent for Buyer or Seller.
I. We can provide all of ,the services that we provide to our customers as described in
Section V.
D. Duties when acting as Designatfil!_h_g_ent for Seller and Buyer Clients. -
ONLY on In-house
transactions.after a new 443
form and Designated Agency form have been executed by bot!]
Q!ients.
I. We must remember the Fiduciary Duties, especially Confidentiality for BOTH clients,
unless given WRITTEN consent to override.
2. We may providecomparablesand givelimited
advice 011pricing
or negotiating,
encouraging Clients to make final decisions.
3. We may Counsel and Advocate for the Clients.
VI. .PROCE.DURES
Our Agency relatio11sh.ips with Sellers and Buyers need not be confusing if we follow some clear-cut
procedures and explain them carefully to our Sellers and Buyers.
A. Listings
1. Each listing agreement must contain the "Potential for Dua! Agency".
2. Explain Dual Agency to the Seller at the time the listing is taken.
Obtain Seller's written
authori7.ation to SHOW the Seller's property to Houlihan Lawrence Buyer Clients.
Seller
must also sign the NYS "Disclosure
Regarding Real EstateRelationships".
acknowledging that you represent the Seller.
3. The Designated Agency fom1 should also be shown to the Seller and explained at the
time that the listing is taken.
4. At the time a Buyer is shown a property, always inform the Seller regarding who the
selling agent is representing.
B. Offers
1. If the Buyer is a Customer of Houlihan Lawrence; or a Buyer Customer of a Sub-Agent,
the listing and selling salespersons will represent the Seller in the transaction.
Agent
presenting the offer will forward copy ofNYS Agency Disclosure document to the listing
agent at the time of the offer.
2. If the Buyer is a Client from another firm, the Houlihan Lawrence Listing Salesperson
will represent the Seller and the selling salesperson of the other firm wi!l represent the
Buyer Client.
The Listing Salesperson must ask for the signed copy of the NYS Agency
Disclosure document at the time of the offer.
3. If the Buyer is a Client of Houlihan Lawrence, the listing and selling salespersons must
obtain WRITTEN consent from Seller and Buyer to act as Designated Agents.
A New
NYS Agency Disclosure document must be completed, acknowledging that Houlihan
Lawrence remains the Dual Agent in this transaction.
DESIGNATED AGENTS ARE STILL BOUND BY FIDUCIARY DUTIES.
39
HouUhan Lawrence
Agent OpOINT TO REMEMBER:
A. About Consensual Dual Agency / Designated Agency
The most important aspect of our policy
isthat wewillbe offering Designated Agency,
with
Houlihan Lawrence remaining a Dual Agent, on in-house transactions.
Both Sellers and Buyers have
the right to select which representation they prefer.
We must first obtain Seller Clients pennission to show our Buyer Clients the Sellers property, and be
certain that they understand both Designated and Dual Agency.
We must also obtain our Buyer
Clients permission to show them properties of our Seller Clients, and be certain that they understand
both Designated and Dual Agency.
It is our policy to have the Listing Salesperson work with the Seller and the SeHing Salesperson work
with the Buyer in a Dual and Designated Agency.
Houlihan /Lawrence, the Company, will remain
the dual
agent. If the same Salesperson is working with the Seller and Buyer Clients, another
Salesperson will work with one of the parties, with appropriate written consent, including a new NYS
disclosure document and the executed Designated Agency document.
B. t\,J;g_µt Confidentiality
Confidences shared
with you by a Client (Either
Selleror Buyer)must bekept confidential
forever .... even after you are no longer representing them.
IN SUMMARY NEVER .FORGET THE 4 "D"s
1. ~; the appropriate Agency relationship must be determined at the beginning of each
association. They do not happen accidentally.
2. DOCUMENT: in writing your agency/customer relationship.
A. Buyers and Sellers must sign the NYS Agency Disclosure document stating whom you
represent at the first substantive contact
41
Ho11/ihat1 Lawrence
Agent Operations Guidelines November 2009
CONFIDENTIAL HL00150115
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B. Designated Agency Agreements tn\lst also be signed with in-house transactions, if both
Seller and Buyer are Clients of Houlihan Lawrence .
C. A NEW NYS Agency Disclosure documents must be signed when entering into Dual
Agency and this document must be forwarded to the agent on the other side of the
transaction.
3. DISCLOSE: your agency relationship to all parties; Sellers, Buyers or other Brokers involved
AT THE TIME OF THE FIRST SUBSTANTIVE CONTACT, including at the time of an offor.
A. When making appointments for our listings or other brokers' listings, always state who
If a Seller is present wl1ile showing the property,
you are representing in the transaction.
always let them know who you are representing.
B. At the time that an offer is presented, hoth Listing and Selling agents MUST furnish the
signed NYS Agency Disclosure Document to both Seller and Buyer.
4. DO AS YOU SAY: PROVIDE THE SERVICE TO SELLER AND BUYER THAT YOU HAVE
PROMISED, AND THAT THEY EXPECT.
IX. PURCHASE AND OR SALE OF REAL ESTATE BY HOULIHAN LAWRENCE SALES
ASSOCIATES OR ASSOCIATE BROKJms
I) All real estate transactions wherein a Houlihan Lawrence agent intends to act as a principal
(Buyer or Seller),
must be reported
to agent's manager prior to commencement of any
In the event agent's manager is unavailable, agent is to contact their Regional
negotiations.
