Preview
FILED: WESTCHESTER COUNTY CLERK 05/24/2021 12:11 PM INDEX NO. 60767/2018
NYSCEF DOC. NO. 679 RECEIVED NYSCEF: 05/24/2021
EXHIBIT B
FILED: WESTCHESTER COUNTY CLERK 05/24/2021 12:11 PM INDEX NO. 60767/2018
NYSCEF DOC. NO. 679 RECEIVED NYSCEF: 05/24/2021
From: Robert MacGill
Sent: Friday, May 21, 2021 11 :20 AM
To: William P. Harrington
Cc: Alfred Donnellan; Nelida Lara; Jeremy Vest; Courtney Rockett
Subject: Proposed Clarification and Call Times for Monday
CAUTION: This email originated from outside the firm. DO NOT reply to the message, click links or open attachments unless you recognize the
sender and know the content is safe. Call the sender instead if you are unsure whether the email is legitimate.
Bill,
Thank you for your time this morning. During the call with the parties, you requested that Houlihan Lawrence submit its
request for clarification of the Eleventh Report and Recommendation in an email.
The Eleventh Report recommends that Houlihan Lawrence produce the "Arlt custodial file." Houlihan Lawrence requests
the following two clarifications to the Eleventh Report.
1. The "Arlt custodial file" refers to the Arlt documents returned by "hits" on Plaintiffs' search terms. (Houlihan
Lawrence contends this is 101 search terms, Plaintiffs contend it is 6 search terms.)
2. Houlihan Lawrence has the right before producing the Arlt custodial file to review it for privilege and
responsiveness/relevance and is authorized to do so in this case.
We believe that these clarifications will conform the Eleventh Report to the traditional way e-discovery reviews have
been performed for years in every court.
You also requested that the parties provide their availability for a call on Monday. Houlihan Lawrence is available before
3pm on Monday.
Best regards.
Robert D. MacGill
MacGill PC
Circle Tower Building
55 Monument Circle
Suite 1200C
Indianapolis, IN 46204
317.442.3825
Robert.MacGill@MacGillLaw.com
www.MacGillLaw.com
P Please consider the environment before printing this email.
NOTICE: This email and any attachments are for the exclusive, confidential use of the intended recipient. We
do not waive attorney client or work product privilege by the transmission of this message. If you are not the
intended recipient, please: notify us immediately, delete this message, and refminfrom taking any action in
reliance on this message.
1
FILED: WESTCHESTER COUNTY CLERK 05/24/2021 12:11 PM INDEX NO. 60767/2018
NYSCEF DOC. NO. 679 RECEIVED NYSCEF: 05/24/2021
From: Vest, Jeremy
Sent: Friday, May 21, 2021 5:11 PM
To: Robert MacGill; William P. Harrington
Cc: Alfred Donnellan; Nelida Lara; Rockett, Courtney
Subject: RE: Proposed Clarification and Call Times for Monday
Attachments: Ex A.pdf; Ex B.pdf
I
Mr.
CAUTION: This email originated from outside the firm. DO NOT reply to the message, click links 01· open attachments unless you recognize the
sender and know the content is safe. Call the sender instead if you are unsure whether the email is legitimate.
Harrington,
I write in regards to HL's "request for clarification" of the Eleventh Report and Recommendation,
first made during this morning's teleconference, which, at HL's request, this Court limited in
advance to a discussion of the deposition schedule and class certification filing deadline due to
HL counsel's insufficient time to prepare to address issues pertaining to the 11th R&R. For the
reasons explained below and during this morning's impromptu discussion, HL's request should
be denied.
1. The 11th R&R does not require "clarification"
The 11th R&R (3) is clear and ambiguous: "I recommend that plaintiffs' motion to compel be
granted."
In their May 4 motion (3), Plaintiffs requested a Report and Recommendation that clearly
acknowledged HL's right to withhold non-privileged documents but otherwise compelled HL to
produce any document, or its attachment, that hit on one of Plaintiffs' search terms-whether
HL considered them responsive or not:
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.
Rather than confront the full scope of relief sought by Plaintiffs, in its May 12 opposition (6), HL
instead tried to pretend it away, arguing that complying with Plaintiffs' motion would be cost
prohibitive, including because "Plaintiffs would likely request an in camera review of the non-
responsive documents."
