Preview
FILED: WESTCHESTER COUNTY CLERK 07/20/2022 03:57 PM INDEX NO. 60767/2018
NYSCEF DOC. NO. 1434 RECEIVED NYSCEF: 07/20/2022
EXHIBIT 5
(REDACTED)
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BEFORE THE DISCOVERY REFEREE
WILLIAM P. HARRINGTON
WESTCHESTER COUNTY, NEW YORK SUPREME COURT
PAMELA GOLDSTEIN, )
ELLYN & TONY BERK, AS ADMINISTRATORS )
OF THE ESTATE OF WINNIFRED BERK, AND ) CASE NO. 60767/2018
PAUL BENJAMIN, ON BEHALF OF THEMSELVES )
AND ALL OTHERS SIMILARLY SITUATED, )
) DISCOVERY REFEREE MOTION:
PLAINTIFFS, ) NO. 16-001
)
V. )
)
HOULIHAN/LAWRENCE, INC., )
)
DEFENDANT. )
HOULIHAN LAWRENCE’S MOTION FOR ORAL ARGUMENT ON MOTION
SEQUENCE SIXTEEN (No. 16-001)
Pursuant to Part 202.8-f(b) of the Uniform Rules for the Supreme Court & the County
Court, Houlihan Lawrence respectfully requests oral argument before the Discovery Referee on
Motions 16-002, 16-003, 16-004, 16-005, 16-006, 16-007, 16-008, 16-009, 16-010, 16-011, 16-
012, 16-013, 16-014, 16-015, 16-016, 16-017, and 16-018, once briefing has completed on those
Motions.
Due to the volume, breadth, and importance of Plaintiffs’ new requests, Houlihan
Lawrence requests that the Referee issue a formal agenda before each oral argument describing
the specific Motions to be heard and the order in which they will be heard.
Dated: May 19, 2022 /s/Robert D. MacGill
Robert D. MacGill (pro hac vice)
Matthew T. Ciulla (pro hac vice)
MACGILL PC
156 E Market St
Suite 1200
Indianapolis, IN 46204
Phone: (317) 721-1253
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Alfred E. Donnellan, Esq.
Nelida Lara, Esq.
One North Lexington Avenue, 11th Floor
White Plains, New York 10601
Phone: (914) 681-0200
Attorneys for Defendant
2
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BEFORE THE DISCOVERY REFEREE
WILLIAM P. HARRINGTON
WESTCHESTER COUNTY, NEW YORK SUPREME COURT
PAMELA GOLDSTEIN, )
ELLYN & TONY BERK, AS ADMINISTRATORS )
OF THE ESTATE OF WINNIFRED BERK, AND ) CASE NO. 60767/2018
PAUL BENJAMIN, ON BEHALF OF THEMSELVES )
AND ALL OTHERS SIMILARLY SITUATED, )
) DISCOVERY REFEREE MOTION:
PLAINTIFFS, ) NO. 16-002
)
V. )
)
HOULIHAN/LAWRENCE, INC., )
)
DEFENDANT. )
HOULIHAN LAWRENCE’S MOTION FOR PROTECTIVE ORDER REGARDING
CLASS MEMBER LIST (No. 16-002)
Pursuant to CPLR § 3103, Houlihan Lawrence seeks a protective order prohibiting
Plaintiffs’ new complaints regarding the Class Member List.
The “scope of permissible discovery is not entirely unlimited and the trial court is
invested with broad discretion to supervise discovery and to determine what is ‘material and
necessary’ as that phrase is used in CPLR 3101(a).” Auerbach v. Klein, 30 A.D.3d 451, 452 (2d
Dept. 2006) (quoting NBT Bancorp v. Fleet/Norstar Fin. Group, 192 A.D.2d 1032, 1033 (3d
Dept. 1993)). In the class action context, where, as here, the defendant has “satisf[ied]
plaintiff[s’] need to define [their] proposed class,” no further disclosure is necessary or
warranted. Gewanter v. Quaker State Oil Refining Corp., 87 A.D.2d 970, 971 (N.Y. County
April 2, 1982) (holding “[d]isclosure of the names and addresses of the persons” allegedly
aggrieved “would . . . satisfy plaintiff’s need to define his proposed class.”).
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I. Plaintiffs’ Renewed Complaints Regarding the Class Member List are Unfounded
Despite their silence on the issue in previous correspondence, Plaintiffs now identify
Houlihan Lawrence’s Class Member List as their primary concern. See Vest to Harrington, May
6, 2022, at 1 (“Plaintiffs request the Discovery Referee’s immediate attention to the issue
addressed below in § B.3 [“Class Member List”].”). Plaintiffs accuse Houlihan Lawrence of
“refus[ing] to participate in discovery in good faith” by submitting to Plaintiffs their requested
list of class members generated from Houlihan Lawrence’s accounting database, Profit Power.
See id. at 4.
This issue was resolved at the prior hearing. Plaintiffs withdrew their complaints about
the class member list. Houlihan Lawrence does not understand why Plaintiffs have now reversed
course.
Houlihan Lawrence has already provided the class member list, and the list is sufficient
to fulfill Houlihan Lawrence’s obligation to produce “material and necessary” information
pursuant to CPLR § 3101. No further identification, qualification, or explanation is warranted.
Cf. Gewanter, 87 A.D.2d at 971.
II. Plaintiffs Must Bear the Expense of Prosecuting Their Lawsuit and Further
Complaints Regarding the Class Member List Should Not be Heard
Any further complaints by Plaintiffs should not be heard. If Plaintiffs want to investigate
each transaction they claim should be on the list (contrary to Houlihan Lawrence’s official
accounting database, Profit Power, and in contravention of their abandonment of this issue at the
last hearing), Plaintiffs should do so at their own expense and on their own time. CPLR § 904(d)
(plaintiff bear the expense of class notification); Woodard v. Andrus, 272 F.R.D. 185, 201 (W.D.
La. 2010) (quoting Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 356-57 (1978) (“particular
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tasks necessary to send the proposed class notice should be performed by the plaintiff,” including
identifying the individuals who will receive notice of the lawsuit).
