Preview
FILED: WESTCHESTER COUNTY CLERK 07/15/2022 03:10 PM INDEX NO. 60767/2018
NYSCEF DOC. NO. 1422 RECEIVED NYSCEF: 07/15/2022
Exhibit H to
Donnellan Aff.
FILED: WESTCHESTER COUNTY CLERK 07/06/2022
07/15/2022 09:14
03:10 PM INDEX NO. 60767/2018
NYSCEF DOC. NO. 1410
1422 RECEIVED NYSCEF: 07/06/2022
07/15/2022
PROCEEDINGS - June 28, 2022
Page 1
1 SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF WESTCHESTER
2 -------------------------------------X
PAMELA GOLDSTEIN,
3 ELLYN & TONY BERK, AS ADMINISTRATORS
OF THE ESTATE OF WINNIFRED BERK, AND
4 PAUL BENJAMIN, ON BEHALF OF THEMSELVES
AND ALL OTHERS SIMILARLY SITUATED,
5
Plaintiff(s),
6
-against-
7 INDEX NO.:
60767/2018
8
HOULIHAN/LAWRENCE, INC.,
9
Defendant(s).
10 -------------------------------------X
11
12
June 28, 2022
13 10:06 a.m.
14
15
16
17
18
19 HEARING REPORTED BY:
20 ARALIN M. CAMACHO
21
22
23
24
25
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FILED: WESTCHESTER COUNTY CLERK 07/06/2022
07/15/2022 09:14
03:10 PM INDEX NO. 60767/2018
NYSCEF DOC. NO. 1410
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1 A P P E A R A N C E S:
2 BOIES, SCHILLER, FLEXNER LLP
Attorneys for Plaintiff(s)
3 333 Main Street
Armonk, New York 10504
4 BY: Bill Ohlemeyer
wohlemeyer@bsfllp.com
5 (via videoconference)
6
MINTZ LEVIN COHN FERRIS GLOVSKY
7 Attorneys for Plaintiff(s)
666 3rd Avenue
8 New York,New York10017
BY: Jeremy Vest
9 jvest@Mintz.Com
(via videoconference)
10
11
HOULIHAN/LAWRENCE INC.
12 Attorneys for Defendant(s)
800 Westchester Avenue
13 Rye Brook, New York 10573
(914) 220-7000
14 BY: Matthew Ciulla
matthew.ciulla@macgilllaw.com
15 Robert MacGill
(via videoconference)
16
MACGILL, P.C.
17 Attorneys for Defendant(s)
Circle Tower Building, 55 Monument
18 Circle
Suite 1200C
19 Indianapolis, Indiana 46202
(317) 442-3825
20 BY: Matthew Ciulla
matthew.ciulla@macgilllaw.com
21 Robert MacGill
(via videoconference)
22
23
24
25
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FILED: WESTCHESTER COUNTY CLERK 07/06/2022
07/15/2022 09:14
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NYSCEF DOC. NO. 1410
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1 A P P E A R A N C E S (continued):
2 DELBELLO, DONNELLAN, WEINGARTE
Attorneys for Defendant(s)
3 One North Lexington Avenue
White Plains, New York 10601
4 (914) 681-0200
BY: Nelida Lara
5 nlg@ddw-law.com
(via videoconference)
6
7
8 ALSO PRESENT:
9
William Harrington - Court Appointed
10 Referee
(via videoconference)
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
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FILED: WESTCHESTER COUNTY CLERK 07/06/2022
07/15/2022 09:14
03:10 PM INDEX NO. 60767/2018
NYSCEF DOC. NO. 1410
1422 RECEIVED NYSCEF: 07/06/2022
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1 MR. HARRINGTON: Good morning,
2 everyone. Thank you for joining us.
3 I've had a chance to review
4 the -- the June 20th submissions that
5 you provided; they were helpful and
6 quite frankly, I think they've
7 certainly narrowed -- or I hope they
8 have -- they narrowed the issues in
9 dispute.
10 There are three discrete issues
11 I want to talk about today and what
12 I'm going to do is try to deal with
13 the easiest ones first or the ones
14 that I think are easiest to deal
15 with, And then -- and then proceed to
16 that.