Recognizing HL's sleight-of-hand and the "ambiguity" that HL sought to create, in their May 13
reply (3-4), Plaintiffs could not have been more clear about what relief they sought and why:
HL warns of additional costs because Plaintiffs 'would likely request an in
camera review of the non-responsive documents.' But Plaintiffs' motion
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FILED: WESTCHESTER COUNTY CLERK 05/24/2021 12:11 PM INDEX NO. 60767/2018
NYSCEF DOC. NO. 679 RECEIVED NYSCEF: 05/24/2021
anticipates that issue - consistent with the Sixth and Seventh R&Rs,
Plaintiffs (3) sought an order 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 Plaintiffs' search terms. In other words, this
Court should not permit HL to withhold documents based on their purported
non-responsiveness given the exigent circumstances created by HL's
untimely disclosure of Mr. Arlt's importance, HL's emphasis on avoiding
unnecessary costs and delay, and the protections afforded by the Court-
ordered confidentiality agreement.
HL had a full and fair opportunity to brief this issue, yet nowhere in its submission did it raise
the purported confidentiality concerns that it now puts forward as the sole basis for
"clarification" of the 11th R&R to permit it to withhold Arlt documents that it deems to be non-
respons1ve.
Given that HL withheld 97% of the Gricar documents, 98% of the Dalton documents, and 99% of
the In-House Bonus e-mails, allowing it to review Arlt's documents for "responsiveness" is
tantamount to a reversal of the 11th R&R without legal justification or procedure.
2. This Court has rejected HL's confidentiality concerns
HL likely refrained from advancing its confidentiality argument in response to Plaintiffs' motion
because it had failed twice before. In the Sixth R&R (4), which directed Houlihan Lawrence to
produce the sample set of In-House Bonus e-mails in toto, this Court ruled:
Any concerns HLI has can be addressed by the standing confidentiality order
and produced pursuant thereto.
Three days later, in the Seventh R&R (5-6), which directed HL to produce all remaining In-
House Bonus e-mails and every Dalton Document that hit on one of Plaintiffs' search terms, this
Court again recognized that HL's confidentiality concerns did not necessitate a responsiveness
review:
Any confidentiality concerns can be address[ed] by the standing
Confidentiality Order.
While HL today contended that it would be "legal malpractice" to produce Mr. Arlt's custodial
documents without a responsiveness review, HL produced the Dalton Documents in response to
the Seventh R&R without availing itself of the opportunity afforded to it by this Court to submit
the purported non-responsive documents for in camera review.
Given the foregoing, the law of the case doctrine precludes reconsideration of HL's confidentiality
concerns. Erickson v. Cross Ready Mix, Inc., 98 A.D.3d 717, 717 (2d Dep't 2012) ("The doctrine of
the 'law of the case' is a rule of practice, an articulation of sound policy that, when an issue is
once judicially determined, that should be the encl of the matter as far as J uclges and courts of co-
ordinate jurisdiction are concerned.") (quoting Martin v. City of Cohoes, 37 N.Y.2d 162, 165
(1975).
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FILED: WESTCHESTER COUNTY CLERK 05/24/2021 12:11 PM INDEX NO. 60767/2018
NYSCEF DOC. NO. 679 RECEIVED NYSCEF: 05/24/2021
3. This Court has repeatedly recognized that HL has withheld responsive
documents
The directive that HL collect and produce any non-privileged document, or its attachment, that
hit on one of Plaintiffs' search terms is supported by this Court's repeated prior finding that HL
withheld numerous responsive documents from multiple productions across several custodians.
Following an in camera review conducted by this Court, the Sixth R&R found that HL had
withheld numerous emails that "are relevant to plaintiffs' claims of HLI's alleged pervasive
institutional promotion of the dual agency in house bonus program." In fact, HL's production
was so deficient that, in the Sixth and Seventh R&Rs, this Court directed HL to produce all
16,485 In-House Bonus e-mails-without giving it any further opportunity to review those e-
mails for responsiveness.
Similarly, in the Seventh R&R, after Plaintiffs demonstrated that HL had inexplicably withheld
98% of the Dalton Documents that hit on Plaintiffs' search terms, this Court ordered (5-6) HL to
produce every one of the 6,340 withheld Dalton Documents-again, without giving HL a second
bite of the apple.