Plaintiffs’ new, unfounded request that Houlihan Lawrence “produce within three days a
spreadsheet identifying by property address every transaction on the MLS List that it omitted
from the Profit Power List and a short, plain statement for each omitted transaction explaining
why HL considers it to be outside of the Class”1 is unduly burdensome, procedurally improper,
and impossible to achieve in the requested timeframe. Even if it was ever Houlihan Lawrence’s
burden to identify class members, which it was not, Plaintiffs have provided no explanation to
support their assertion that Houlihan Lawrence omitted certain transactions that qualify as part of
Plaintiffs’ class definition from the Class Member List. Houlihan Lawrence described its process
in detail:
Transactions that met the class criteria were identified within the
Company’s ERP system, Profit Power, as follows: The transaction
was recorded as a residential, closed, sales transaction. The close
date was between 1/1/2011 and 7/14/2018. The address of the
subject property had a ZIP code or city name within Westchester,
Putnam or Dutchess counties, per data from the USPS. The
transaction type was recorded as “Our List and Sale.”
We also identified 28 data records where there were multiple
records for the same subject property that recorded commissions
for the list side and sale (buy) side. In these instances, the subject
property shared either (a) the same address and MLS Number
and/or (b) shared the same address and close price with close dates
within 30 days of the other record. We have provided these records
in a separate Excel workbook.
Exhibit A at 1.
Nor have Plaintiffs undertaken to identify any example of a transaction they assert was
improperly omitted. Plaintiffs are in possession of the MLS and Profit Power lists, and it is their
burden to identify any additional individuals they believe should be provided notice of this
1
Vest to Harrington, May 6, 2022, at 4.
3
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lawsuit. Houlihan Lawrence welcomes the opportunity to respond to any specific transactions
Plaintiffs wish to argue were improperly “omitted” from the Profit Power list, on a transaction-
by-transaction basis. However, Houlihan Lawrence rejects Plaintiffs’ attempts to shift the costs
of prosecuting their lawsuit.
CONCLUSION
For the foregoing reasons, and each of them, Houlihan Lawrence respectfully requests a
protective order denying Plaintiffs’ request that Houlihan Lawrence “produce within three days a
spreadsheet identifying by property address every transaction on the MLS List that it omitted
from the Profit Power List and a short, plain statement for each omitted transaction explaining
why HL considers it to be outside of the Class” as unduly burdensome, improper, and contrary to
the obligations imposed by CPLR § 3101.
Dated: May 19, 2022 /s/Robert D. MacGill
Robert D. MacGill (pro hac vice)
Matthew T. Ciulla (pro hac vice)
MACGILL PC
156 E Market St
Suite 1200
Indianapolis, IN 46204
Phone: (317) 721-1253
Alfred E. Donnellan, Esq.
Nelida Lara, Esq.
One North Lexington Avenue, 11th Floor
White Plains, New York 10601
Phone: (914) 681-0200
Attorneys for Defendant
4
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16-002 EX A - PAGE 1
156 E. Market Street
Suite 1200
Indianapolis, IN 46204
www.MacGillLaw.com
Robert D. MacGill
317.906.5085
Robert.MacGill@MacGillLaw.com
Via Email
April 6, 2022
Jeremy Vest
Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C.
Chrysler Center
666 Third Avenue
New York NY 10017
William Ohlemeyer
Boies Schiller Flexner LLP
333 Main Street
Armonk, NY 10504
RE: Class List, Goldstein et al. v. Houlihan Lawrence, Inc.,
No. 60767/2018 (N.Y. Sup. Ct., Westchester Cty.)
Dear Counsel,
Pursuant to the Fourteenth Report and Recommendation, please find enclosed the class
member list.
Transactions that met the class criteria were identified within the Company’s ERP
system, Profit Power, as follows: The transaction was recorded as a residential, closed, sales
transaction. The close date was between 1/1/2011 and 7/14/2018. The address of the subject
property had a ZIP Code or city name within Westchester, Putnam or Dutchess counties, per data
from the USPS. The transaction type was recorded as “Our List and Sale.”
We also identified 28 data records where there were multiple records for the same subject
property that recorded commissions for the list side and sale (buy) side. In these instances, the
subject property shared either (a) the same address and MLS Number and/or (b) shared the same
address and close price with close dates within 30 days of the other record. We have provided
these records in a separate Excel workbook.
This list should be used in place of the prior lists, which were attached to Plaintiffs’
motion for class certification. As we informed you on January 28, 2019, the prior list was based
upon third party MLS data, which is less accurate than the Company’s ERP system, Profit
Power.
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16-002 EX A - PAGE 2
Jeremy Vest
William Ohlemeyer
April 6, 2022
Page 2
Per your request, we asked the third-party Client Connect vendor to supply us with the
email addresses associated with these transactions. The data received can be found within the
enclosed Excel workbooks.
We remind you that you are prohibited from contacting absent class members and that
nothing in the Fourteenth Report and Recommendation has changed this restriction. Per the
Fourteenth Report and Recommendation, by supplying this 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.
Finally, we note that you have been ordered to “update the mailing addresses within the
Potential Class Member Data,” and to “produce any such updated address list(s) to Houlihan
Lawrence upon their creation.” Please provide the date upon which you will produce this list to
us.
Best regards.
Very truly yours,
Robert D. MacGill
cc: Matthew Ciulla, Alfred Donnellan, Nelida Lara, Alexander Pantos
16-002 EX A - PAGE 2
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BEFORE THE DISCOVERY REFEREE
WILLIAM P. HARRINGTON
WESTCHESTER COUNTY, NEW YORK SUPREME COURT
PAMELA GOLDSTEIN, )
ELLYN & TONY BERK, AS ADMINISTRATORS )
OF THE ESTATE OF WINNIFRED BERK, AND ) CASE NO. 60767/2018
PAUL BENJAMIN, ON BEHALF OF THEMSELVES )
AND ALL OTHERS SIMILARLY SITUATED, )
) DISCOVERY REFEREE MOTION:
PLAINTIFFS, ) NO. 16-003
)
V. )
)
HOULIHAN/LAWRENCE, INC., )
)
DEFENDANT. )
HOULIHAN LAWRENCE’S MOTION TO COMPEL COMPLIANCE WITH COURT
ORDER (No. 16-003)
Pursuant to CPLR § 3124, Houlihan Lawrence seeks to compel Plaintiffs to produce to
Houlihan Lawrence the updated class member address list as defined in NYSCEF Doc. No.
1083, at ¶ 1(e) (Fourteenth Report and Recommendation) and as Ordered by the Court in
NYSCEF 1088.
I. Plaintiffs Should be Compelled to Comply with the Court’s Order to Produce
the Updated Address List Upon its Creation
The trial court is vested with “broad power to regulate discovery to prevent abuse.”