Vice President.
2) All negotiations on behalf of agent with others are to be handled by another agent.
This
includes all dealings with a co-broker (listing or selling ageut), and other Houlihan Lawrence
agents.
X. PERSONAL SALE EXEMPTION
Pul'chase and Sale of Primary Residcocc
When an agent lists or buys a primary residence, the Company will waive one half of the company dollar
on the action side of the transaction.
The agent must be a full time, active agent who has been licensed
for three consecutive years with Houlihan and has met desk costs for the previous year.
Agent shall
reimburse all marketing expenses incurred by Houlihan Lawrence , and fees due any other agent on the
transaction shall also be paid in full inclusive of in-house bonus.
'Action' side is defined as either the
purchase or sale side, whichever side agent is pursuing.
Residence must be listed with us.
This benefit is
limited to use one time every three years.
ALL OTHER AGENT PURCHASES I SALES OF PROPERTY ARE SUB.JECT TO
CORPORATE REVIEW AND APPROVAL.
42
Houlihan Lmvrettce
Agent Operations Guidelines Nm•ember 2009
CONFIDENTIAL HL00150116
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EXHIBIT C
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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF WESTCHESTER
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PAMELA GOLDSTEIN,
ELLYN & TONY BERK, as Administrators DEFENDANT'S RESPONSES AND
of the Estate of Winifred Berk, and PA UL OBJECTIONS TO PLAINTIFFS'
BENJAMIN, on behalf of themselves FIRST SET OF INTERROGATORIES
and all others similarly situated,
Index No. 60767/2018
Plaintiffs,
-against- Hon. Linda S. Jamieson
HOULIHAN/LA WRENCE INC.,
Defendant.
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Pursuant to Article 31 of the Civil Practice Law and Rules and Rule 11-a of the
Commercial Division Rules, Houlihan Lawrence, Inc. ("Houlihan Lawrence"), by and through
its attorneys, Collier Halpern & Newberg, LLP and Barnes & Thornburg LLP, as and for its
responses to plaintiffs Pamela Goldstein, Ellyn and Tony Berk, and Paul Benjamin's
("Plaintiffs") First Set of Interrogatories dated November 4, 20 19 (the "Interrogatories"), states
as follows:
GENERAL OBJECTIONS
1. Houlihan Lawrence objects to the Inte1Togatories to the extent that they seek
information that is not relevant to the issues in this case.
2. Houlihan Lawrence objects to the Interrogatories to the extent that they seek
information that is not within the possession, custody or control of Houlihan Lawrence.
3. Houlihan Lawrence reserves the right to challenge the relevance, materiality and
admissibility of its responses to the Interrogatories in any subsequent proceeding or the trialof
this or any other action.
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4. To the extent that Houlihan Lawrence responds to Plaintiffs' Interrogatories,
Houlihan Lawrence does not concede that the information is relevant to this action. Houlihan
Lawrence expressly reserves the right to object to further discovery into the subject matter of any
of the Interrogatories and the introduction into evidence of any response or portion thereof.
5. Houlihan Lawrence objects to the Interrogatories to the extent that they seek to
impose duties and obligations upon Houlihan Lawrence in excess of those imposed by the Civil
Practice Law and Rules and/or the Rules of the Commercial Division.
6. Houlihan Lawrence objects to the Interrogatories to the extent that they request
information regarding "all" or " any" person(s), entity(ies) or document(s) on the grounds that
such requests are vague, ambiguous, overly broad, unduly burdensome, oppressive and
vexatious, and seek information that is neither relevant to the subject matter of this action nor
reasonably calculated to lead to the discovery of admissible evidence. Subject to these
objections, Houlihan Lawrence will construe these terms to mean that itis to use reasonable
diligence to provide responsive info1mation within its possession, custody or control. Houlihan
Lawrence reserves the right to rely on any facts, documents or other evidence which may
develop or come to Houlihan Lawrence's attention subsequent hereto. Houlihan Lawrence's
responses are set forth herein without prejudice to its right to assert additional objections or
supplemental responses should it discover additional information or documents or grounds for
objections.
7. Houlihan Lawrence reserves the right to modify, supplement or amend these
responses at any time prior to trial of this action.
8. Houlihan Lawrence objects to the Interrogatories to the extent that they seek
information that is personal, private, confidential or proprietary in nature.
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9. Houlihan Lawrence incorporates each of the foregoing General Objections into its
Specific Objections to each of the Interrogatories. No Specific Objection is intended to waive
any General Objection.
OBJECTIONS TO DEFINITIONS
1. Houlihan Lawrence objects to the definition of " Houlihan Lawrence" or "you" as
overly broad and unduly burdensome, pmiicularly to the extent it purports to include " parents,"
" present or former owners," and other entities and persons not within Houlihan Lawrence's
control.
2. Houlihan Lawrence objects to the definition of " Pocket Listings" as vague and
ambiguous in its reference to a purported "practice of marketing properties off the multiple
listing services."