Any doubt about whether HL was using an appropriate responsiveness standard to select
documents for production was resolved when HL complied with those directives and Plaintiffs
discovered a treasure trove of key responsive documents.
HL's November 9, 2020 compelled production of In-House Bonus e-mails included the following
e-mails that HL had previously marked non-responsive:
• Bronxville Manager to Bronxville Agent: "He should realize that our sales force will
be more motivated if it's listed with us because we love to sell our own listings." (HL
115382)
• White Plains Manager to White Plains Agent: "Believe me, what manager doesn't
want an in house deal and what agent doesn't want an in house bonus." (HL 89999)
• Scarsdale Agent to Scarsdale Agent: "You can get the bonus!!!!!!!!! And you do not
have to share the bonus with anyone!!!!!!!! Great!!!!!" (HL 125010)
HL's November 24, 2020 compelled production of Dalton Documents included the following e-
mails that HL had also previously marked non-responsive:
• Dalton to White Plains Manager: "Amazing. So many great in house deals." (HL
148774)
• Dalton to New Rochelle Manager: "You are giving bronnxville [sic] a run for in house
deals. Good work." (HL 148445)
• Dalton to HL Agents: "We continue to have success with in house deals." (HL 137616)
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FILED: WESTCHESTER COUNTY CLERK 05/24/2021 12:11 PM INDEX NO. 60767/2018
NYSCEF DOC. NO. 679 RECEIVED NYSCEF: 05/24/2021
HL's insistence this morning that Arlt's e-mail condemning the In-House Bonus as a breach of
HL's fiduciary duty is irrelevant proves that nothing has changed. Plaintiffs and this Court still
cannot count on HL to identify the documents that are subject to production.
It is not "speculation" or a "gratuitous attack on counsel" to point out that HL has repeatedly
withheld responsive documents. It is a judicially determined fact that should guide this Court in
denying HL's request to "clarify" the 11th R&R to give it another shot to review documents for
responsiveness.
4. Plaintiffs' search terms are tailored to identify relevant documents
As the 11th R&R recognized, this Court has previously "sustained the propriety" of the search
terms that Plaintiffs propose to use for the Arlt collection and they are the same ones that HL
agreed to use for the Dalton collection. This morning, Plaintiffs refuted HL's unsubstantiated
speculation that their search terms would result in a "waterfall" of Arlt documents larger than
"you can even imagine" by comparing the Chrystal and Dalton collections. A comparison of the
number of documents plus attachments collected from Ms. Chrystal's custodial file using
Plaintiffs' original simple search terms (17,383) versus those collected from Ms. Dalton's
custodial file using the purported "101 search terms" (12,396) shows that Plaintiffs' search terms
and proximity limiters are state-of-the-art-not overbroad or excessive. Compare Exs. A
(Chrystal search term hit count) and B (Dalton search term hit count). The only evidence before
this Court shows that there is no need for "clarification" of the 11th R&R to prevent voluminous
production of non-responsive material.
5. The totality of the circumstances support the 11th R&R
The 11th R&R (3) recognized "the tortured discovery history of the case." There is no reason to
make it more so when "[t]he finish line is in sight." Prompt completion of the Arlt production is
essential to ensure the parties remain on schedule to complete briefing on Plaintiffs' motion for
class certification by the end of the year. Permitting HL to review Arlt's documents for
responsiveness is certain to cause delay, because Plaintiffs have good reason to question the
reliability of ,:my such review, having been "burned before," as this Court recognized this
morning, including by the still unexplained absence of Arlt's In-House Bonus email from the
Dalton production.
Regards,
Jeremy
From: Robert MacGill
Sent: Friday, May 21, 202111:20 AM
To: William Harrington
Cc: Alfred Donnellan ; Nelida Lara ; Vest, Jeremy ;
Rockett, Courtney
Subject: Proposed Clarification and Call Times for Monday
4
FILED: WESTCHESTER COUNTY CLERK 05/24/2021 12:11 PM INDEX NO. 60767/2018
NYSCEF DOC. NO. 679 RECEIVED NYSCEF: 05/24/2021
Bill,
Thank you for your time this morning. During the call with the parties, you requested that Houlihan Lawrence
submit its request for clarification of the Eleventh Report and Recommendation in an email.
