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BLEAKLEY PLATT & SCHMIDT, LLP
NEW YORK j CONNECTICUT
William P. Harrington
914.287.6104
wpharrington@bpslaw.com
March 2, 2022
Hon. Linda S. Jamieson
Supreme Court Justice
Westchester County Courthouse
111 Dr. Martin Luther King Jr. Blvd.
Courtroom 103, pt Floor
White Plains, NY 10601
Re: Goldstein v. Houlihan Lawrence
Index No.: 60767/2018
Dear Justice Jamieson:
As discussed at yesterday's status conference, attached is the 14th Report and
Recommendation to which the parties have consented.
WPH:sam
Encl.
cc: Jeremy Vest, Esq. (Ltr. Only via email)
Robert D. MacGill, Esq. (Ltr. Only via email)
Alfred E. Donnellan, Esq. (Ltr. Only via email)
PHONE : 914 .949.2700 I ONE NORTH LEXINGTON AVENUE I WHITE PLAINS, NEW YORK 10601 I FAX: 914.683 .6956
bpslaw.com
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF WESTCHESTER
PAMELA GOLDSTEIN, )
ELLYN & TONY BERK as Administrators of )
the Estate of Winifred Berk, and PAUL )
BENJAMIN, on behalf of themselves and all )
others similarly situated, ) Index No. 60767/2018
) Hon. Linda S. Jamieson
Plaintiffs, )
)
vs. )
)
HOULIHAN LAWRENCE INC., )
)
Defendant. )
)
FOURTEENTH REPORT AND RECOMMENDATION
OF DISCOVERY REFEREE
Based on proceedings to date and conferences with the parties on February 18 and March
1, 2022, the following recommendations are made for case management proceedings in the
merits phase in this action:
Potential Class Member Identification
1. Houlihan Lawrence shall produce electronic data or a list to identify potential class
members in this case within twenty (20) days following confirmation of this Report,
using the following parameters 1 :
a. The data or list should include, to the extent reasonably available: (1) the names
of potential class members; (2) last known mailing addresses; and (3) last known
email addresses. 2
1 Nothing in this document shall be construed as authorizing contact with class members.
2The Referee takes no position on the exact format of this data or list. Houlihan Lawrence should produce the data
or list in a reasonable format.
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b. The data or list shall be derived from information stored in the ordinary course of
business, and Houlihan Lawrence shall have no obligation to "encode" i.e., add,
data that is not already present in the ordinary course of business.
c. The data or list may be narrowed by using: (A) Plaintiffs' Class Certification
Motion Exhibit 90 and Exhibit 153; and/or (B) the current Class Definition,
NYSCEF 1072 at 19-20.
d. By supplying this data or list, Houlihan Lawrence does not admit that the persons
identified are appropriate members of the class, and Houlihan Lawrence reserves
all rights to move to remove individuals from the class and/or modify the class
definition. Further, Houlihan Lawrence reaffirms and incorporates by reference
the Court's so-ordered Stipulation on Arbitration, NYSCEF 368.
e. Plaintiffs have agreed to update the mailing addresses within the Potential Class
Member Data. Plaintiffs shall produce any such updated address list(s) to
Houlihan Lawrence upon their creation.
Document Discoverv
2. Document discovery demands by either party directed to: (1) Houlihan Lawrence, or (2)
Pamela Goldstein, Ellyn and Tony Berk, as Administrators of the Estate of Winifred
Berk, and/or Paul Benjamin ("Class Representatives") shall be served by March 21,
2022.
a. Document discovery demands seeking email or other ESI discovery, shall:
1. Specify the email custodians or other repository(ies) of information
requested to be searched, which number and identity shall be reasonable in
light of discovery to date;
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11. Specify the search terms requested to be run, which number shall be
reasonable in light of discovery to date, and each search term shall
encompass only one topic and shall be reasonable in length and topic;
b. The Discovery Referee shall adjudicate any dispute with respect to the discovery
demands.
3. The parties shall meet and confer and attempt to resolve disputes regarding document
discovery requests and production by March 28, 2022.
4. Pursuant to CPLR § 3120, the parties should be prepared to produce responsive, non-
privileged documents within thirty (30) days of service of the document demand. The
Referee will conduct a hearing on April 8, 2022 to address any issues relating to the
parties document demands.
5. The foregoing does not preclude or limit non-party fact discovery, if any, which shall be
governed by CPLR Article 31.
Deposition Discovery
6. The parties shall meet and confer and attempt to resolve disputes regarding deposition
discovery procedures and deadlines by March 28, 2022.
7. The Referee will conduct a hearing on April 8, 2022 to set a date for the substantial
completion of deposition discovery.
Expert Discovery
8. The parties shall conduct expert disclosure and discovery pursuant to Commercial
Division Rule 13.
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Motion to Modify the Class to Exclude Buyer Class Members3
9. Houlihan Lawrence shall move, pursuant to CPLR § 902, to amend the class definition
to exclude buyer class members by May 3, 2022.