3. Houlihan Lawrence objects to the definition of "Pre-MLS Marketing" as vague
and ambiguous in its reference to a purported "practice of marketing properties before they are
listed on the multiple listing service."
SPECIFIC OBJECTIONS AND RESPONSES
INTERROGATORYNO.1: Identify all persons who have, claim to have, or whom you
believe may have knowledge or information relating to the creation, drafting, adoption,
implementation of, or compliance with, the Houlihan Lawrence Agency Policy set forth in the
document produced in this Action at HL 21202.
RESPONSE TO INTERROGATORY NO. 1: Houlihan Lawrence objects to this
Interrogatory upon the grounds that it is overbroad and unduly burdensome to the extent that it is
not limited as to time frame. Houlihan Lawrence further objects upon the grounds that this
Interrogatory seeks information that is more appropriately obtained through depositions. Subject
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to and without waiving the foregoing objections, Houlihan Lawrence identifies one or more of
the following persons: Annette Chrystal, Stephen Meyers, Chris Meyers, Debra Dalton, and/or
Elizabeth Nunan. In addition, each office manager and each independent contractor agent plays
a role in implementation of and compliance with policies.
INTERROGATORY NO. 2: Identify all persons who have, claim to have, or whom you
believe may have knowledge or information relating to the creation, drafting, adoption,
implementation of, or compliance with, the Houlihan Lawrence Agency Disclosure Policy - New
York set forth in the document produced at HL 2169.
RESPONSE TO INTERROGATORY NO. 2: Houlihan Lawrence objects to this
Interrogatory upon the grounds that it is overbroad and unduly burdensome to the extent that it is
not limited as to time frame. Houlihan Lawrence further objects upon the grounds that this
Interrogatory seeks information that is more appropriately obtained through depositions. Subject
to and without waiving the foregoing objections, Houlihan Lawrence identifies one or more of
the following persons: Annette Chrystal, Stephen Meyers, Chris Meyers, Debra Dalton, and/or
Elizabeth Nunan. In addition, each office manager and each independent contractor agent plays
a role in implementation of and compliance with policies.
INTERROGATORY NO. 3: Identify all persons who have, claim to have , or whom you
believe may have knowledge or information relating to the creation, drafting, adoption,
implementation of, or compliance with, the "In-House Bonus" policy set forth in the Houlihan
Lawrence Agent Company Operations Guidelines produced in this Action at HL 1668.
RESPONSE TO INTERROGATORY NO. 3: Houlihan Lawrence objects to this
Interrogatory upon the grounds that it is overbroad and unduly burdensome to the extent that it is
not limited as to time frame. Houlihan Lawrence fm1her objects upon the ground
Preview
FILED: WESTCHESTER COUNTY CLERK 05/19/2021 01:15 PM INDEX NO. 60767/2018 NYSCEF DOC. NO. 673 RECEIVED NYSCEF: 05/19/2021 EXHIBIT A FILED: WESTCHESTER COUNTY CLERK 05/19/2021 01:15 PM INDEX NO. 60767/2018 NYSCEF DOC. NO. 673 RECEIVED NYSCEF: 05/19/2021 Jeremy C. Vest Chrysler Center 212 692 6718 666 Third Avenue jvest@mintz.com New York, NY 10017 212 935 3000 mintz.com MINTZ May 4, 2021 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 pursuant CPLR § 3124 to move to compel Houlihan Lawrence (“HL”) to collect and produce documents from the custodial file of Lewis Arlt, its longtime former Scarsdale office manager. The Ninth R&R (5-6) recognized that Plaintiffs “had no reason to know of Mr. Arlt’s existence or significance” prior to September 28, 2020, including that he was HL’s “guru on agency,” a member of its “Law and Agency team,” and “played a meaningful role in the development and implementation of HLI’s dual agency policy.” HL has since sought “permission to move to confirm” the Ninth R&R (Dkt. 670), thus taking no issue with the Ninth R&R’s finding (5-6) that newly discovered evidence showed for the first time that Mr. Arlt played a key role in the matters “at the heart of the class certification issue to be considered by the Court.” HL’s April 23, 2021 production in response to the Ninth R&R shows that Mr. Arlt is an even more important witness than was known when the Ninth R&R issued. Most obviously, HL’s production included a damning e-mail from Mr. Arlt warning HL as far back as 2014 that its In-House Bonus “is an incentive for agents to push in-house deals, “clearly compromises our fiduciary obligation to place clients’ interests above our own,” and would “open a dangerous can of worms” for HL if disclosed to its clients. (Ex. A) HL also just produced an e-mail to Mr. Arlt showing that it tasked him with revising its “agency relationships” policy shortly after the start of the proposed class period. (Ex. B). HL is responsible for the belated discovery of Mr. Arlt’s critical importance. HL failed to specifically identify Mr. Arlt in response to Plaintiffs’ interrogatories BOSTON LONDON LOS ANGELES NEW YORK SAN DIEGO SAN FRANCISCO WASHINGTON MINTZ, LEVIN, COHN, FERRIS, GLOVSKY AND POPEO, P.C. FILED: WESTCHESTER COUNTY CLERK 05/19/2021 01:15 PM INDEX NO. 60767/2018 NYSCEF DOC. NO. 673 RECEIVED NYSCEF: 05/19/2021 MINTZ Mr. William P. Harrington MINTZ May 4, 