17 I'm going to give each of you
18 an opportunity to make whatever
19 record you want to make in addition
20 to what we have already.
21 I have certain basic questions
22 after that, and then I expect that I
23 will issue a report in recommendation
24 probably by the end of today, if not
25 today, then tomorrow. I'm not going
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NYSCEF DOC. NO. 1410
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1 to do it on the record. I just want
2 to think about certain things based
3 upon the information that I receive
4 from you folks.
5 So with that said, let's deal
6 with the first issue, which is the
7 transaction detail sheets.
8 Based upon the submissions, my
9 understanding is that
10 Houlihan/Lawrence has indicated
11 the -- the ability to gather the
12 information on that document
13 electronically as opposed to a
14 hardcopy. But Matt and Rob, if you
15 can clarify what exactly you're in a
16 position to do.
17 MR. CIULLA: Sure. It's Matt
18 Ciulla. So -- we have a, you know,
19 consulting forensic expert and we
20 believe they'll be able to retrieve
21 the data on the sheet and produce it.
22 It will not be visually identical to
23 a transaction detail sheet, but it
24 should have the information; and I
25 assume that's probably what Mr. Vest
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FILED: WESTCHESTER COUNTY CLERK 07/06/2022
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NYSCEF DOC. NO. 1410
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1 is after anyway, so I think that
2 should satisfy the request.
3 MR. HARRINGTON: Jeremy, had --
4 it would occur to me that it does,
5 but what's your folks' position?
6 MR. VEST: Yeah. We certainly
7 don't -- don't object in principles
8 to -- to produce the information in
9 alternate formats if that eases the
10 burden of collection.
11 I guess I've only got two
12 points. One, I want to the make sure
13 that all of the information that is
14 reflected on the transaction detail
15 sheet will be harvested and conveyed
16 in whatever alternative format that
17 is being provided.
18 We have talked in some of the
19 briefing about the gross commission
20 figures that are reflected on the
21 transaction detail sheet, there's
22 other information that is equally
23 important, including the information
24 about the closing date of the
25 transaction; the contract date of the
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NYSCEF DOC. NO. 1410
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1 transaction; and probably more
2 importantly, the commission split
3 amongst the sales agent.
4 If you go back and look at the
5 briefing at Plat Certification, that
6 information is relied on by
7 Houlihan/Lawrence's comission's
8 processor to determine whether a
9 bonus was paid in connection with the
10 transaction; so that's just the first
11 point, as long as all the information
12 is carried over an alternate format,
13 that's fine.
14 Second is: I just want to make
15 sure that the data is produced in a
16 usable way. It's a little unclear to
17 me exactly what the file format will
18 be. My hope is that it will look a
19 lot like the spreadsheet that was
20 produced with respect all
21 the transaction data, the property
22 address, the closing date, the
23 various dates involved, you know,
24 that obviously the Excel format
25 allows for greater usability. And
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NYSCEF DOC. NO. 1410
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1 so, you know, I just ask for
2 clarification on those two points,
3 but otherwise, that may resolve the
4 issue.
5 MR. HARRINGTON: Matthew.
6 MR. CIULLA: Sure. So on point
7 one, you know, I guess I disagree, or
8 I don't concede the
9 characterizations, but we are -- we
10 gave the expert the consultant
11 several examples and asked them to
12 map the data to be exampled, so we
13 think, you know, they should be able
14 to do it. I'm not a technical
15 expert, but we asked them to do it.
16 On the second point, we'll try
17 to Excel. If it's too big for an
18 Excel file -- I think, sometimes as
19 we do in our other cases, it is
20 called pipe delimited format or
21 something like that, but it's going
22 to be a standard, you know, industry
23 standard format. I just -- I can't
24 tell you exactly what it will be.
25 MR. HARRINGTON: Okay. Well,
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NYSCEF DOC. NO. 1410
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1 that's helpful subject to those two
2 things. And obviously, you know, if
3 your -- if the data is going to be
4 harvested and produced, it needs to
5 be produced. It needs to be
6 complete.