Matter of Elmezzi, No. 339363/C, 2010 N.Y. Misc. LEXIS 6479, at*7 (Nassau County, Nov. 9,
2010). So long as the party seeking to compel can show that the documents sought to be obtained
are the proper subject of discovery and are “disclosed with reasonable particularity,” an order
compelling compliance with notices to produce is appropriate. See Heitman v. Mango, 237
A.D.2d 330, 330-31 (2d Dept. 1997).
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Plaintiffs continue to refuse to produce the Court-ordered updated Class Member List
with addresses. See Fourteenth Report and Recommendation, NYSCEF Doc. No. 1083, at ¶ 1(e);
NYSCEF Doc. No. 1088 (confirming Fourteenth Report and Recommendation); Exhibit B at 15-
16 (Plaintiffs’ refusal). They must comply with Court Orders.
Houlihan Lawrence has identified the document it seeks with reasonable particularity—
the Class Member List with updated addresses as it is defined in the Fourteenth Report and
Recommendation. See NYSCEF Doc. No. 1083, at ¶ 1(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.”); Exhibit A, Houlihan
Lawrence’s First Merits Set of Requests for Production, at No. 22 (“The list of updated Class
Member addresses as referenced in the Discovery Referee’s Fourteenth Report and
Recommendation. NYSCEF Doc. No. 1083, at ¶ 1(e).”).
Plaintiffs do not claim that the document is not a proper subject of discovery, only that
(A) they will define the list however they like, (i.e., omit mailing addresses), in contravention of
the Court’s Order, and (B) they will produce it when they see fit, in contravention of the Court’s
Order. See Exhibit B, Plaintiffs’ Responses and Objections to Houlihan Lawrence’s First Merits
Set of Requests for Production, at 15-16 (“Plaintiffs will produce updated Class Member
information following Court approval of a class notice plan.”).
The Fourteenth Report and Recommendation and the Court’s Order confirming the same
is clear—Plaintiffs are to produce to Houlihan Lawrence the updated class member list upon its
creation. The Court so ordered. Plaintiffs should be compelled to comply with the Court’s order.
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CONCLUSION
For the foregoing reasons, and each of them, Houlihan Lawrence respectfully requests
that Plaintiffs be compelled to produce the updated mailing addresses of class members, as
defined by the Fourteenth Report and Recommendation at ¶ 1(e) and the Court’s Order, to
Houlihan Lawrence immediately.
Dated: May 19, 2022 /s/Robert D. MacGill
Robert D. MacGill (pro hac vice)
Matthew T. Ciulla (pro hac vice)
MACGILL PC
156 E Market St
Suite 1200
Indianapolis, IN 46204
Phone: (317) 721-1253
Alfred E. Donnellan, Esq.
Nelida Lara, Esq.
One North Lexington Avenue, 11th Floor
White Plains, New York 10601
Phone: (914) 681-0200
Attorneys for Defendant
3
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16-003 EX A - PAGE 1
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, )
)
Plaintiffs, )
)
vs. )
)
HOULIHAN LAWRENCE INC., )
)
Defendant. )
)
DEFENDANT HOULIHAN LAWRENCE, INC.’S
FIRST SET OF MERITS REQUESTS FOR PRODUCTION TO PLAINTIFFS
Houlihan Lawrence, Inc. (“Houlihan Lawrence”) requests that Plaintiffs produce the
following documents at the offices of MacGill PC, 156 E. Market St., Suite 1200, Indianapolis, IN
46204, or electronically to Matthew T. Ciulla, within thirty (30) days from the date of service
hereof, or at such other time or place as the parties may agree or the Court may order or the Referee
may recommend, pursuant to the Fourteenth Report and Recommendation and the New York State
Civil Practice Law and Rules.
GENERAL INSTRUCTIONS AND DEFINITIONS
1. The following instructions and definitions apply to each request and are incorporated by
reference into each request. The requests must be read in the light of these instructions and
definitions, and your answers must be responsive to the requests as so defined.
2. You are to timely supplement your responses to the following requests if you discover
responsive information after your initial response. You must supplement or correct Your responses
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to these document requests without being requested to do so as to: Information hereinafter acquired
that would be responsive to these discovery requests requesting the identification and location of
persons having knowledge of discoverable matters and the identification of persons expected to be
called as expert witnesses at the trial; or Any response when it is discovered to have been incorrect
when made or when it is discovered to be no longer true.
3. If you object to any request, you shall so state, including your basis for the objection, in
your answer to the specific request you found objectionable. If only part of any request is
objectionable, answer the request as fully as possible in addition to stating the objection, and its
basis, to any remaining part.
4. Rules of Construction: (a) The singular shall include the plural, and the plural shall
include the singular; (b) A masculine, feminine, or neutral pronoun shall be construed to refer to
all other gender pronouns; (c) “And” and “or” shall be construed conjunctively and disjunctively
so as to bring within the scope of these requests any information that might otherwise be construed
to be outside their scope; (d) “Any” shall be understood to include and encompass one or more
and “all;” and (e) The present tense shall include the past tense, for example “are” shall include
“were.”
5. Claim of Privilege. Wherever any request calls for information, for the identification of
a document, a thing, or an oral communication, or for the production of a document or thing, that
you claim to be privileged or immune from discovery as work product or on any other ground,
Plaintiff requests that you produce within thirty (30) days of service of these requests a list:
(a) Identifying each particular request to which you object, and each specific ground
upon which such objection is based; and
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(b) Specifying each withheld document or thing or fact, or portion thereof as follows:
its date; the general nature of the document or thing (e.g., whether it is a letter, chart,
pamphlet, memorandum, etc.); a summary of the contents or the general subject matter
of the document or thing; the identity of each other document or other thing transmitted
with or attached to that allegedly privileged or discovery-immune document or thing;
its present location and the identity of its current custodian; the identity of each person
who authored, prepared, or signed the document or thing; a list identifying each person,
including but not limited to addressees and designated copy recipients, to whom either
the original or a copy of the document or thing has been disclosed, including the date
and means of such disclosure; and the nature of the privilege, immunity, or other rule
of law relied upon to withhold the information, document, or thing, and the facts
supporting your asserted reliance.
Any purportedly privileged or discovery-immune information or document that contains
matter that is not privileged or immune from discovery must be produced with the purportedly
privileged or discovery-immune portion excised.
6. Scope of Answers. In answering these requests, you are requested to furnish all
information available to you, however obtained, including hearsay, information known by you or
in your possession or appearing in your records, information in the possession of your attorneys,
agents, accounts, employees, your investigators, and all persons acting on your behalf, and not
merely the information known of your own personal knowledge. Any person who produces
information in answer to the following requests is requested to identify which answers he has
produced and furnish his name, address, and title.