2021 Page 2 (Ex. C), served nearly 18 months ago, on November 4, 2019, including those seeking identification of the persons most knowledgeable about HL’s dual agency (Interrogatory No. 1) and In-House Bonus (Interrogatory Nos. 2-3) policies. In fact, HL did not identify Mr. Arlt as knowledgeable about “The Disclosure of Agency” scripted role-play used to train HL sales agents (Interrogatory No. 6), even though Mr. Arlt created the script (Ex. D) and presented it (Ex. E) at a 2011 company-wide training event. Mr. Arlt’s centrality was thus unknown to Plaintiffs and this Court when, in May 2020, the Fourth R&R (5) denied Plaintiffs’ request to designate a select sample of office managers, including Mr. Arlt, as general custodians for pre- class certification discovery purposes. One month later, in June 2020, Mr. Arlt’s role remained undisclosed by virtue of the unexplained absence of Exhibits A and B from HL’s initial production of Dalton Documents. HL should have located and produced Exhibits A and B at that time because: (i) Ms. Dalton sent or received them; (ii) they each contain one or more of the parties’ agreed search terms; and (iii) the Second R&R (5) directed HL to produce all documents relating to HL’s “institutional implementation, rationale and training regarding dual agency.” See also Third R&R at 4 (directing production of documents relating to the “creation, implementation and enforcement of policies or guidelines governing dual agency sales”). Exhibits A and B were also not produced in response to the Seventh and Eighth Reports and Recommendations, which directed HL to turn over all non- privileged documents collected from Ms. Dalton’s custodial file. Rather, Plaintiffs only managed to obtain Exhibits A and B in response to the Ninth R&R and because they refused to accept less than all “internal emails from Scarsdale, Bronxville and White Plains office regarding any HLI institutional dual agency ‘bonus’ program” as directed by the Second R&R (5) on January 22, 2020. Plaintiffs were deprived of the full benefit of that ruling, and Mr. Arlt’s In-House Bonus e-mail, for more than a year because HL limited its collection to only those individuals involved in the “sample transactions,” Fourth R&R (11-12); withheld all but one In-House Bonus e-mail as purported “junk,” Sixth R&R; and excluded Mr. Arlt as a custodian, Ninth R&R (6). The Second Report and Recommendation (4) recognized that “[d]iscovery is an iterative process based upon the real time evaluation of information that is produced,” and that “attorneys are compelled to pivot as required based upon the evaluation of information received in discovery.” HL’s recent, belated disclosures provide urgent and compelling justification to recognize now that the Court cannot FILED: WESTCHESTER COUNTY CLERK 05/19/2021 01:15 PM INDEX NO. 60767/2018 NYSCEF DOC. NO. 673 RECEIVED NYSCEF: 05/19/2021 MINTZ Mr. William P. Harrington I MINTZ May 4, 2021 Page 3 make an informed and just class certification determination without the benefit of discovery from Mr. Arlt. Plaintiffs have agreed to move for class certification on or before July 21, 2021. Accordingly, Plaintiffs request prompt issuance of a Report and Recommendation directing HL to collect and produce any non-privileged document in Mr. Arlt’s custodial file where the document, or its attachments, hit on any of the six search terms the parties agreed to use for HL’s collection from Ms. Dalton’s custodial file. (Ex. F) Such an order is proportionate to the needs of the case given Mr. Arlt’s unquestioned importance and the exigent circumstances created by HL’s failure to timely identify Mr. Arlt as a relevant witness. Regards, Jeremy Vest Cc: Counsel for Defendant (via E-mail) FILED: WESTCHESTER COUNTY CLERK 05/19/2021 01:15 PM INDEX NO. 60767/2018 NYSCEF DOC. NO. 673 RECEIVED NYSCEF: 05/19/2021 EXHIBIT A FILED: WESTCHESTER COUNTY CLERK 05/19/2021 01:15 PM INDEX NO. 60767/2018 NYSCEF DOC. NO. 673 RECEIVED NYSCEF: 05/19/2021 From: Arlt,Lewis Sent: Fri 5/09/2014 2:28 PM (GMT-04:00) To: Dalton, Debra Cc: Bee: Subject: in-house bonus Hi Debbie, I'm working on the meeting report for our managers. It occurs to me to confess that I've never been a big fan of the in-house bonus. Despite the argument that it is an understandable reward for a job well-done, and the in-house nature of it is pure coincidence and simply a function of our large market share, there is no avoiding the perception from an objective observer that this is an incentive for agents to push in-house deals. And while working with two HL agents may in fact help a deal go smoothly because HL agents are generally better and clients benefits from our existing relationships, there is a self-serving elephant in the room, that clearly compromises our fiduciary obligation to place clients' interests above our own. If we start revealing to sellers and buyers that agents get paid more if they do an in-house deal, I think we open a dangerous can of worms. As heretical as it sounds, I think it could be more risky than simply eliminating the in-house bonus as a practice. Is there way these monies can be uncoupled from the individual deal, and restructured similar to quarterly bonuses? We'd look at overall production and reward it whether it comes from