7 And, Jeremy, what I would say
8 to you is, you're still going to get
9 in the file production -- that's
10 ongoing every other week -- data, and
11 you're going to get the actual raw
12 data sheets, so that if there's any
13 discrepancy, you can note it, and
14 we'll resolve it, right? So I think
15 this is a good path forward and this
16 is what -- and that's how we're going
17 to proceed. I'll reflect that in
18 court.
19 All right. So the second issue
20 is the discovery custodians for
21 document production.
22 The question is -- there's
23 going to be 10. The question is:
24 Who are they going to be?
25 And Matthew, I'd like to hear
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NYSCEF DOC. NO. 1410
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1 your folks' position on why, number
2 one, the Myers Brothers should not be
3 included as custodians; and two, why
4 Plaintiff can't designate 10 new
5 folks for merit discovery purposes as
6 opposed to including the folks that
7 were custodians or class and stuff.
8 MR. CIULLA: Yeah. Bill, it's
9 Rob MacGill. Yeah, let me -- I'm
10 going to address these issues.
11 So first, let's turn to the
12 Myers Brothers, and, you know,
13 there's quite a history here with the
14 Myers Brothers and whether they need
15 to be custodians or not. But maybe
16 we should start with some realities
17 here of where we've been for three
18 years. And this has been an odyssey
19 for us, certainly -- really unique in
20 my own experience, whether that's
21 relevant or not, that's for other
22 people to decide.
23 But really unique set of
24 circumstances, so here are some
25 details here that are -- that I think
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FILED: WESTCHESTER COUNTY CLERK 07/06/2022
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NYSCEF DOC. NO. 1410
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1 are quite important to your two
2 questions.
3 The first is, you know, Bill,
4 we've produced already 227,000 pages
5 of documents in this lawsuit, and
6 those documents have been produced in
7 relation -- in relation to custodians
8 that have been identified and
9 litigated ad nauseam. I don't know
10 how many different letters have been
11 exchanged over time in relation to
12 those -- those folks that I've been
13 focused on to date that have yielded,
14 basically, a quarter-million pages of
15 documents.
16 Now critical to both of your
17 questions is the fact that Debbie
18 Dolton is senior manager in the
19 company and has been -- has been a
20 subject to a very active discovery.
21 So when we look at both of your
22 questions, we think that Debbie
23 Dolton-related inquiries in
24 productions are highly relevant.
25 In other words, what's really
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FILED: WESTCHESTER COUNTY CLERK 07/06/2022
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NYSCEF DOC. NO. 1410
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1 needed beyond that senior level
2 that's been given by Debbie Dolton
3 and the discovery there?
4 Here are some facts and figures
5 about Debbie Dolton. She's been
6 produced for deposition -- as you
7 know -- and she's is produced by our
8 estimate -- and I think this is
9 really close -- she's produced
10 22,400 pages of documents, and the
11 documents were completed -- if my
12 memory is right -- in November of
13 2021 --
14 MR. HARRINGTON: 2020.
15 MR. MACGILL: '20. My
16 mistake -- 2020, okay?
17 So for almost two full years,
18 there's been a document set, senior
19 manager in your management level
20 document set that's been produced and
21 has been available for almost two
22 full years in terms of Debbie
23 Dolton of documents; so that's the
24 first point in terms of what's
25 happened at the executive level.
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1 The second thing that's
2 happened at executive level -- we
3 think is equally significant -- and
4 that is that in terms of the
5 executive level and the custodians
6 that have been produced so far,
7 they've been produced according to a
8 massive number of search terms.
9 Those search terms were so
10 unprecedented and so massive that we
11 argued about them for months, and
12 months, and months. But we decided
13 in order to get the certification
14 issues behind us, just to respond to
15 that massive number of search terms
16 in the Dolton executive level
17 productions, okay? So we can't
18 imagine how the document level
19 productions with Debbie Dolton and
20 the senior management level
21 communications could've been more
22 expansive.