3
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7. Qualification of Answers. If your answer is in any way qualified, please state the exact
nature and extent of the qualification.
8. “Communication” or “Communicate” or “Communicated” means or includes every
manner of transmitting or receiving information (in the form of facts, ideas, inquiries, or
otherwise), and includes both oral and written communications of any type or form (including
typewritten or handwritten documents, teletype, wire, e-mail, internet, digital, and any other
electronic communications).
9. “Describe” means to state all information known about a particular subject, however and
whenever obtained, subject to any Claim of Privilege, and includes the source of any information.
With respect to conversations or communications, “Describe” further means to state the date of
the conversation or communication; the time of the conversation or communication; the location(s)
where the conversation or communication took place; the subject matter of the conversation or
communication, including a recitation of exactly what was said and by whom; the identity of all
persons who participated in the conversation or communication; and the identity of all other
persons who were present during the conversation or communication.
10. “Document” or “Documents” is used in a comprehensive sense and includes, but is not
limited to: any and all written, typewritten, printed, photographed, recorded, transcribed, punched,
taped, filed, digital, electronic, or graphic matter of any kind or nature, however produced or
reproduced, including the complete original or, where no original is available, a complete copy of
the original, and each non-identical copy of the original (e.g., where different because of notes
made on the copy); any form of collected data for use with electronic data processing equipment,
and any mechanical, visual, or sound recordings in Your custody, possession, or control and any
correspondence, emails, instant messages, text messages, telegrams, telegraphs, teletypes,
4
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memoranda, agendas, contracts, studies, statements, notes, reports, agreements, diaries, statistics,
letters, date books, work papers, statements, tapes, discs, minutes, entries, books of account, inter-
office and intraoffice communications, notations of any sort of conversation, and lists. The term
also includes all information stored in a computer system although not yet printed, all information
stored on computer disks or hard drives, all information stored on computer tape backups, and all
information stored on CD-ROM or electronic media, including voicemail, e-mail, text messages,
or instant messages. In addition, the term “documents” means any metadata or other electronic
information related to the foregoing enumerated items. For all documents as defined above of
which You are aware are responsive to the following requests but are not produced, You should
“identify” such documents. This specifically includes documents that are allegedly lost, stolen,
misplaced, discarded, shredded, deleted or are not otherwise being produced for any reason.
11. “Identify,” “Identity,” or “Identities,”
(a) when used in reference to any entity or person means to state his/her/its name, address
or a description of his/her/its location, and telephone number and, if known, date and place
of birth and social security number;
(b) when used in reference to a document, means to state its form (written, typed, printed,
computer printout, or other form), number of pages, author, recipient, date, and the name,
current address, and job title or job description of each person presently having custody of
or access to a copy of the document.; and
. (c) when used in reference to an event, means to state when the event occurred, who was
present, and all other facts related to it.
12. “Person” includes all natural persons, corporations, limited liability companies,
proprietorships, partnerships, other business associations, firms, joint ventures, public authorities,
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municipal corporations, state governments, local governments, governmental bodies, and any
other legal entities, and the employees or agents of these entities.
13. “Concerning,” “reflecting,” “regarding,” “relating to” or “referring to” means directly
or indirectly relating to, referring to, reflecting, pertaining to, describing, evidencing, supporting,
constituting, comprising, containing, setting forth, showing, disclosing, defining, discussing,
embodying, identifying, stating, dealing with, associated with, describing, explaining,
summarizing, mentioning, including, or refuting.
14. All capitalized terms not otherwise defined shall have the meaning provided in the
referenced document. Any defined term that is inadvertently not capitalized shall retain the
definition provided herein.
15. If You contend that You cannot comply with any request in full, You should comply
to the extent possible and provide an explanation as to why full compliance is not possible.
16. For document requests: If any portion of a document is responsive to any request, the
entire document must be produced; and you must produce all documents described or requested
whether they are drafts, outlines, final versions, or otherwise and/or whether they are or are not
identical to any copy or copies thereof, by reason of alterations, notes, comments, initials,
underscoring, indication of routing, or other material contained thereon or attached thereto. All
such non-identical copies are to be produced separately. In so doing, please furnish documents
that are in the possession of Your directors, officers, employees, attorneys, accountants,
representatives or agents, or that are otherwise subject to Your custody or control.
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SPECIFIC INSTRUCTIONS AND DEFINITIONS
17. “Named Plaintiffs” refers to Pamela Goldstein, Paul Benjamin, Tony Berk, and
Ellyn Berk and any person who may be added as a class representative in this case. It also includes
the Estate of Winifred Berk.
18. “Class Member” refers any member of the class as certified. Currently, this
definition can be found at NYSCEF 1072 page 19-20. Houlihan Lawrence reserves the right to
m
Preview