in-house deals or not. When the Fee agents first arrived here on 2007, I grappled with Joan, Irene, and others for always including deal emails to the office which read, "AO, in-house," or "AO, out of office." The clear unspoken message was, if it was in-house, "stay away from my deal;" or if it was out of office, the message was "bring your buyers and bump this deal if you can." They would argue that market share was the only motivating factor, but there's no mistaking what their perception of the in-house deal was. They all still do it regularly. Maybe we just lay low and hope this issue doesn't flare. But if we have to print in-house bonus alerts in our ERSs and ERRs, yikes, I'm afraid we'll invite some very awkward conversations. Just saying ... Lewis Arlt Licensed Real Estate Associate Broker Brokerage Manager Houlihan Lawrence 32 Popham Road Scarsdale, NY 10583 Office 914-723-8877 Cell 914-309-5766 CONFIDENTIAL HL00150293 FILED: WESTCHESTER COUNTY CLERK 05/19/2021 01:15 PM INDEX NO. 60767/2018 NYSCEF DOC. NO. 673 RECEIVED NYSCEF: 05/19/2021 EXHIBIT B FILED: WESTCHESTER COUNTY CLERK 05/19/2021 01:15 PM INDEX NO. 60767/2018 NYSCEF DOC. NO. 673 RECEIVED NYSCEF: 05/19/2021 From: Dalton, Debra Sent: Thu 10/20/2011 4:50 PM (GMT-04:00) To: Arlt,Lewis Cc: Bee: Subject: FW: Agency Relationships Attachments: agency relationships.pdf Lewis, I am in the process of updating our manuals and was hoping you would take a look at the attached portion on agency relationships and update it for me. Thanks. Debra Dalton Senior Vice President Houlihan/Lawrence Inc. 4 Valley Road Bronxville, NY 10708 914-337-7700 X 335 914-391-5144 (cell) ddalton@houlihanlawrence.com -----Original Message----- From: Lewis, Barbara Sent: Thursday, October 20, 2011 4:31 PM To: Dalton, Debra Subject: Agency Relationships Barbara ------------ ------------ Barbara Lewis Director of Corporate Administration Houlihan Lawrence 4 Valley Road Bronxville, NY 10708 914-337-0400 914-337-1671 - fax 914-826-1000 - mobile CONFIDENTIAL HL00150110 FILED: WESTCHESTER COUNTY CLERK 05/19/2021 INDEX01:15 NO. 60767/2018 PM NYSCEF DOC. NO. 673 RECEIVED NYSCEF: 05/19/2021 AGENCY RELATIONSHIPS Houlihan Lawrence Inc. has reviewed its policies regarding our agency relationships with Sellers and Buyers to be sure that they accurately reflect the reality of relationships we create while conducting our business. I. OURPOLICY We believe that both Sellers and Buyers have the right to representation in the purchase or sale of property. We will offer the choice that is appropriate to Buyers and Sellers. We shall act as agents or subagents of the Seller, if requested by the Seller. However, we may also act as a Buyers Agent. Further, should a Buyer Client purchase a Houlihan Lawrence listing, the Company may be a Consensual Dual Agent, representing both Buyer and Seller, with the individual agents acting as Designated Agents -after informed written consent by both Seller and Buyer Clients. II. HOW WE WILL TREAT SELLERS If a Seller signs a listing agreement with Houlihan Lawrence, we will in all instances represent this Seller as the Sellers Agent, or act as a Consensual Dual Agent only with the Seller's written agreement in the event of an in-house transaction. The individual listing agent shall, with Sellers infonned written consent, be a Designated Agent in the event of an in-house transaction. ID. HOW WE WILL TREAT BUYERS MUST be a. Buyer Client SHOlJLD be a Buyer Client Agents buying for themselves Close friend Buyer who wants anonymity Former Client or Customer Relative First Time Buyer Buyer whoWANTS representation Out of town Buyer Buyer as a Customer Any Buyer not identified here as a "Must'' or "Should" client Open House Attendee Telephone contact/ad response A Buyer who does NOT want representation IV. DUTIES AND SERVICES TO CUSTOMERS Duties to Customers • We must be honest. • We must use reasonable skill and care. • We must disclose material facts about the property and neighborhood that are known to us that affect the value of the property, except as otherwise provided by law. • We must be responsive to the customers' needs to the extent that those needs do not conflict with duties to Clients and the law. Houlihan l.owrence 3' Agem Operations Guidelines Nm•ember 2009 CONFIDENTIAL HL00150111 FILED: WESTCHESTER COUNTY CLERK 05/19/2021 INDEX01:15 NO. 60767/2018 PM NYSCEF DOC. NO. 673 RECEIVED NYSCEF: 05/19/2021 Services to Customers • We can explain real estate terms and practices. • We can screen properties. • We can show properties. • We can provide property information. • We can provide community infonnation. • We can present offers. • We can estimate costs. • We can recommend the use of experts. V. DUTIES TO BuYER AND SELLER CLIENTS Agency relationships are based upon one person's representing the best interest of another. Our Agency relationship with a Client is known as a Fiduciary relationship. A Fiduciary relationship is based on the highest level of trust. A. Duti~it.when acting as Agent for Seller OR Buyer I. Our Fiduciary duties are: a. UNDIVIDED loyalty to our Client b. Confidentiality c. Full Disclosure of anything known to affect the Client's best interests d. Obedience e. Reasonable care and skill in performing our duties f. A duty to account 2. When dealing with a Seller or Buyer Customer on behalf of our Seller or Buyer Client, we must: a. Exercise reasonable care and skill in perfonnance of our duties b. Deal honestly and in good faith c. Disclose all facts known to us materially affecting the value or desirability of the property, except as provided by law 3. Effective September 1, 2004 every agent must have completed a minimum of a three credit buyer agency class or pass the buyer agency class given by Houlihan Lawrence. B. Duties when actingjl..