The Eleventh Report recommends that Houlihan Lawrence produce the "Arlt custodial file." Houlihan
Lawrence requests the following two clarifications to the Eleventh Report.
1. The "Arlt custodial file" refers to the Arlt documents returned by "hits" on Plaintiffs' search terms.
(Houlihan Lawrence contends this is 101 search terms, Plaintiffs contend it is 6 search terms.)
2. Houlihan Lawrence has the right before producing the Arlt custodial file to review it for privilege and
responsiveness/relevance and is authorized to do so in this case.
We believe that these clarifications will conform the Eleventh Report to the traditional way e-discovery reviews
have been performed for years in every court.
You also requested that the parties provide their availability for a call on Monday. Houlihan Lawrence is
available before 3pm on Monday.
Best regards.
Robert D. MacGill
MacGill PC
Circle Tower Building
5 5 Monument Circle
Suite 1200C
Indianapolis, IN 46204
317.442.3825
Robert.MacGill@MacGillLaw.com
www.MacGillLaw.com
P Please consider the environment before printing this email.
NOTICE: This email and any attachments are for the exclusive, confidential use of the intended
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message. If you are not the intended recipient, please: notify us immediately, delete this message,
and refrainfrom talcing any action in reliance on this message.
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FILED: WESTCHESTER COUNTY CLERK 05/24/2021 12:11 PM INDEX NO. 60767/2018
NYSCEF DOC. NO. 679 RECEIVED NYSCEF: 05/24/2021
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FILED: WESTCHESTER COUNTY CLERK 05/24/2021 12:11 PM INDEX NO. 60767/2018
NYSCEF DOC. NO. 679 RECEIVED NYSCEF: 05/24/2021
FILED: WESTCHESTER COUNTY CLERK 05/24/2021 12:11 PM INDEX NO. 60767/2018
NYSCEF DOC. NO. 679 RECEIVED NYSCEF: 05/24/2021
From: Lindemann, Jessica
Sent: Monday, January 27, 2020 2:41 PM
To: Jeremy Vest ; Paul Fattaruso
Cc: William Ohlemeyer ; MacGill, Robert ; Philip Halpern
; Shari Hochberg
Subject: Goldstein v. Houlihan et al.
CAUTION: External email. Please do not respond to or click on links/attachments unless you recognize the sender.
Mr. Vest,
Below are hit count reports for the specific terms searched for Ms. Chrystal and Mr. Gricar.
Toni Chrystal
DETAILS
Keyword Hits Documents This Term Only Family Members
"agen* w/5 disclos*" 0 0 0 0
"Designated agen*" 6,824 1,017 306 1,735
"Dual agen*" 54,694 2,298 1,984 2,091
"Grow* w/5 strategy" 0 0 0 0
"In house" or "In-house" 6,468 1,365 1,816 1,786
"Market Share" 1,491 876 2,276 1,008
Bonus and commission 339 186 525 459
Bonus w/3 "in-house" 180 34 0 165
Fiduciary 8,938 1,723 954 2,061
Team w/20 (polic* or rul*) 635 241 639 338
Jim Gricar
DETAILS
Keyword Hits Documents This Term Only Family Members
"agen* w/5 disclos*" 0 0 0 0
"Designated agen*" 328 87 306 98
"Dual agen*" 3,158 182 1,984 162
"Grow* w/5 strategy" 0 0 0 0
"In house" or "In-house" 1,474 345 1,816 192
"Market Share" 1,472 833 2,276 291
FILED: WESTCHESTER COUNTY CLERK 05/24/2021 12:11 PM INDEX NO. 60767/2018
NYSCEF DOC. NO. 679 RECEIVED NYSCEF: 05/24/2021
Bonus and commission 160 112 525 63
Bonus w/3 "in-house" 27 9 0 7
Fiduciary 653 213 954 194
Team w/20 (polic* or rul*) 507 102 639 43
Best,
Jess
Jessica Lindemann I Partner
i3arncs 8l ThorntJur
Preview
FILED: WESTCHESTER COUNTY CLERK 05/24/2021 12:11 PM INDEX NO. 60767/2018 NYSCEF DOC. NO. 679 RECEIVED NYSCEF: 05/24/2021 EXHIBIT B FILED: WESTCHESTER COUNTY CLERK 05/24/2021 12:11 PM INDEX NO. 60767/2018 NYSCEF DOC. NO. 679 RECEIVED NYSCEF: 05/24/2021 From: Robert MacGill Sent: Friday, May 21, 2021 11 :20 AM To: William P. Harrington Cc: Alfred Donnellan; Nelida Lara; Jeremy Vest; Courtney Rockett Subject: Proposed Clarification and Call Times for Monday CAUTION: This email originated from outside the firm. DO NOT reply to the message, click links or open attachments unless you recognize the sender and know the content is safe. Call the sender instead if you are unsure whether the email is legitimate. Bill, Thank you for your time this morning. During the call with the parties, you requested that Houlihan Lawrence submit its request for clarification of the Eleventh Report and Recommendation in an email. The Eleventh Report recommends that Houlihan Lawrence produce the "Arlt custodial file." Houlihan Lawrence requests the following two clarifications to the Eleventh Report. 