FILED: WESTCHESTER COUNTY CLERK 07/20/2022 03:57 PM INDEX NO. 60767/2018 NYSCEF DOC. NO. 1434 RECEIVED NYSCEF: 07/20/2022 EXHIBIT 5 (REDACTED) FILED: WESTCHESTER COUNTY CLERK 07/20/2022 03:57 PM INDEX NO. 60767/2018 NYSCEF DOC. NO. 1434 RECEIVED NYSCEF: 07/20/2022 BEFORE THE DISCOVERY REFEREE WILLIAM P. HARRINGTON WESTCHESTER COUNTY, NEW YORK SUPREME COURT PAMELA GOLDSTEIN, ) ELLYN & TONY BERK, AS ADMINISTRATORS ) OF THE ESTATE OF WINNIFRED BERK, AND ) CASE NO. 60767/2018 PAUL BENJAMIN, ON BEHALF OF THEMSELVES ) AND ALL OTHERS SIMILARLY SITUATED, ) ) DISCOVERY REFEREE MOTION: PLAINTIFFS, ) NO. 16-001 ) V. ) ) HOULIHAN/LAWRENCE, INC., ) ) DEFENDANT. ) HOULIHAN LAWRENCE’S MOTION FOR ORAL ARGUMENT ON MOTION SEQUENCE SIXTEEN (No. 16-001) Pursuant to Part 202.8-f(b) of the Uniform Rules for the Supreme Court & the County Court, Houlihan Lawrence respectfully requests oral argument before the Discovery Referee on Motions 16-002, 16-003, 16-004, 16-005, 16-006, 16-007, 16-008, 16-009, 16-010, 16-011, 16- 012, 16-013, 16-014, 16-015, 16-016, 16-017, and 16-018, once briefing has completed on those Motions. Due to the volume, breadth, and importance of Plaintiffs’ new requests, Houlihan Lawrence requests that the Referee issue a formal agenda before each oral argument describing the specific Motions to be heard and the order in which they will be heard. Dated: May 19, 2022 /s/Robert D. MacGill Robert D. MacGill (pro hac vice) Matthew T. Ciulla (pro hac vice) MACGILL PC 156 E Market St Suite 1200 Indianapolis, IN 46204 Phone: (317) 721-1253 FILED: WESTCHESTER COUNTY CLERK 07/20/2022 03:57 PM INDEX NO. 60767/2018 NYSCEF DOC. NO. 1434 RECEIVED NYSCEF: 07/20/2022 Alfred E. Donnellan, Esq. Nelida Lara, Esq. One North Lexington Avenue, 11th Floor White Plains, New York 10601 Phone: (914) 681-0200 Attorneys for Defendant 2 FILED: WESTCHESTER COUNTY CLERK 07/20/2022 03:57 PM INDEX NO. 60767/2018 NYSCEF DOC. NO. 1434 RECEIVED NYSCEF: 07/20/2022 BEFORE THE DISCOVERY REFEREE WILLIAM P. HARRINGTON WESTCHESTER COUNTY, NEW YORK SUPREME COURT PAMELA GOLDSTEIN, ) ELLYN & TONY BERK, AS ADMINISTRATORS ) OF THE ESTATE OF WINNIFRED BERK, AND ) CASE NO. 60767/2018 PAUL BENJAMIN, ON BEHALF OF THEMSELVES ) AND ALL OTHERS SIMILARLY SITUATED, ) ) DISCOVERY REFEREE MOTION: PLAINTIFFS, ) NO. 16-002 ) V. ) ) HOULIHAN/LAWRENCE, INC., ) ) DEFENDANT. ) HOULIHAN LAWRENCE’S MOTION FOR PROTECTIVE ORDER REGARDING CLASS MEMBER LIST (No. 16-002) Pursuant to CPLR § 3103, Houlihan Lawrence seeks a protective order prohibiting Plaintiffs’ new complaints regarding the Class Member List. The “scope of permissible discovery is not entirely unlimited and the trial court is invested with broad discretion to supervise discovery and to determine what is ‘material and necessary’ as that phrase is used in CPLR 3101(a).” Auerbach v. Klein, 30 A.D.3d 451, 452 (2d Dept. 2006) (quoting NBT Bancorp v. Fleet/Norstar Fin. Group, 192 A.D.2d 1032, 1033 (3d Dept. 1993)). In the class action context, where, as here, the defendant has “satisf[ied] plaintiff[s’] need to define [their] proposed class,” no further disclosure is necessary or warranted. Gewanter v. Quaker State Oil Refining Corp., 87 A.D.2d 970, 971 (N.Y. County April 2, 1982) (holding “[d]isclosure of the names and addresses of the persons” allegedly aggrieved “would . . . satisfy plaintiff’s need to define his proposed class.”). FILED: WESTCHESTER COUNTY CLERK 07/20/2022 03:57 PM INDEX NO. 60767/2018 NYSCEF DOC. NO. 1434 RECEIVED NYSCEF: 07/20/2022 I. Plaintiffs’ Renewed Complaints Regarding the Class Member List are Unfounded Despite their silence on the issue in previous correspondence, Plaintiffs now identify Houlihan Lawrence’s Class Member List as their primary concern. See Vest to Harrington, May 6, 2022, at 1 (“Plaintiffs request the Discovery Referee’s immediate attention to the issue addressed below in § B.3 [“Class Member List”].”). Plaintiffs accuse Houlihan Lawrence of “refus[ing] to participate in discovery in good faith” by submitting to Plaintiffs their requested list of class members generated from Houlihan Lawrence’s accounting database, Profit Power. See id. at 4. This issue was resolved at the prior hearing. Plaintiffs withdrew their complaints about the class member list. Houlihan Lawrence does not understand why Plaintiffs have now reversed course. Houlihan Lawrence has already provided the class member list, and the list is sufficient to fulfill Houlihan Lawrence’s obligation to produce “material and necessary” information pursuant to CPLR § 3101. No further identification, qualification, or explanation is warranted. Cf. Gewanter, 87 A.D.2d at 971. II. Plaintiffs Must Bear the Expense of Prosecuting Their Lawsuit and Further Complaints Regarding the Class Member List Should Not be Heard Any further complaints by Plaintiffs should not be heard. If Plaintiffs want to investigate each transaction they claim should be on the list (contrary to Houlihan Lawrence’s official accounting database, Profit Power, and in contravention of their abandonment of this issue at the last hearing), Plaintiffs should do so at their own expense and on their own time. CPLR § 904(d) (plaintiff bear the expense of class notification); Woodard v. Andrus, 272 F.R.D. 185, 201 (W.D. La. 2010) (quoting Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 356-57 (1978) (“particular 2 FILED: WESTCHESTER COUNTY CLERK 07/20/2022 03:57 PM INDEX NO. 60767/2018 NYSCEF DOC. NO. 1434 RECEIVED NYSCEF: 07/20/2022 tasks necessary to send the proposed class notice should be performed by the plaintiff,” including identifying the individuals who will receive notice of the lawsuit). Plaintiffs’ new, unfounded request that Houlihan Lawrence “produce within three days a spreadsheet identifying by property address every transaction on the MLS List that it omitted from the Profit Power List and a short, plain statement for each omitted transaction explaining why HL considers it to be outside of the Class”1 is unduly burdensome, procedurally improper, and impossible to achieve in the requested timeframe. Even if it was ever Houlihan Lawrence’s burden to identify class members, which it was not, Plaintiffs have provided no explanation to support their assertion that Houlihan Lawrence omitted certain transactions that qualify as part of Plaintiffs’ class definition from the Class Member List. Houlihan Lawrence described its process in detail: Transactions that met the class criteria were identified within the Company’s ERP system, Profit Power, as follows: The transaction was recorded as a residential, closed, sales transaction. The close date was between 1/1/2011 and 7/14/2018. The address of the subject property had a ZIP code or city name within Westchester, Putnam or Dutchess counties, per data from the USPS. The transaction type was recorded as “Our List and Sale.” We also identified 28 data records where there were multiple records for the same subject property that recorded commissions for the list side and sale (buy) side. In these instances, the subject property shared either (a) the same address and MLS Number and/or (b) shared the same address and close price with close dates within 30 days of the other record. We have provided these records in a separate Excel workbook. Exhibit A at 1. Nor have Plaintiffs undertaken to identify any example of a transaction they assert was improperly omitted. Plaintiffs are in possession of the MLS and Profit Power lists, and it is their burden to identify any additional individuals they believe should be provided notice of this 1 Vest to Harrington, May 6, 2022, at 4. 