§.J,::mtsensual Dual Agent (Q!:.Seller and Buyer Clients As Consensual Dual Agents we CANNOT provide undivided loyalty to either Seller or Buyer Client. 1. We cannot disclose confidential information that we may know about Seller or Buyer regarding price, motivation to sell or to buy, or negotiating strategy, without written permission of Seller or Buyer. 2. We cannot recommend a price a Buyer should offer or pay; or Sell.er should counter or accept. However, we can provide information about comparable properties so that Seller and Buyer can make educated decisions. 3. We are still obligated to fulfill other duties described in VI.A section, provided that fulfilling that obligation does not compromise our duties to the other Client. Houlihm, Lawrence 38 Agent Opera/ions Guidelines November 2009 CONFIDENTIAL HL00150112 FILED: WESTCHESTER COUNTY CLERK 05/19/2021 INDEX01:15 NO. 60767/2018 PM NYSCEF DOC. NO. 673 RECEIVED NYSCEF: 05/19/2021 C. Se.rvices to Sellers a11d Buyers when acting as Agent for Buyer OR Seller; or as CQnsensual Dual Agent for Buyer or Seller. I. We can provide all of ,the services that we provide to our customers as described in Section V. D. Duties when acting as Designatfil!_h_g_ent for Seller and Buyer Clients. - ONLY on In-house transactions.after a new 443 form and Designated Agency form have been executed by bot!] Q!ients. I. We must remember the Fiduciary Duties, especially Confidentiality for BOTH clients, unless given WRITTEN consent to override. 2. We may providecomparablesand givelimited advice 011pricing or negotiating, encouraging Clients to make final decisions. 3. We may Counsel and Advocate for the Clients. VI. .PROCE.DURES Our Agency relatio11sh.ips with Sellers and Buyers need not be confusing if we follow some clear-cut procedures and explain them carefully to our Sellers and Buyers. A. Listings 1. Each listing agreement must contain the "Potential for Dua! Agency". 2. Explain Dual Agency to the Seller at the time the listing is taken. Obtain Seller's written authori7.ation to SHOW the Seller's property to Houlihan Lawrence Buyer Clients. Seller must also sign the NYS "Disclosure Regarding Real EstateRelationships". acknowledging that you represent the Seller. 3. The Designated Agency fom1 should also be shown to the Seller and explained at the time that the listing is taken. 4. At the time a Buyer is shown a property, always inform the Seller regarding who the selling agent is representing. B. Offers 1. If the Buyer is a Customer of Houlihan Lawrence; or a Buyer Customer of a Sub-Agent, the listing and selling salespersons will represent the Seller in the transaction. Agent presenting the offer will forward copy ofNYS Agency Disclosure document to the listing agent at the time of the offer. 2. If the Buyer is a Client from another firm, the Houlihan Lawrence Listing Salesperson will represent the Seller and the selling salesperson of the other firm wi!l represent the Buyer Client. The Listing Salesperson must ask for the signed copy of the NYS Agency Disclosure document at the time of the offer. 3. If the Buyer is a Client of Houlihan Lawrence, the listing and selling salespersons must obtain WRITTEN consent from Seller and Buyer to act as Designated Agents. A New NYS Agency Disclosure document must be completed, acknowledging that Houlihan Lawrence remains the Dual Agent in this transaction. DESIGNATED AGENTS ARE STILL BOUND BY FIDUCIARY DUTIES. 39 HouUhan Lawrence Agent OpOINT TO REMEMBER: A. About Consensual Dual Agency / Designated Agency The most important aspect of our policy isthat wewillbe offering Designated Agency, with Houlihan Lawrence remaining a Dual Agent, on in-house transactions. Both Sellers and Buyers have the right to select which representation they prefer. We must first obtain Seller Clients pennission to show our Buyer Clients the Sellers property, and be certain that they understand both Designated and Dual Agency. We must also obtain our Buyer Clients permission to show them properties of our Seller Clients, and be certain that they understand both Designated and Dual Agency. It is our policy to have the Listing Salesperson work with the Seller and the SeHing Salesperson work with the Buyer in a Dual and Designated Agency. Houlihan /Lawrence, the Company, will remain the dual agent. If the same Salesperson is working with the Seller and Buyer Clients, another Salesperson will work with one of the parties, with appropriate written consent, including a new NYS disclosure document and the executed Designated Agency document. B. t\,J;g_µt Confidentiality Confidences shared with you by a Client (Either Selleror Buyer)must bekept confidential forever .... even after you are no longer representing them. IN SUMMARY NEVER .FORGET THE 4 "D"s 1. ~; the appropriate Agency relationship must be determined at the beginning of each association. They do not happen accidentally. 