1. The "Arlt custodial file" refers to the Arlt documents returned by "hits" on Plaintiffs' search terms. (Houlihan Lawrence contends this is 101 search terms, Plaintiffs contend it is 6 search terms.) 2. Houlihan Lawrence has the right before producing the Arlt custodial file to review it for privilege and responsiveness/relevance and is authorized to do so in this case. We believe that these clarifications will conform the Eleventh Report to the traditional way e-discovery reviews have been performed for years in every court. You also requested that the parties provide their availability for a call on Monday. Houlihan Lawrence is available before 3pm on Monday. Best regards. Robert D. MacGill MacGill PC Circle Tower Building 55 Monument Circle Suite 1200C Indianapolis, IN 46204 317.442.3825 Robert.MacGill@MacGillLaw.com www.MacGillLaw.com P Please consider the environment before printing this email. NOTICE: This email and any attachments are for the exclusive, confidential use of the intended recipient. We do not waive attorney client or work product privilege by the transmission of this message. If you are not the intended recipient, please: notify us immediately, delete this message, and refminfrom taking any action in reliance on this message. 1 FILED: WESTCHESTER COUNTY CLERK 05/24/2021 12:11 PM INDEX NO. 60767/2018 NYSCEF DOC. NO. 679 RECEIVED NYSCEF: 05/24/2021 From: Vest, Jeremy Sent: Friday, May 21, 2021 5:11 PM To: Robert MacGill; William P. Harrington Cc: Alfred Donnellan; Nelida Lara; Rockett, Courtney Subject: RE: Proposed Clarification and Call Times for Monday Attachments: Ex A.pdf; Ex B.pdf I Mr. CAUTION: This email originated from outside the firm. DO NOT reply to the message, click links 01· open attachments unless you recognize the sender and know the content is safe. Call the sender instead if you are unsure whether the email is legitimate. Harrington, I write in regards to HL's "request for clarification" of the Eleventh Report and Recommendation, first made during this morning's teleconference, which, at HL's request, this Court limited in advance to a discussion of the deposition schedule and class certification filing deadline due to HL counsel's insufficient time to prepare to address issues pertaining to the 11th R&R. For the reasons explained below and during this morning's impromptu discussion, HL's request should be denied. 1. The 11th R&R does not require "clarification" The 11th R&R (3) is clear and ambiguous: "I recommend that plaintiffs' motion to compel be granted." In their May 4 motion (3), Plaintiffs requested a Report and Recommendation that clearly acknowledged HL's right to withhold non-privileged documents but otherwise compelled HL to produce any document, or its attachment, that hit on one of Plaintiffs' search terms-whether HL considered them responsive or not: 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. Rather than confront the full scope of relief sought by Plaintiffs, in its May 12 opposition (6), HL instead tried to pretend it away, arguing that complying with Plaintiffs' motion would be cost prohibitive, including because "Plaintiffs would likely request an in camera review of the non- responsive documents." Recognizing HL's sleight-of-hand and the "ambiguity" that HL sought to create, in their May 13 reply (3-4), Plaintiffs could not have been more clear about what relief they sought and why: HL warns of additional costs because Plaintiffs 'would likely request an in camera review of the non-responsive documents.' But Plaintiffs' motion 1 FILED: WESTCHESTER COUNTY CLERK 05/24/2021 12:11 PM INDEX NO. 60767/2018 NYSCEF DOC. NO. 679 RECEIVED NYSCEF: 05/24/2021 anticipates that issue - consistent with the Sixth and Seventh R&Rs, Plaintiffs (3) sought an order 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 Plaintiffs' search terms. In other words, this Court should not permit HL to withhold documents based on their purported non-responsiveness given the exigent circumstances created by HL's untimely disclosure of Mr. Arlt's importance, HL's emphasis on avoiding unnecessary costs and delay, and the protections afforded by the Court- ordered confidentiality agreement. HL had a full and fair opportunity to brief this issue, yet nowhere in its submission did it raise the purported confidentiality concerns that it now puts forward as the sole basis for "clarification" of the 11th R&R to permit it to withhold Arlt documents that it deems to be non- respons1ve. Given that HL withheld 97% of the Gricar documents, 98% of the Dalton documents, and 99% of the In-House Bonus e-mails, allowing it to review Arlt's documents for "responsiveness" is tantamount to a reversal of the 11th R&R without legal justification or procedure. 2. This Court has rejected HL's confidentiality concerns HL likely refrained from advancing its confidentiality argument in response to Plaintiffs' motion because it had failed twice before. In the Sixth R&R (4), which directed Houlihan Lawrence to produce the sample set of In-House Bonus e-mails in toto, this Court ruled: Any concerns HLI has can be addressed by the standing confidentiality order and produced pursuant thereto. Three days later, in the Seventh R&R (5-6), which directed HL to produce all remaining In- House Bonus e-mails and every Dalton Document that hit on one of Plaintiffs' search terms, this Court again recognized that HL's confidentiality concerns did not necessitate a responsiveness review: Any confidentiality concerns can be address[ed] by the standing Confidentiality Order. While HL today contended that it would be "legal malpractice" to produce Mr. Arlt's custodial documents without a responsiveness review, HL produced the Dalton Documents in response to the Seventh R&R without availing itself of the opportunity afforded to it by this Court to submit the purported non-responsive documents for in camera review. Given the foregoing, the law of the case doctrine precludes reconsideration of HL's confidentiality concerns. Erickson v. Cross Ready Mix, Inc., 98 A.D.3d 717, 717 (2d Dep't 2012) ("The doctrine of the 'law of the case' is a rule of practice, an articulation of sound policy that, when an issue is once judicially determined, that should be the encl of the matter as far as J uclges and courts of co- ordinate jurisdiction are concerned.") (quoting Martin v. City of Cohoes, 37 N.Y.2d 162, 165 (1975). 2 FILED: WESTCHESTER COUNTY CLERK 05/24/2021 12:11 PM INDEX NO. 60767/2018 NYSCEF DOC. NO. 679 RECEIVED NYSCEF: 05/24/2021 3. This Court has repeatedly recognized that HL has withheld responsive documents The directive that HL collect and produce any non-privileged document, or its attachment, that hit on one of Plaintiffs' search terms is supported by this Court's repeated prior finding that HL withheld numerous responsive documents from multiple productions across several custodians. Following an in camera review conducted by this Court, the Sixth R&R found that HL had withheld numerous emails that "are relevant to plaintiffs' claims of HLI's alleged pervasive institutional promotion of the dual agency in house bonus program." In fact, HL's production was so deficient that, in the Sixth and Seventh R&Rs, this Court directed HL to produce all 16,485 In-House Bonus e-mails-without giving it any further opportunity to review those e- mails for responsiveness. Similarly, in the Seventh R&R, after Plaintiffs demonstrated that HL had inexplicably withheld 98% of the Dalton Documents that hit on Plaintiffs' search terms, this Court ordered (5-6) HL to produce every one of the 6,340 withheld Dalton Documents-again, without giving HL a second bite of the apple. Any doubt about whether HL was using an appropriate responsiveness standard to select documents for production was resolved when HL complied with those directives