23 So you can see where we're
24 going. What's proportional and
25 what's appropriate here, all things
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1 considered? Well, we say it's two
2 things: One, that there is no
3 proportionality to further discovery
4 of the Myers -- of either Myers in
5 terms of them being custodians, but
6 it's worse than that because there's
7 some really -- there's some personal
8 concerns here. The filings by
9 Mr. Vest has been over-the-top
10 personal, and if they were in the
11 context of the -- of the filing,
12 they'd be -- they'd be sued for,
13 right? They'd be defamatory. They
14 are defamatory, but there's a
15 protection that goes along with the
16 court systems, so Vest can make these
17 accusations and have the protection
18 of the filing system against the type
19 of defamation that he's been involved
20 with.
21 Now relative to the Myers being
22 custodians, I think that that conduct
23 by Counsel needs to be considered in
24 two -- two ways. Number one, here's
25 what you wrote in your report in
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1 terms of the -- the claims made about
2 untoward profit motives, being
3 focused on profits that had been
4 directed to the person and the
5 persons of each of these gentlemen.
6 Here's an example of what you
7 wrote. I'm quoting from page 19 of
8 your report: In all relevance,
9 Houlihan/Lawrence is a very
10 successful real estate brokerage
11 firm, so much so that public records
12 reflect HSA's -- that they reflect
13 has acquired the company in 2017.
14 And you continued: Those
15 profit information in the salary or
16 financial benefits by the Myers
17 Brothers or any other HOA executive
18 during the eight-year class period,
19 2011 to 2018, cannot -- repeat --
20 cannot shed any legitimate light on
21 the impact, if any, of the enhanced
22 financial performance of HLI
23 generated by the dual agency related
24 sales. So ruled. So recommended,
25 okay?
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1 Then there's one other citation
2 that I think is really important in
3 terms
Preview
FILED: WESTCHESTER COUNTY CLERK 07/15/2022 03:10 PM INDEX NO. 60767/2018 NYSCEF DOC. NO. 1422 RECEIVED NYSCEF: 07/15/2022 Exhibit H to Donnellan Aff. FILED: WESTCHESTER COUNTY CLERK 07/06/2022 07/15/2022 09:14 03:10 PM INDEX NO. 60767/2018 NYSCEF DOC. NO. 1410 1422 RECEIVED NYSCEF: 07/06/2022 07/15/2022 PROCEEDINGS - June 28, 2022 Page 1 1 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF WESTCHESTER 2 -------------------------------------X PAMELA GOLDSTEIN, 3 ELLYN & TONY BERK, AS ADMINISTRATORS OF THE ESTATE OF WINNIFRED BERK, AND 4 PAUL BENJAMIN, ON BEHALF OF THEMSELVES AND ALL OTHERS SIMILARLY SITUATED, 5 Plaintiff(s), 6 -against- 7 INDEX NO.: 60767/2018 8 HOULIHAN/LAWRENCE, INC., 9 Defendant(s). 10 -------------------------------------X 11 12 June 28, 2022 13 10:06 a.m. 14 15 16 17 18 19 HEARING REPORTED BY: 20 ARALIN M. CAMACHO 21 22 23 24 25 GregoryEdwards, LLC | Worldwide Court Reporting GregoryEdwards.com | 866-4Team GE FILED: WESTCHESTER COUNTY CLERK 07/06/2022 07/15/2022 09:14 03:10 PM INDEX NO. 60767/2018 NYSCEF DOC. NO. 1410 1422 RECEIVED NYSCEF: 07/06/2022 07/15/2022 PROCEEDINGS - June 28, 2022 Page 2 1 A P P E A R A N C E S: 2 BOIES, SCHILLER, FLEXNER LLP Attorneys for Plaintiff(s) 3 333 Main Street Armonk, New York 10504 4 BY: Bill Ohlemeyer wohlemeyer@bsfllp.com 5 (via videoconference) 6 MINTZ LEVIN COHN FERRIS GLOVSKY 7 Attorneys for Plaintiff(s) 666 3rd Avenue 8 New York,New York10017 BY: Jeremy Vest 9 jvest@Mintz.Com (via videoconference) 10 11 HOULIHAN/LAWRENCE INC. 12 Attorneys for Defendant(s) 800 Westchester Avenue 13 Rye Brook, New York 10573 (914) 220-7000 14 BY: Matthew