2. DOCUMENT: in writing your agency/customer relationship. A. Buyers and Sellers must sign the NYS Agency Disclosure document stating whom you represent at the first substantive contact 41 Ho11/ihat1 Lawrence Agent Operations Guidelines November 2009 CONFIDENTIAL HL00150115 FILED: WESTCHESTER COUNTY CLERK 05/19/2021 INDEX01:15 NO. 60767/2018 PM NYSCEF DOC. NO. 673 RECEIVED NYSCEF: 05/19/2021 B. Designated Agency Agreements tn\lst also be signed with in-house transactions, if both Seller and Buyer are Clients of Houlihan Lawrence . C. A NEW NYS Agency Disclosure documents must be signed when entering into Dual Agency and this document must be forwarded to the agent on the other side of the transaction. 3. DISCLOSE: your agency relationship to all parties; Sellers, Buyers or other Brokers involved AT THE TIME OF THE FIRST SUBSTANTIVE CONTACT, including at the time of an offor. A. When making appointments for our listings or other brokers' listings, always state who If a Seller is present wl1ile showing the property, you are representing in the transaction. always let them know who you are representing. B. At the time that an offer is presented, hoth Listing and Selling agents MUST furnish the signed NYS Agency Disclosure Document to both Seller and Buyer. 4. DO AS YOU SAY: PROVIDE THE SERVICE TO SELLER AND BUYER THAT YOU HAVE PROMISED, AND THAT THEY EXPECT. IX. PURCHASE AND OR SALE OF REAL ESTATE BY HOULIHAN LAWRENCE SALES ASSOCIATES OR ASSOCIATE BROKJms I) All real estate transactions wherein a Houlihan Lawrence agent intends to act as a principal (Buyer or Seller), must be reported to agent's manager prior to commencement of any In the event agent's manager is unavailable, agent is to contact their Regional negotiations. Vice President. 2) All negotiations on behalf of agent with others are to be handled by another agent. This includes all dealings with a co-broker (listing or selling ageut), and other Houlihan Lawrence agents. X. PERSONAL SALE EXEMPTION Pul'chase and Sale of Primary Residcocc When an agent lists or buys a primary residence, the Company will waive one half of the company dollar on the action side of the transaction. The agent must be a full time, active agent who has been licensed for three consecutive years with Houlihan and has met desk costs for the previous year. Agent shall reimburse all marketing expenses incurred by Houlihan Lawrence , and fees due any other agent on the transaction shall also be paid in full inclusive of in-house bonus. 'Action' side is defined as either the purchase or sale side, whichever side agent is pursuing. Residence must be listed with us. This benefit is limited to use one time every three years. ALL OTHER AGENT PURCHASES I SALES OF PROPERTY ARE SUB.JECT TO CORPORATE REVIEW AND APPROVAL. 42 Houlihan Lmvrettce Agent Operations Guidelines Nm•ember 2009 CONFIDENTIAL HL00150116 FILED: WESTCHESTER COUNTY CLERK 05/19/2021 01:15 PM INDEX NO. 60767/2018 NYSCEF DOC. NO. 673 RECEIVED NYSCEF: 05/19/2021 EXHIBIT C FILED: WESTCHESTER COUNTY CLERK 05/19/2021 01:15 PM INDEX NO. 60767/2018 NYSCEF DOC. NO. 673 RECEIVED NYSCEF: 05/19/2021 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF WESTCHESTER --------------------------------------------------------------------X PAMELA GOLDSTEIN, ELLYN & TONY BERK, as Administrators DEFENDANT'S RESPONSES AND of the Estate of Winifred Berk, and PA UL OBJECTIONS TO PLAINTIFFS' BENJAMIN, on behalf of themselves FIRST SET OF INTERROGATORIES and all others similarly situated, Index No. 60767/2018 Plaintiffs, -against- Hon. Linda S. Jamieson HOULIHAN/LA WRENCE INC., Defendant. --------------------------------------------------------------------X Pursuant to Article 31 of the Civil Practice Law and Rules and Rule 11-a of the Commercial Division Rules, Houlihan Lawrence, Inc. ("Houlihan Lawrence"), by and through its attorneys, Collier Halpern & Newberg, LLP and Barnes & Thornburg LLP, as and for its responses to plaintiffs Pamela Goldstein, Ellyn and Tony Berk, and Paul Benjamin's ("Plaintiffs") First Set of Interrogatories dated November 4, 20 19 (the "Interrogatories"), states as follows: GENERAL OBJECTIONS 1. Houlihan Lawrence objects to the Inte1Togatories to the extent that they seek information that is not relevant to the issues in this case. 2. Houlihan Lawrence objects to the Interrogatories to the extent that they seek information that is not within the possession, custody or control of Houlihan Lawrence. 3. Houlihan Lawrence reserves the right to challenge the relevance, materiality and admissibility of its responses to the Interrogatories in any subsequent proceeding or the trialof this or any other action. FILED: WESTCHESTER COUNTY CLERK 05/19/2021 01:15 PM INDEX NO. 60767/2018 NYSCEF DOC. NO. 673 RECEIVED NYSCEF: 05/19/2021 4. To the extent that Houlihan Lawrence responds to Plaintiffs' Interrogatories, Houlihan Lawrence does not concede that the information is relevant to this action. Houlihan Lawrence expressly reserves the right to object to further discovery into the subject matter of any of the Interrogatories and the introduction into evidence of any response or portion thereof. 