and Plaintiffs discovered a treasure trove of key responsive documents. HL's November 9, 2020 compelled production of In-House Bonus e-mails included the following e-mails that HL had previously marked non-responsive: • Bronxville Manager to Bronxville Agent: "He should realize that our sales force will be more motivated if it's listed with us because we love to sell our own listings." (HL 115382) • White Plains Manager to White Plains Agent: "Believe me, what manager doesn't want an in house deal and what agent doesn't want an in house bonus." (HL 89999) • Scarsdale Agent to Scarsdale Agent: "You can get the bonus!!!!!!!!! And you do not have to share the bonus with anyone!!!!!!!! Great!!!!!" (HL 125010) HL's November 24, 2020 compelled production of Dalton Documents included the following e- mails that HL had also previously marked non-responsive: • Dalton to White Plains Manager: "Amazing. So many great in house deals." (HL 148774) • Dalton to New Rochelle Manager: "You are giving bronnxville [sic] a run for in house deals. Good work." (HL 148445) • Dalton to HL Agents: "We continue to have success with in house deals." (HL 137616) 3 FILED: WESTCHESTER COUNTY CLERK 05/24/2021 12:11 PM INDEX NO. 60767/2018 NYSCEF DOC. NO. 679 RECEIVED NYSCEF: 05/24/2021 HL's insistence this morning that Arlt's e-mail condemning the In-House Bonus as a breach of HL's fiduciary duty is irrelevant proves that nothing has changed. Plaintiffs and this Court still cannot count on HL to identify the documents that are subject to production. It is not "speculation" or a "gratuitous attack on counsel" to point out that HL has repeatedly withheld responsive documents. It is a judicially determined fact that should guide this Court in denying HL's request to "clarify" the 11th R&R to give it another shot to review documents for responsiveness. 4. Plaintiffs' search terms are tailored to identify relevant documents As the 11th R&R recognized, this Court has previously "sustained the propriety" of the search terms that Plaintiffs propose to use for the Arlt collection and they are the same ones that HL agreed to use for the Dalton collection. This morning, Plaintiffs refuted HL's unsubstantiated speculation that their search terms would result in a "waterfall" of Arlt documents larger than "you can even imagine" by comparing the Chrystal and Dalton collections. A comparison of the number of documents plus attachments collected from Ms. Chrystal's custodial file using Plaintiffs' original simple search terms (17,383) versus those collected from Ms. Dalton's custodial file using the purported "101 search terms" (12,396) shows that Plaintiffs' search terms and proximity limiters are state-of-the-art-not overbroad or excessive. Compare Exs. A (Chrystal search term hit count) and B (Dalton search term hit count). The only evidence before this Court shows that there is no need for "clarification" of the 11th R&R to prevent voluminous production of non-responsive material. 5. The totality of the circumstances support the 11th R&R The 11th R&R (3) recognized "the tortured discovery history of the case." There is no reason to make it more so when "[t]he finish line is in sight." Prompt completion of the Arlt production is essential to ensure the parties remain on schedule to complete briefing on Plaintiffs' motion for class certification by the end of the year. Permitting HL to review Arlt's documents for responsiveness is certain to cause delay, because Plaintiffs have good reason to question the reliability of ,:my such review, having been "burned before," as this Court recognized this morning, including by the still unexplained absence of Arlt's In-House Bonus email from the Dalton production. Regards, Jeremy From: Robert MacGill Sent: Friday, May 21, 202111:20 AM To: William Harrington Cc: Alfred Donnellan ; Nelida Lara ; Vest, Jeremy ; Rockett, Courtney Subject: Proposed Clarification and Call Times for Monday 4 FILED: WESTCHESTER COUNTY CLERK 05/24/2021 12:11 PM INDEX NO. 60767/2018 NYSCEF DOC. NO. 679 RECEIVED NYSCEF: 05/24/2021 Bill, Thank you for your time this morning. During the call with the parties, you requested that Houlihan Lawrence submit its request for clarification of the Eleventh Report and Recommendation in an email. The Eleventh Report recommends that Houlihan Lawrence produce the "Arlt custodial file." Houlihan Lawrence requests the following two clarifications to the Eleventh Report. 