Ciulla matthew.ciulla@macgilllaw.com 15 Robert MacGill (via videoconference) 16 MACGILL, P.C. 17 Attorneys for Defendant(s) Circle Tower Building, 55 Monument 18 Circle Suite 1200C 19 Indianapolis, Indiana 46202 (317) 442-3825 20 BY: Matthew Ciulla matthew.ciulla@macgilllaw.com 21 Robert MacGill (via videoconference) 22 23 24 25 GregoryEdwards, LLC | Worldwide Court Reporting GregoryEdwards.com | 866-4Team GE FILED: WESTCHESTER COUNTY CLERK 07/06/2022 07/15/2022 09:14 03:10 PM INDEX NO. 60767/2018 NYSCEF DOC. NO. 1410 1422 RECEIVED NYSCEF: 07/06/2022 07/15/2022 PROCEEDINGS - June 28, 2022 Page 3 1 A P P E A R A N C E S (continued): 2 DELBELLO, DONNELLAN, WEINGARTE Attorneys for Defendant(s) 3 One North Lexington Avenue White Plains, New York 10601 4 (914) 681-0200 BY: Nelida Lara 5 nlg@ddw-law.com (via videoconference) 6 7 8 ALSO PRESENT: 9 William Harrington - Court Appointed 10 Referee (via videoconference) 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 GregoryEdwards, LLC | Worldwide Court Reporting GregoryEdwards.com | 866-4Team GE FILED: WESTCHESTER COUNTY CLERK 07/06/2022 07/15/2022 09:14 03:10 PM INDEX NO. 60767/2018 NYSCEF DOC. NO. 1410 1422 RECEIVED NYSCEF: 07/06/2022 07/15/2022 PROCEEDINGS - June 28, 2022 Page 4 1 MR. HARRINGTON: Good morning, 2 everyone. Thank you for joining us. 3 I've had a chance to review 4 the -- the June 20th submissions that 5 you provided; they were helpful and 6 quite frankly, I think they've 7 certainly narrowed -- or I hope they 8 have -- they narrowed the issues in 9 dispute. 10 There are three discrete issues 11 I want to talk about today and what 12 I'm going to do is try to deal with 13 the easiest ones first or the ones 14 that I think are easiest to deal 15 with, And then -- and then proceed to 16 that. 17 I'm going to give each of you 18 an opportunity to make whatever 19 record you want to make in addition 20 to what we have already. 21 I have certain basic questions 22 after that, and then I expect that I 23 will issue a report in recommendation 24 probably by the end of today, if not 25 today, then tomorrow. I'm not going GregoryEdwards, LLC | Worldwide Court Reporting GregoryEdwards.com | 866-4Team GE FILED: WESTCHESTER COUNTY CLERK 07/06/2022 07/15/2022 09:14 03:10 PM INDEX NO. 60767/2018 NYSCEF DOC. NO. 1410 1422 RECEIVED NYSCEF: 07/06/2022 07/15/2022 PROCEEDINGS - June 28, 2022 Page 5 1 to do it on the record. I just want 2 to think about certain things based 3 upon the information that I receive 4 from you folks. 5 So with that said, let's deal 6 with the first issue, which is the 7 transaction detail sheets. 8 Based upon the submissions, my 9 understanding is that 10 Houlihan/Lawrence has indicated 11 the -- the ability to gather the 12 information on that document 13 electronically as opposed to a 14 hardcopy. But Matt and Rob, if you 15 can clarify what exactly you're in a 16 position to do. 17 MR. CIULLA: Sure. It's Matt 18 Ciulla. So -- we have a, you know, 19 consulting forensic expert and we 20 believe they'll be able to retrieve 21 the data on the sheet and produce it. 22 It will not be visually identical to 23 a transaction detail sheet, but it 24 should have the information; and I 25 assume that's probably what Mr. Vest GregoryEdwards, LLC | Worldwide Court Reporting GregoryEdwards.com | 866-4Team GE FILED: WESTCHESTER COUNTY CLERK 07/06/2022 07/15/2022 09:14 03:10 PM INDEX NO. 60767/2018 NYSCEF DOC. NO. 1410 1422 RECEIVED NYSCEF: 07/06/2022 07/15/2022 PROCEEDINGS - June 28, 2022 Page 6 1 is after anyway, so I think that 2 should satisfy the request. 3 MR. HARRINGTON: Jeremy, had -- 4 it would occur to me that it does, 5 but what's your folks' position? 