3 FILED: WESTCHESTER COUNTY CLERK 07/20/2022 03:57 PM INDEX NO. 60767/2018 NYSCEF DOC. NO. 1434 RECEIVED NYSCEF: 07/20/2022 lawsuit. Houlihan Lawrence welcomes the opportunity to respond to any specific transactions Plaintiffs wish to argue were improperly “omitted” from the Profit Power list, on a transaction- by-transaction basis. However, Houlihan Lawrence rejects Plaintiffs’ attempts to shift the costs of prosecuting their lawsuit. CONCLUSION For the foregoing reasons, and each of them, Houlihan Lawrence respectfully requests a protective order denying Plaintiffs’ request that Houlihan Lawrence “produce within three days a spreadsheet identifying by property address every transaction on the MLS List that it omitted from the Profit Power List and a short, plain statement for each omitted transaction explaining why HL considers it to be outside of the Class” as unduly burdensome, improper, and contrary to the obligations imposed by CPLR § 3101. Dated: May 19, 2022 /s/Robert D. MacGill Robert D. MacGill (pro hac vice) Matthew T. Ciulla (pro hac vice) MACGILL PC 156 E Market St Suite 1200 Indianapolis, IN 46204 Phone: (317) 721-1253 Alfred E. Donnellan, Esq. Nelida Lara, Esq. One North Lexington Avenue, 11th Floor White Plains, New York 10601 Phone: (914) 681-0200 Attorneys for Defendant 4 FILED: WESTCHESTER COUNTY CLERK 07/20/2022 03:57 PM INDEX NO. 60767/2018 NYSCEF DOC. NO. 1434 RECEIVED NYSCEF: 07/20/2022 16-002 EX A - PAGE 1 156 E. Market Street Suite 1200 Indianapolis, IN 46204 www.MacGillLaw.com Robert D. MacGill 317.906.5085 Robert.MacGill@MacGillLaw.com Via Email April 6, 2022 Jeremy Vest Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C. Chrysler Center 666 Third Avenue New York NY 10017 William Ohlemeyer Boies Schiller Flexner LLP 333 Main Street Armonk, NY 10504 RE: Class List, Goldstein et al. v. Houlihan Lawrence, Inc., No. 60767/2018 (N.Y. Sup. Ct., Westchester Cty.) Dear Counsel, Pursuant to the Fourteenth Report and Recommendation, please find enclosed the class member list. Transactions that met the class criteria were identified within the Company’s ERP system, Profit Power, as follows: The transaction was recorded as a residential, closed, sales transaction. The close date was between 1/1/2011 and 7/14/2018. The address of the subject property had a ZIP Code or city name within Westchester, Putnam or Dutchess counties, per data from the USPS. The transaction type was recorded as “Our List and Sale.” We also identified 28 data records where there were multiple records for the same subject property that recorded commissions for the list side and sale (buy) side. In these instances, the subject property shared either (a) the same address and MLS Number and/or (b) shared the same address and close price with close dates within 30 days of the other record. We have provided these records in a separate Excel workbook. This list should be used in place of the prior lists, which were attached to Plaintiffs’ motion for class certification. As we informed you on January 28, 2019, the prior list was based upon third party MLS data, which is less accurate than the Company’s ERP system, Profit Power. 16-002 EX A - PAGE 1 FILED: WESTCHESTER COUNTY CLERK 07/20/2022 03:57 PM INDEX NO. 60767/2018 NYSCEF DOC. NO. 1434 RECEIVED NYSCEF: 07/20/2022 16-002 EX A - PAGE 2 Jeremy Vest William Ohlemeyer April 6, 2022 Page 2 Per your request, we asked the third-party Client Connect vendor to supply us with the email addresses associated with these transactions. The data received can be found within the enclosed Excel workbooks. We remind you that you are prohibited from contacting absent class members and that nothing in the Fourteenth Report and Recommendation has changed this restriction. Per the Fourteenth Report and Recommendation, by supplying this 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. Finally, we note that you have been ordered to “update the mailing addresses within the Potential Class Member Data,” and to “produce any such updated address list(s) to Houlihan Lawrence upon their creation.” Please provide the date upon which you will produce this list to us. Best regards. Very truly yours, Robert D. MacGill cc: Matthew Ciulla, Alfred Donnellan, Nelida Lara, Alexander Pantos 16-002 EX A - PAGE 2 FILED: WESTCHESTER COUNTY CLERK 07/20/2022 03:57 PM INDEX NO. 60767/2018 NYSCEF DOC. NO. 1434 RECEIVED NYSCEF: 07/20/2022 BEFORE THE DISCOVERY REFEREE WILLIAM P. HARRINGTON WESTCHESTER COUNTY, NEW YORK SUPREME COURT PAMELA GOLDSTEIN, ) ELLYN & TONY BERK, AS ADMINISTRATORS ) OF THE ESTATE OF WINNIFRED BERK, AND ) CASE NO. 60767/2018 PAUL BENJAMIN, ON BEHALF OF THEMSELVES ) AND ALL OTHERS SIMILARLY SITUATED, ) ) DISCOVERY REFEREE MOTION: PLAINTIFFS, ) NO. 16-003 ) V. ) ) HOULIHAN/LAWRENCE, INC., ) ) DEFENDANT. ) HOULIHAN LAWRENCE’S MOTION TO COMPEL COMPLIANCE WITH COURT ORDER (No. 16-003) Pursuant to CPLR § 3124, Houlihan Lawrence seeks to compel Plaintiffs to produce to Houlihan Lawrence the updated class member address list as defined in NYSCEF Doc. No. 1083, at ¶ 1(e) (Fourteenth Report and Recommendation) and as Ordered by the Court in NYSCEF 1088. I. Plaintiffs Should be Compelled to Comply with the Court’s Order to Produce the Updated Address List Upon its Creation The trial court is vested with “broad power to regulate discovery to prevent abuse.” Matter of Elmezzi, No. 339363/C, 2010 N.Y. Misc. LEXIS 6479, at*7 (Nassau County, Nov. 9, 2010). So long as the party seeking to compel can show that the documents sought to be obtained are the proper subject of discovery and are “disclosed with reasonable particularity,” an order compelling compliance with notices to produce is appropriate. See Heitman v. Mango, 237 A.D.2d 330, 330-31 (2d Dept. 1997). FILED: WESTCHESTER COUNTY CLERK 07/20/2022 03:57 PM INDEX NO. 60767/2018 NYSCEF DOC. NO. 1434 RECEIVED NYSCEF: 07/20/2022 Plaintiffs continue to refuse to produce the Court-ordered updated Class Member List with addresses. See Fourteenth Report and Recommendation, NYSCEF Doc. No. 1083, at ¶ 1(e); NYSCEF Doc. No. 1088 (confirming Fourteenth Report and Recommendation); Exhibit B at 15- 16 (Plaintiffs’ refusal). They must comply with Court Orders. Houlihan Lawrence has identified the document it seeks with reasonable particularity— the Class Member List with updated addresses as it is defined in the Fourteenth Report and Recommendation. See NYSCEF Doc. No. 1083, at ¶ 1(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.”); Exhibit A, Houlihan Lawrence’s First Merits Set of Requests for Production, at No. 22 (“The list of updated Class Member addresses as referenced in the Discovery Referee’s Fourteenth Report and Recommendation. NYSCEF Doc. No. 1083, at ¶ 1(e).”). Plaintiffs do not claim that the document is not a proper subject of discovery, only that (A) they will define the list however they like, (i.e., omit mailing addresses), in contravention of the Court’s Order, and (B) they will produce it when they see fit, in contravention of the Court’s Order. See Exhibit B, Plaintiffs’ Responses and Objections to Houlihan Lawrence’s First Merits Set of Requests for Production, at 15-16 (“Plaintiffs will produce updated Class Member information following Court approval of a class notice plan.”). The Fourteenth Report and Recommendation and the Court’s Order confirming the same is clear—Plaintiffs are to produce to Houlihan Lawrence the updated class member list upon its creation. The Court so ordered. Plaintiffs should be compelled to comply with the Court’s order. 