10. Plaintiffs shall respond in opposition to Houlihan Lawrence's Motion to Exclude Buyer
Class Members by May 24, 2022.
11. Houlihan Lawrence shall reply in further support of its Motion to Exclude Buyer Class
Members by June 2, 2022.
Arbitration Signatories and Motion to Compel Arbitration
12. Houlihan Lawrence shall produce to Plaintiffs electronic data or documentation
identifying arbitration signatories within the current class definition by April 29, 2022.
13. Houlihan Lawrence shall move to compel arbitration by May 6, 2022.
14. Plaintiffs shall respond in opposition to Houlihan Lawrence's Motion to Compel
Arbitration by May 27, 2022.
15. Houlihan Lawrence shall reply in further support of its Motion to Compel Arbitration by
June 10, 2022.
Pro posed Class Member Notification and Form of Notice
16. Within fourteen (14) days following confirmation of this Report, the parties shall
begin to meet and confer to discuss issues regarding class notification.
17. The parties shall complete the meet and confer process by April 8, 2022.
3Houlihan Lawrence reserves its right to submit additional motions to modify the class at any time before the Court
issues a decision on the merits pursuant to CPLR § 902.
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18. Following the meet and confer process, on April 8, 2022, the Discovery Referee shall
hold a status conference to resolve outstanding issues regarding class notification
discovery.
19. Plaintiffs shall move to Authorize their Proposed Class Notice by May 6, 2022.
20. Houlihan Lawrence shall respond in opposition to Plaintiffs' Motion to Authorize
Proposed Class Notice by May 27, 2022.
21. Plaintiffs shall reply in support of their motion to Authorize Proposed Class Notice by
June 10, 2022.
Recurring Status Conference to Address Ongoing Discovery Issues
22. The Discovery Referee shall hold a virtual status conference on discovery and related
topics every three weeks, beginning on March 11, 2022, commencing at 10:00 a.m.
Within 48 hours of each conference, the parties shall advise the Discovery Referee via
email of issues to be addressed at the conference.
Other Deadlines
23. Discovery shall proceed notwithstanding the submission of the aforesaid motions.The
Discovery Referee shall hold a hearing promptly after the Court's decision on the above
motions to recommend the entry of the remaining case deadlines, including the close of
fact discovery.
CONCLUSION
I respectfully recommend that the Court adopt the foregoing as a scheduling
order.
Dated: White Plains, New York
_IAurt'b / , 2022 Harringt
Discovery Referee
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BLEAKLEY PLATT & SCHMIDT, LLP NEW YORK j CONNECTICUT William P. Harrington 914.287.6104 wpharrington@bpslaw.com March 2, 2022 Hon. Linda S. Jamieson Supreme Court Justice Westchester County Courthouse 111 Dr. Martin Luther King Jr. Blvd. Courtroom 103, pt Floor White Plains, NY 10601 Re: Goldstein v. Houlihan Lawrence Index No.: 60767/2018 Dear Justice Jamieson: As discussed at yesterday's status conference, attached is the 14th Report and Recommendation to which the parties have consented. WPH:sam Encl. cc: Jeremy Vest, Esq. (Ltr. Only via email) Robert D. MacGill, Esq. (Ltr. Only via email) Alfred E. Donnellan, Esq. (Ltr. Only via email) PHONE : 914 .949.2700 I ONE NORTH LEXINGTON AVENUE I WHITE PLAINS, NEW YORK 10601 I FAX: 914.683 .6956 bpslaw.com SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF WESTCHESTER PAMELA GOLDSTEIN, ) ELLYN & TONY BERK as Administrators of ) the Estate of Winifred Berk, and PAUL ) BENJAMIN, on behalf of themselves and all ) others similarly situated, ) Index No. 60767/2018 ) Hon. Linda S. Jamieson Plaintiffs, ) ) vs. ) ) HOULIHAN LAWRENCE INC., ) ) Defendant. ) ) FOURTEENTH REPORT AND RECOMMENDATION OF DISCOVERY REFEREE Based on proceedings to date and conferences with the parties on February 18 and March 1, 2022, the following recommendations are made for case management proceedings in the merits phase in this action: Potential Class Member Identification 1. Houlihan Lawrence shall produce electronic data or a list to identify potential class members in this case within twenty (20) days following confirmation of this Report, using the following parameters 1 : a. The data or list should include, to the extent reasonably available: (1) the names of potential class members; (2) last known mailing addresses; and (3) last known email addresses. 2 1 Nothing in this document shall be construed as authorizing contact with class members. 2The Referee takes no position on the exact format of this data or list. Houlihan Lawrence should produce the data or list in a reasonable format. 