1. The "Arlt custodial file" refers to the Arlt documents returned by "hits" on Plaintiffs' search terms. (Houlihan Lawrence contends this is 101 search terms, Plaintiffs contend it is 6 search terms.) 2. Houlihan Lawrence has the right before producing the Arlt custodial file to review it for privilege and responsiveness/relevance and is authorized to do so in this case. We believe that these clarifications will conform the Eleventh Report to the traditional way e-discovery reviews have been performed for years in every court. You also requested that the parties provide their availability for a call on Monday. Houlihan Lawrence is available before 3pm on Monday. Best regards. Robert D. MacGill MacGill PC Circle Tower Building 5 5 Monument Circle Suite 1200C Indianapolis, IN 46204 317.442.3825 Robert.MacGill@MacGillLaw.com www.MacGillLaw.com P Please consider the environment before printing this email. NOTICE: This email and any attachments are for the exclusive, confidential use of the intended recipient. We do not waive attorney client or worlc product privilege by the transmission of this message. If you are not the intended recipient, please: notify us immediately, delete this message, and refrainfrom talcing any action in reliance on this message. cw cm!FIDENTI/\LITY: ST/\TE:fvll'f,ff T!10 !nformallun cont~1ined in this e!nctronic trH:;~;sciqe and any ath:-1clm1ents ·\·o this rnPssaqt~ z:1re inleitded for 1hf; exclusivo usB of the ad(fressee{~:,) and conlJin conliclenliel or privilnoeli information. If you no1 U1c n~clplc:nL or the person responsible tor dcHvE:ri11~1 the cornail lo lr1e in1e11cl0,ll rncipienl. 110 aclvii;ed 11,we rer;eivecl tllis 111ess,1q," in error "111cJ trwt u;-:u, forwardinq, pri11li1,u. ur copyinq i,-; F'lea;;e notify \he Mintz, Levin, Cohn. ,'orris. (3lovsh.y sender immediately, and destroy 2111 copie;; of this message and any at1acl1rnents. 5 FILED: WESTCHESTER COUNTY CLERK 05/24/2021 12:11 PM INDEX NO. 60767/2018 NYSCEF DOC. NO. 679 RECEIVED NYSCEF: 05/24/2021 6 FILED: WESTCHESTER COUNTY CLERK 05/24/2021 12:11 PM INDEX NO. 60767/2018 NYSCEF DOC. NO. 679 RECEIVED NYSCEF: 05/24/2021 FILED: WESTCHESTER COUNTY CLERK 05/24/2021 12:11 PM INDEX NO. 60767/2018 NYSCEF DOC. NO. 679 RECEIVED NYSCEF: 05/24/2021 From: Lindemann, Jessica Sent: Monday, January 27, 2020 2:41 PM To: Jeremy Vest ; Paul Fattaruso Cc: William Ohlemeyer ; MacGill, Robert ; Philip Halpern ; Shari Hochberg Subject: Goldstein v. Houlihan et al. CAUTION: External email. Please do not respond to or click on links/attachments unless you recognize the sender. Mr. Vest, Below are hit count reports for the specific terms searched for Ms. Chrystal and Mr. Gricar. Toni Chrystal DETAILS Keyword Hits Documents This Term Only Family Members "agen* w/5 disclos*" 0 0 0 0 "Designated agen*" 6,824 1,017 306 1,735 "Dual agen*" 54,694 2,298 1,984 2,091 "Grow* w/5 strategy" 0 0 0 0 "In house" or "In-house" 6,468 1,365 1,816 1,786 "Market Share" 1,491 876 2,276 1,008 Bonus and commission 339 186 525 459 Bonus w/3 "in-house" 180 34 0 165 Fiduciary 8,938 1,723 954 2,061 Team w/20 (polic* or rul*) 635 241 639 338 Jim Gricar DETAILS Keyword Hits Documents This Term Only Family Members "agen* w/5 disclos*" 0 0 0 0 "Designated agen*" 328 87 306 98 "Dual agen*" 3,158 182 1,984 162 "Grow* w/5 strategy" 0 0 0 0 "In house" or "In-house" 1,474 345 1,816 192 "Market Share" 1,472 833 2,276 291 FILED: WESTCHESTER COUNTY CLERK 05/24/2021 12:11 PM INDEX NO. 60767/2018 NYSCEF DOC. NO. 679 RECEIVED NYSCEF: 05/24/2021 Bonus and commission 160 112 525 63 Bonus w/3 "in-house" 27 9 0 7 Fiduciary 653 213 954 194 Team w/20 (polic* or rul*) 507 102 639 43 Best, Jess Jessica Lindemann I Partner i3arncs 8l ThorntJur