2 FILED: WESTCHESTER COUNTY CLERK 07/20/2022 03:57 PM INDEX NO. 60767/2018 NYSCEF DOC. NO. 1434 RECEIVED NYSCEF: 07/20/2022 CONCLUSION For the foregoing reasons, and each of them, Houlihan Lawrence respectfully requests that Plaintiffs be compelled to produce the updated mailing addresses of class members, as defined by the Fourteenth Report and Recommendation at ¶ 1(e) and the Court’s Order, to Houlihan Lawrence immediately. Dated: May 19, 2022 /s/Robert D. MacGill Robert D. MacGill (pro hac vice) Matthew T. Ciulla (pro hac vice) MACGILL PC 156 E Market St Suite 1200 Indianapolis, IN 46204 Phone: (317) 721-1253 Alfred E. Donnellan, Esq. Nelida Lara, Esq. One North Lexington Avenue, 11th Floor White Plains, New York 10601 Phone: (914) 681-0200 Attorneys for Defendant 3 FILED: WESTCHESTER COUNTY CLERK 07/20/2022 03:57 PM INDEX NO. 60767/2018 NYSCEF DOC. NO. 1434 RECEIVED NYSCEF: 07/20/2022 16-003 EX A - PAGE 1 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, ) ) Plaintiffs, ) ) vs. ) ) HOULIHAN LAWRENCE INC., ) ) Defendant. ) ) DEFENDANT HOULIHAN LAWRENCE, INC.’S FIRST SET OF MERITS REQUESTS FOR PRODUCTION TO PLAINTIFFS Houlihan Lawrence, Inc. (“Houlihan Lawrence”) requests that Plaintiffs produce the following documents at the offices of MacGill PC, 156 E. Market St., Suite 1200, Indianapolis, IN 46204, or electronically to Matthew T. Ciulla, within thirty (30) days from the date of service hereof, or at such other time or place as the parties may agree or the Court may order or the Referee may recommend, pursuant to the Fourteenth Report and Recommendation and the New York State Civil Practice Law and Rules. GENERAL INSTRUCTIONS AND DEFINITIONS 1. The following instructions and definitions apply to each request and are incorporated by reference into each request. The requests must be read in the light of these instructions and definitions, and your answers must be responsive to the requests as so defined. 2. You are to timely supplement your responses to the following requests if you discover responsive information after your initial response. You must supplement or correct Your responses 16-003 EX A - PAGE 1 FILED: WESTCHESTER COUNTY CLERK 07/20/2022 03:57 PM INDEX NO. 60767/2018 NYSCEF DOC. NO. 1434 RECEIVED NYSCEF: 07/20/2022 16-003 EX A - PAGE 2 to these document requests without being requested to do so as to: Information hereinafter acquired that would be responsive to these discovery requests requesting the identification and location of persons having knowledge of discoverable matters and the identification of persons expected to be called as expert witnesses at the trial; or Any response when it is discovered to have been incorrect when made or when it is discovered to be no longer true. 3. If you object to any request, you shall so state, including your basis for the objection, in your answer to the specific request you found objectionable. If only part of any request is objectionable, answer the request as fully as possible in addition to stating the objection, and its basis, to any remaining part. 4. Rules of Construction: (a) The singular shall include the plural, and the plural shall include the singular; (b) A masculine, feminine, or neutral pronoun shall be construed to refer to all other gender pronouns; (c) “And” and “or” shall be construed conjunctively and disjunctively so as to bring within the scope of these requests any information that might otherwise be construed to be outside their scope; (d) “Any” shall be understood to include and encompass one or more and “all;” and (e) The present tense shall include the past tense, for example “are” shall include “were.” 5. Claim of Privilege. Wherever any request calls for information, for the identification of a document, a thing, or an oral communication, or for the production of a document or thing, that you claim to be privileged or immune from discovery as work product or on any other ground, Plaintiff requests that you produce within thirty (30) days of service of these requests a list: (a) Identifying each particular request to which you object, and each specific ground upon which such objection is based; and 2 16-003 EX A - PAGE 2 FILED: WESTCHESTER COUNTY CLERK 07/20/2022 03:57 PM INDEX NO. 60767/2018 NYSCEF DOC. NO. 1434 RECEIVED NYSCEF: 07/20/2022 16-003 EX A - PAGE 3 (b) Specifying each withheld document or thing or fact, or portion thereof as follows: its date; the general nature of the document or thing (e.g., whether it is a letter, chart, pamphlet, memorandum, etc.); a summary of the contents or the general subject matter of the document or thing; the identity of each other document or other thing transmitted with or attached to that allegedly privileged or discovery-immune document or thing; its present location and the identity of its current custodian; the identity of each person who authored, prepared, or signed the document or thing; a list identifying each person, including but not limited to addressees and designated copy recipients, to whom either the original or a copy of the document or thing has been disclosed, including the date and means of such disclosure; and the nature of the privilege, immunity, or other rule of law relied upon to withhold the information, document, or thing, and the facts supporting your asserted reliance. Any purportedly privileged or discovery-immune information or document that contains matter that is not privileged or immune from discovery must be produced with the purportedly privileged or discovery-immune portion excised. 6. Scope of Answers. In answering these requests, you are requested to furnish all information available to you, however obtained, including hearsay, information known by you or in your possession or appearing in your records, information in the possession of your attorneys, agents, accounts, employees, your investigators, and all persons acting on your behalf, and not merely the information known of your own personal knowledge. Any person who produces information in answer to the following requests is requested to identify which answers he has produced and furnish his name, address, and title. 