6 MR. VEST: Yeah. We certainly 7 don't -- don't object in principles 8 to -- to produce the information in 9 alternate formats if that eases the 10 burden of collection. 11 I guess I've only got two 12 points. One, I want to the make sure 13 that all of the information that is 14 reflected on the transaction detail 15 sheet will be harvested and conveyed 16 in whatever alternative format that 17 is being provided. 18 We have talked in some of the 19 briefing about the gross commission 20 figures that are reflected on the 21 transaction detail sheet, there's 22 other information that is equally 23 important, including the information 24 about the closing date of the 25 transaction; the contract date of the GregoryEdwards, LLC | Worldwide Court Reporting GregoryEdwards.com | 866-4Team GE FILED: WESTCHESTER COUNTY CLERK 07/06/2022 07/15/2022 09:14 03:10 PM INDEX NO. 60767/2018 NYSCEF DOC. NO. 1410 1422 RECEIVED NYSCEF: 07/06/2022 07/15/2022 PROCEEDINGS - June 28, 2022 Page 7 1 transaction; and probably more 2 importantly, the commission split 3 amongst the sales agent. 4 If you go back and look at the 5 briefing at Plat Certification, that 6 information is relied on by 7 Houlihan/Lawrence's comission's 8 processor to determine whether a 9 bonus was paid in connection with the 10 transaction; so that's just the first 11 point, as long as all the information 12 is carried over an alternate format, 13 that's fine. 14 Second is: I just want to make 15 sure that the data is produced in a 16 usable way. It's a little unclear to 17 me exactly what the file format will 18 be. My hope is that it will look a 19 lot like the spreadsheet that was 20 produced with respect all 21 the transaction data, the property 22 address, the closing date, the 23 various dates involved, you know, 24 that obviously the Excel format 25 allows for greater usability. And GregoryEdwards, LLC | Worldwide Court Reporting GregoryEdwards.com | 866-4Team GE FILED: WESTCHESTER COUNTY CLERK 07/06/2022 07/15/2022 09:14 03:10 PM INDEX NO. 60767/2018 NYSCEF DOC. NO. 1410 1422 RECEIVED NYSCEF: 07/06/2022 07/15/2022 PROCEEDINGS - June 28, 2022 Page 8 1 so, you know, I just ask for 2 clarification on those two points, 3 but otherwise, that may resolve the 4 issue. 5 MR. HARRINGTON: Matthew. 6 MR. CIULLA: Sure. So on point 7 one, you know, I guess I disagree, or 8 I don't concede the 9 characterizations, but we are -- we 10 gave the expert the consultant 11 several examples and asked them to 12 map the data to be exampled, so we 13 think, you know, they should be able 14 to do it. I'm not a technical 15 expert, but we asked them to do it. 16 On the second point, we'll try 17 to Excel. If it's too big for an 18 Excel file -- I think, sometimes as 19 we do in our other cases, it is 20 called pipe delimited format or 21 something like that, but it's going 22 to be a standard, you know, industry 23 standard format. I just -- I can't 24 tell you exactly what it will be. 25 MR. HARRINGTON: Okay. Well, GregoryEdwards, LLC | Worldwide Court Reporting GregoryEdwards.com | 866-4Team GE FILED: WESTCHESTER COUNTY CLERK 07/06/2022 07/15/2022 09:14 03:10 PM INDEX NO. 60767/2018 NYSCEF DOC. NO. 1410 1422 RECEIVED NYSCEF: 07/06/2022 07/15/2022 PROCEEDINGS - June 28, 2022 Page 9 1 that's helpful subject to those two 2 things. And obviously, you know, if 3 your -- if the data is going to be 4 harvested and produced, it needs to 5 be produced. It needs to be 6 complete. 7 And, Jeremy, what I would say 8 to you is, you're still going to get 9 in the file production -- that's 10 ongoing every other week -- data, and 11 you're going to get the actual raw 12 data sheets, so that if there's any 13 discrepancy, you can note it, and 14 we'll resolve it, right? So I think 15 this is a good path forward and this 16 is what -- and that's how we're going 17 to proceed. I'll reflect that in 18 court. 