5. Houlihan Lawrence objects to the Interrogatories to the extent that they seek to impose duties and obligations upon Houlihan Lawrence in excess of those imposed by the Civil Practice Law and Rules and/or the Rules of the Commercial Division. 6. Houlihan Lawrence objects to the Interrogatories to the extent that they request information regarding "all" or " any" person(s), entity(ies) or document(s) on the grounds that such requests are vague, ambiguous, overly broad, unduly burdensome, oppressive and vexatious, and seek information that is neither relevant to the subject matter of this action nor reasonably calculated to lead to the discovery of admissible evidence. Subject to these objections, Houlihan Lawrence will construe these terms to mean that itis to use reasonable diligence to provide responsive info1mation within its possession, custody or control. Houlihan Lawrence reserves the right to rely on any facts, documents or other evidence which may develop or come to Houlihan Lawrence's attention subsequent hereto. Houlihan Lawrence's responses are set forth herein without prejudice to its right to assert additional objections or supplemental responses should it discover additional information or documents or grounds for objections. 7. Houlihan Lawrence reserves the right to modify, supplement or amend these responses at any time prior to trial of this action. 8. Houlihan Lawrence objects to the Interrogatories to the extent that they seek information that is personal, private, confidential or proprietary in nature. 2 FILED: WESTCHESTER COUNTY CLERK 05/19/2021 01:15 PM INDEX NO. 60767/2018 NYSCEF DOC. NO. 673 RECEIVED NYSCEF: 05/19/2021 9. Houlihan Lawrence incorporates each of the foregoing General Objections into its Specific Objections to each of the Interrogatories. No Specific Objection is intended to waive any General Objection. OBJECTIONS TO DEFINITIONS 1. Houlihan Lawrence objects to the definition of " Houlihan Lawrence" or "you" as overly broad and unduly burdensome, pmiicularly to the extent it purports to include " parents," " present or former owners," and other entities and persons not within Houlihan Lawrence's control. 2. Houlihan Lawrence objects to the definition of " Pocket Listings" as vague and ambiguous in its reference to a purported "practice of marketing properties off the multiple listing services." 3. Houlihan Lawrence objects to the definition of "Pre-MLS Marketing" as vague and ambiguous in its reference to a purported "practice of marketing properties before they are listed on the multiple listing service." SPECIFIC OBJECTIONS AND RESPONSES INTERROGATORYNO.1: Identify all persons who have, claim to have, or whom you believe may have knowledge or information relating to the creation, drafting, adoption, implementation of, or compliance with, the Houlihan Lawrence Agency Policy set forth in the document produced in this Action at HL 21202. RESPONSE TO INTERROGATORY NO. 1: Houlihan Lawrence objects to this Interrogatory upon the grounds that it is overbroad and unduly burdensome to the extent that it is not limited as to time frame. Houlihan Lawrence further objects upon the grounds that this Interrogatory seeks information that is more appropriately obtained through depositions. Subject 3 FILED: WESTCHESTER COUNTY CLERK 05/19/2021 01:15 PM INDEX NO. 60767/2018 NYSCEF DOC. NO. 673 RECEIVED NYSCEF: 05/19/2021 to and without waiving the foregoing objections, Houlihan Lawrence identifies one or more of the following persons: Annette Chrystal, Stephen Meyers, Chris Meyers, Debra Dalton, and/or Elizabeth Nunan. In addition, each office manager and each independent contractor agent plays a role in implementation of and compliance with policies. INTERROGATORY NO. 2: Identify all persons who have, claim to have, or whom you believe may have knowledge or information relating to the creation, drafting, adoption, implementation of, or compliance with, the Houlihan Lawrence Agency Disclosure Policy - New York set forth in the document produced at HL 2169. RESPONSE TO INTERROGATORY NO. 2: Houlihan Lawrence objects to this Interrogatory upon the grounds that it is overbroad and unduly burdensome to the extent that it is not limited as to time frame. Houlihan Lawrence further objects upon the grounds that this Interrogatory seeks information that is more appropriately obtained through depositions. Subject to and without waiving the foregoing objections, Houlihan Lawrence identifies one or more of the following persons: Annette Chrystal, Stephen Meyers, Chris Meyers, Debra Dalton, and/or Elizabeth Nunan. In addition, each office manager and each independent contractor agent plays a role in implementation of and compliance with policies. INTERROGATORY NO. 3: Identify all persons who have, claim to have , or whom you believe may have knowledge or information relating to the creation, drafting, adoption, implementation of, or compliance with, the "In-House Bonus" policy set forth in the Houlihan Lawrence Agent Company Operations Guidelines produced in this Action at HL 1668. RESPONSE TO INTERROGATORY NO. 3: Houlihan Lawrence objects to this Interrogatory upon the grounds that it is overbroad and unduly burdensome to the extent that it is not limited as to time frame. Houlihan Lawrence fm1her objects upon the ground