3 16-003 EX A - PAGE 3 FILED: WESTCHESTER COUNTY CLERK 07/20/2022 03:57 PM INDEX NO. 60767/2018 NYSCEF DOC. NO. 1434 RECEIVED NYSCEF: 07/20/2022 16-003 EX A - PAGE 4 7. Qualification of Answers. If your answer is in any way qualified, please state the exact nature and extent of the qualification. 8. “Communication” or “Communicate” or “Communicated” means or includes every manner of transmitting or receiving information (in the form of facts, ideas, inquiries, or otherwise), and includes both oral and written communications of any type or form (including typewritten or handwritten documents, teletype, wire, e-mail, internet, digital, and any other electronic communications). 9. “Describe” means to state all information known about a particular subject, however and whenever obtained, subject to any Claim of Privilege, and includes the source of any information. With respect to conversations or communications, “Describe” further means to state the date of the conversation or communication; the time of the conversation or communication; the location(s) where the conversation or communication took place; the subject matter of the conversation or communication, including a recitation of exactly what was said and by whom; the identity of all persons who participated in the conversation or communication; and the identity of all other persons who were present during the conversation or communication. 10. “Document” or “Documents” is used in a comprehensive sense and includes, but is not limited to: any and all written, typewritten, printed, photographed, recorded, transcribed, punched, taped, filed, digital, electronic, or graphic matter of any kind or nature, however produced or reproduced, including the complete original or, where no original is available, a complete copy of the original, and each non-identical copy of the original (e.g., where different because of notes made on the copy); any form of collected data for use with electronic data processing equipment, and any mechanical, visual, or sound recordings in Your custody, possession, or control and any correspondence, emails, instant messages, text messages, telegrams, telegraphs, teletypes, 4 16-003 EX A - PAGE 4 FILED: WESTCHESTER COUNTY CLERK 07/20/2022 03:57 PM INDEX NO. 60767/2018 NYSCEF DOC. NO. 1434 RECEIVED NYSCEF: 07/20/2022 16-003 EX A - PAGE 5 memoranda, agendas, contracts, studies, statements, notes, reports, agreements, diaries, statistics, letters, date books, work papers, statements, tapes, discs, minutes, entries, books of account, inter- office and intraoffice communications, notations of any sort of conversation, and lists. The term also includes all information stored in a computer system although not yet printed, all information stored on computer disks or hard drives, all information stored on computer tape backups, and all information stored on CD-ROM or electronic media, including voicemail, e-mail, text messages, or instant messages. In addition, the term “documents” means any metadata or other electronic information related to the foregoing enumerated items. For all documents as defined above of which You are aware are responsive to the following requests but are not produced, You should “identify” such documents. This specifically includes documents that are allegedly lost, stolen, misplaced, discarded, shredded, deleted or are not otherwise being produced for any reason. 11. “Identify,” “Identity,” or “Identities,” (a) when used in reference to any entity or person means to state his/her/its name, address or a description of his/her/its location, and telephone number and, if known, date and place of birth and social security number; (b) when used in reference to a document, means to state its form (written, typed, printed, computer printout, or other form), number of pages, author, recipient, date, and the name, current address, and job title or job description of each person presently having custody of or access to a copy of the document.; and . (c) when used in reference to an event, means to state when the event occurred, who was present, and all other facts related to it. 12. “Person” includes all natural persons, corporations, limited liability companies, proprietorships, partnerships, other business associations, firms, joint ventures, public authorities, 5 16-003 EX A - PAGE 5 FILED: WESTCHESTER COUNTY CLERK 07/20/2022 03:57 PM INDEX NO. 60767/2018 NYSCEF DOC. NO. 1434 RECEIVED NYSCEF: 07/20/2022 16-003 EX A - PAGE 6 municipal corporations, state governments, local governments, governmental bodies, and any other legal entities, and the employees or agents of these entities. 13. “Concerning,” “reflecting,” “regarding,” “relating to” or “referring to” means directly or indirectly relating to, referring to, reflecting, pertaining to, describing, evidencing, supporting, constituting, comprising, containing, setting forth, showing, disclosing, defining, discussing, embodying, identifying, stating, dealing with, associated with, describing, explaining, summarizing, mentioning, including, or refuting. 14. All capitalized terms not otherwise defined shall have the meaning provided in the referenced document. Any defined term that is inadvertently not capitalized shall retain the definition provided herein. 15. If You contend that You cannot comply with any request in full, You should comply to the extent possible and provide an explanation as to why full compliance is not possible. 16. For document requests: If any portion of a document is responsive to any request, the entire document must be produced; and you must produce all documents described or requested whether they are drafts, outlines, final versions, or otherwise and/or whether they are or are not identical to any copy or copies thereof, by reason of alterations, notes, comments, initials, underscoring, indication of routing, or other material contained thereon or attached thereto. All such non-identical copies are to be produced separately. In so doing, please furnish documents that are in the possession of Your directors, officers, employees, attorneys, accountants, representatives or agents, or that are otherwise subject to Your custody or control. 6 16-003 EX A - PAGE 6 FILED: WESTCHESTER COUNTY CLERK 07/20/2022 03:57 PM INDEX NO. 60767/2018 NYSCEF DOC. NO. 1434 RECEIVED NYSCEF: 07/20/2022 16-003 EX A - PAGE 7 SPECIFIC INSTRUCTIONS AND DEFINITIONS 17. “Named Plaintiffs” refers to Pamela Goldstein, Paul Benjamin, Tony Berk, and Ellyn Berk and any person who may be added as a class representative in this case. It also includes the Estate of Winifred Berk. 18. “Class Member” refers any member of the class as certified. Currently, this definition can be found at NYSCEF 1072 page 19-20. Houlihan Lawrence reserves the right to m