1 b. The data or list shall be derived from information stored in the ordinary course of business, and Houlihan Lawrence shall have no obligation to "encode" i.e., add, data that is not already present in the ordinary course of business. c. The data or list may be narrowed by using: (A) Plaintiffs' Class Certification Motion Exhibit 90 and Exhibit 153; and/or (B) the current Class Definition, NYSCEF 1072 at 19-20. d. By supplying this data or list, Houlihan Lawrence does not admit that the persons identified are appropriate members of the class, and Houlihan Lawrence reserves all rights to move to remove individuals from the class and/or modify the class definition. Further, Houlihan Lawrence reaffirms and incorporates by reference the Court's so-ordered Stipulation on Arbitration, NYSCEF 368. e. Plaintiffs have agreed to update the mailing addresses within the Potential Class Member Data. Plaintiffs shall produce any such updated address list(s) to Houlihan Lawrence upon their creation. Document Discoverv 2. Document discovery demands by either party directed to: (1) Houlihan Lawrence, or (2) Pamela Goldstein, Ellyn and Tony Berk, as Administrators of the Estate of Winifred Berk, and/or Paul Benjamin ("Class Representatives") shall be served by March 21, 2022. a. Document discovery demands seeking email or other ESI discovery, shall: 1. Specify the email custodians or other repository(ies) of information requested to be searched, which number and identity shall be reasonable in light of discovery to date; 2 11. Specify the search terms requested to be run, which number shall be reasonable in light of discovery to date, and each search term shall encompass only one topic and shall be reasonable in length and topic; b. The Discovery Referee shall adjudicate any dispute with respect to the discovery demands. 3. The parties shall meet and confer and attempt to resolve disputes regarding document discovery requests and production by March 28, 2022. 4. Pursuant to CPLR § 3120, the parties should be prepared to produce responsive, non- privileged documents within thirty (30) days of service of the document demand. The Referee will conduct a hearing on April 8, 2022 to address any issues relating to the parties document demands. 5. The foregoing does not preclude or limit non-party fact discovery, if any, which shall be governed by CPLR Article 31. Deposition Discovery 6. The parties shall meet and confer and attempt to resolve disputes regarding deposition discovery procedures and deadlines by March 28, 2022. 7. The Referee will conduct a hearing on April 8, 2022 to set a date for the substantial completion of deposition discovery. Expert Discovery 8. The parties shall conduct expert disclosure and discovery pursuant to Commercial Division Rule 13. 3 Motion to Modify the Class to Exclude Buyer Class Members3 9. Houlihan Lawrence shall move, pursuant to CPLR § 902, to amend the class definition to exclude buyer class members by May 3, 2022. 10. Plaintiffs shall respond in opposition to Houlihan Lawrence's Motion to Exclude Buyer Class Members by May 24, 2022. 11. Houlihan Lawrence shall reply in further support of its Motion to Exclude Buyer Class Members by June 2, 2022. Arbitration Signatories and Motion to Compel Arbitration 12. Houlihan Lawrence shall produce to Plaintiffs electronic data or documentation identifying arbitration signatories within the current class definition by April 29, 2022. 13. Houlihan Lawrence shall move to compel arbitration by May 6, 2022. 14. Plaintiffs shall respond in opposition to Houlihan Lawrence's Motion to Compel Arbitration by May 27, 2022. 15. Houlihan Lawrence shall reply in further support of its Motion to Compel Arbitration by June 10, 2022. Pro posed Class Member Notification and Form of Notice 16. Within fourteen (14) days following confirmation of this Report, the parties shall begin to meet and confer to discuss issues regarding class notification. 17. The parties shall complete the meet and confer process by April 8, 2022. 3Houlihan Lawrence reserves its right to submit additional motions to modify the class at any time before the Court issues a decision on the merits pursuant to CPLR § 902. 4 18. Following the meet and confer process, on April 8, 2022, the Discovery Referee shall hold a status conference to resolve outstanding issues regarding class notification discovery. 19. Plaintiffs shall move to Authorize their Proposed Class Notice by May 6, 2022. 20. Houlihan Lawrence shall respond in opposition to Plaintiffs' Motion to Authorize Proposed Class Notice by May 27, 2022. 21. Plaintiffs shall reply in support of their motion to Authorize Proposed Class Notice by June 10, 2022. Recurring Status Conference to Address Ongoing Discovery Issues 22. The Discovery Referee shall hold a virtual status conference on discovery and related topics every three weeks, beginning on March 11, 2022, commencing at 10:00 a.m. Within 48 hours of each conference, the parties shall advise the Discovery Referee via email of issues to be addressed at the conference. Other Deadlines 23. Discovery shall proceed notwithstanding the submission of the aforesaid motions.The Discovery Referee shall hold a hearing promptly after the Court's decision on the above motions to recommend the entry of the remaining case deadlines, including the close of fact discovery. CONCLUSION I respectfully recommend that the Court adopt the foregoing as a scheduling order. Dated: White Plains, New York _IAurt'b / , 2022 Harringt Discovery Referee 5