19 All right. So the second issue 20 is the discovery custodians for 21 document production. 22 The question is -- there's 23 going to be 10. The question is: 24 Who are they going to be? 25 And Matthew, I'd like to hear GregoryEdwards, LLC | Worldwide Court Reporting GregoryEdwards.com | 866-4Team GE FILED: WESTCHESTER COUNTY CLERK 07/06/2022 07/15/2022 09:14 03:10 PM INDEX NO. 60767/2018 NYSCEF DOC. NO. 1410 1422 RECEIVED NYSCEF: 07/06/2022 07/15/2022 PROCEEDINGS - June 28, 2022 Page 10 1 your folks' position on why, number 2 one, the Myers Brothers should not be 3 included as custodians; and two, why 4 Plaintiff can't designate 10 new 5 folks for merit discovery purposes as 6 opposed to including the folks that 7 were custodians or class and stuff. 8 MR. CIULLA: Yeah. Bill, it's 9 Rob MacGill. Yeah, let me -- I'm 10 going to address these issues. 11 So first, let's turn to the 12 Myers Brothers, and, you know, 13 there's quite a history here with the 14 Myers Brothers and whether they need 15 to be custodians or not. But maybe 16 we should start with some realities 17 here of where we've been for three 18 years. And this has been an odyssey 19 for us, certainly -- really unique in 20 my own experience, whether that's 21 relevant or not, that's for other 22 people to decide. 23 But really unique set of 24 circumstances, so here are some 25 details here that are -- that I think GregoryEdwards, LLC | Worldwide Court Reporting GregoryEdwards.com | 866-4Team GE FILED: WESTCHESTER COUNTY CLERK 07/06/2022 07/15/2022 09:14 03:10 PM INDEX NO. 60767/2018 NYSCEF DOC. NO. 1410 1422 RECEIVED NYSCEF: 07/06/2022 07/15/2022 PROCEEDINGS - June 28, 2022 Page 11 1 are quite important to your two 2 questions. 3 The first is, you know, Bill, 4 we've produced already 227,000 pages 5 of documents in this lawsuit, and 6 those documents have been produced in 7 relation -- in relation to custodians 8 that have been identified and 9 litigated ad nauseam. I don't know 10 how many different letters have been 11 exchanged over time in relation to 12 those -- those folks that I've been 13 focused on to date that have yielded, 14 basically, a quarter-million pages of 15 documents. 16 Now critical to both of your 17 questions is the fact that Debbie 18 Dolton is senior manager in the 19 company and has been -- has been a 20 subject to a very active discovery. 21 So when we look at both of your 22 questions, we think that Debbie 23 Dolton-related inquiries in 24 productions are highly relevant. 25 In other words, what's really GregoryEdwards, LLC | Worldwide Court Reporting GregoryEdwards.com | 866-4Team GE FILED: WESTCHESTER COUNTY CLERK 07/06/2022 07/15/2022 09:14 03:10 PM INDEX NO. 60767/2018 NYSCEF DOC. NO. 1410 1422 RECEIVED NYSCEF: 07/06/2022 07/15/2022 PROCEEDINGS - June 28, 2022 Page 12 1 needed beyond that senior level 2 that's been given by Debbie Dolton 3 and the discovery there? 4 Here are some facts and figures 5 about Debbie Dolton. She's been 6 produced for deposition -- as you 7 know -- and she's is produced by our 8 estimate -- and I think this is 9 really close -- she's produced 10 22,400 pages of documents, and the 11 documents were completed -- if my 12 memory is right -- in November of 13 2021 -- 14 MR. HARRINGTON: 2020. 15 MR. MACGILL: '20. My 16 mistake -- 2020, okay? 17 So for almost two full years, 18 there's been a document set, senior 19 manager in your management level 20 document set that's been produced and 21 has been available for almost two 22 full years in terms of Debbie 23 Dolton of documents; so that's the 24 first point in terms of what's 25 happened at the executive level. GregoryEdwards, LLC | Worldwide Court Reporting GregoryEdwards.com | 866-4Team GE FILED: WESTCHESTER COUNTY CLERK 07/06/2022 07/15/2022 09:14 03:10 PM INDEX NO. 60767/2018 NYSCEF DOC. NO. 1410 1422 RECEIVED NYSCEF: 07/06/2022 07/15/2022 PROCEEDINGS - June 28, 2022 Page 13 1 The second thing that's 2 happened at executive level -- we 3 think is equally significant -- and 4 that is that in terms of the 5 executive level and the custodians 6 that have been produced so far, 7 they've been produced according to a 8 massive number of search terms. 9 Those search terms were so 10 unprecedented and so massive that we 11 argued about them for months, and 12 months, and months. But we decided 13 in order to get the certification 14 issues behind us, just to respond to 15 that massive number of search terms 16 in the Dolton executive level 17 productions, okay? So we can't 18 imagine how the document level 19 productions with Debbie Dolton and 20 the senior management level 21 communications could've been more 22 expansive. 23 So you can see where we're 24 going. What's proportional and 25 what's appropriate here, all things GregoryEdwards, LLC | Worldwide Court Reporting GregoryEdwards.com | 866-4Team GE FILED: WESTCHESTER COUNTY CLERK 07/06/2022 07/15/2022 09:14 03:10 PM INDEX NO. 60767/2018 NYSCEF DOC. NO. 1410 1422 RECEIVED NYSCEF: 07/06/2022 07/15/2022 PROCEEDINGS - June 28, 2022 Page 14 1 considered? Well, we say it's two 2 things: One, that there is no 3 proportionality to further discovery 4 of the Myers -- of either Myers in 5 terms of them being custodians, but 6 it's worse than that because there's 7 some really -- there's some personal 8 concerns here. The filings by 9 Mr. Vest has been over-the-top 10 personal, and if they were in the 11 context of the -- of the filing, 12 they'd be -- they'd be sued for, 13 right? They'd be defamatory. They 14 are defamatory, but there's a 15 protection that goes along with the 16 court systems, so Vest can make these 17 accusations and have the protection 18 of the filing system against the type 19 of defamation that he's been involved 20 with. 21 Now relative to the Myers being 22 custodians, I think that that conduct 23 by Counsel needs to be considered in 24 two -- two ways. Number one, here's 25 what you wrote in your report in GregoryEdwards, LLC | Worldwide Court Reporting GregoryEdwards.com | 866-4Team GE FILED: WESTCHESTER COUNTY CLERK 07/06/2022 07/15/2022 09:14 03:10 PM INDEX NO. 60767/2018 NYSCEF DOC. NO. 1410 1422 RECEIVED NYSCEF: 07/06/2022 07/15/2022 PROCEEDINGS - June 28, 2022 Page 15 1 terms of the -- the claims made about 2 untoward profit motives, being 3 focused on profits that had been 4 directed to the person and the 5 persons of each of these gentlemen. 6 Here's an example of what you 7 wrote. I'm quoting from page 19 of 8 your report: In all relevance, 9 Houlihan/Lawrence is a very 10 successful real estate brokerage 11 firm, so much so that public records 12 reflect HSA's -- that they reflect 13 has acquired the company in 2017. 14 And you continued: Those 15 profit information in the salary or 16 financial benefits by the Myers 17 Brothers or any other HOA executive 18 during the eight-year class period, 19 2011 to 2018, cannot -- repeat -- 20 cannot shed any legitimate light on 21 the impact, if any, of the enhanced 22 financial performance of HLI 23 generated by the dual agency related 24 sales. So ruled. So recommended, 25 okay? GregoryEdwards, LLC | Worldwide Court Reporting GregoryEdwards.com | 866-4Team GE FILED: WESTCHESTER COUNTY CLERK 07/06/2022 07/15/2022 09:14 03:10 PM INDEX NO. 60767/2018 NYSCEF DOC. NO. 1410 1422 RECEIVED NYSCEF: 07/06/2022 07/15/2022 PROCEEDINGS - June 28, 2022 Page 16 1 Then there's one other citation 2 that I think is really important in 3 terms