Preview
FILED: WESTCHESTER COUNTY CLERK 07/20/2022 03:57 PM INDEX NO. 60767/2018
NYSCEF DOC. NO. 1436 RECEIVED NYSCEF: 07/20/2022
FILED: WESTCHESTER COUNTY CLERK 07/20/2022 03:57 PM INDEX NO. 60767/2018
NYSCEF DOC. NO. 1436 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 REPLY IN SUPPORT OF ITS MOTION FOR
PROTECTIVE ORDER REGARDING CLASS MEMBER LIST (No. 16-002)
Plaintiffs’ request for 2,000 mini trials defeats the purpose of the class action mechanism.
Plaintiffs reassert their request that Houlihan Lawrence provide a “short, plain explanation for
each [of the supposed 2,000] Omitted Transaction[s],” arguing that these explanations are
“essential for Class Plaintiffs and the Court to assess whether the Omitted Transactions are
within the Class definition.” Vest to Harrington, May 25, 2022, at 5-6.
Although Plaintiffs have seemingly thought better of their earlier demand 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,” Plaintiffs’ request remains a procedurally improper attempt to shift their burden to
Houlihan Lawrence and demands the parties undertake an unduly burdensome process that
would require 2,000 mini-trials, defeating the class action mechanism.
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To support their argument, Plaintiffs cite to a hearing transcript from October 2018, only
three months after this suit was filed. Id. at 5. Plaintiffs ignore the plain language of Houlihan
Lawrence’s statement—step one was to harvest MLS data. Following more than three years of
pre-class certification discovery, Houlihan Lawrence has now determined that the next step is to
harvest the Class List information from its Profit Power database, which it determined, after
years of investigation and fact development, was a more accurate repository of transaction
information.
Houlihan Lawrence has already explained the exact technical parameters utilized in
generating the Class List from Profit Power:
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. Plaintiffs have offered no basis upon which they challenge this method of
determining whether any individual transaction properly falls within the class definition.
Profit Power is the system of record utilized by Houlihan Lawrence to record sales
transactions and commissions collected. The previous MLS list included class members from
transactions that did not meet the class criteria, according to the data entered into Profit Power,
including, by way of example only, transactions with a close date outside of the date range,
unfinalized transactions, commercial properties, rental transactions, transactions that did not
2
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have Houlihan Lawrence on both sides, subject properties not located in Westchester, Putnam or
Dutchess county, etc.
The only way to proceed on a classwide basis is to develop parameters to query Profit
Power and to utilize the resultant list. This is exactly what Houlihan Lawrence did. What
Plaintiffs suggest is an abandonment of the class action mechanism and a resort to an individual
negotiation over each one of 2,000 transactions they contend should be in this lawsuit. This is not
proper. Such individual investigation and determination defeats the purpose of the class action
mechanism. Evans v. Johnstown, 470 N.Y.S.2d 451, 452 (3d Dept. 1983) (“[I]ndividualized
investigation, proof and determination . . . precludes a finding of predominance of common
questions of law or fact.”).
Plaintiffs also attempt to surreptitiously shift their burden to Houlihan Lawrence,
asserting for the first time in their May 25 submission that, alternatively, Houlihan Lawrence
should produce the “transaction file” for each “Omitted Transaction” accompanied by the “last
known physical mailing and email address for each party to those transaction[s] so that Class
Plaintiffs can evaluate HL’s attempt to exclude those presumptive Class members from the Class
and send them notice of this certified class action in the meantime.” Vest to Harrington, May 25,
2022, at 6. Identifying and notifying the class members Plaintiffs represent is Plaintiffs’ burden,
not Houlihan Lawrence’s. 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 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). It makes no sense to notify people not in the class of this class
action.
3
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Further, Plaintiffs agreed, and the Court so ordered, that Plaintiffs will update the class
members’ last-known mailing addresses and produce the updated list to Houlihan Lawrence
upon its creation. See NYSCEF Doc. No. 1083 at ¶ 1(e); see also Motion 16-003. Houlihan
Lawrence once again rejects Plaintiffs’ attempt to shift the burden of prosecuting the lawsuit they
chose to bring.
Plaintiffs’ request, for an individual assessment and negotiation over 2,000 transactions,
would require, at a bare minimum, fifteen minutes of assessment and discussion per transaction.
Given the 2,000 transactions Plaintiffs assert were improperly omitted, the parties would require
approximately five hundred (500) working hours, or sixty-two and one half (62.5) full eight-hour
business days, to complete the procedure. This would severely disrupt the proceedings. It should
not be ordered.
Dated: June 1, 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.
16-002 EX A PAGE 1
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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 REPLY IN SUPPORT OF ITS MOTION TO COMPEL
COMPLIANCE WITH COURT ORDER (No. 16-003)
I. Plaintiffs Should be Compelled to Comply with the Court’s Order to Produce
the Updated Address List.
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).
Plaintiffs cannot escape what has been ordered by the Court, nor can they unilaterally
assert a conditional “agreement” that does not exist—Plaintiffs must update the class members’
last known mailing addresses, and, upon completion, must produce a list of those updated
addresses to Houlihan Lawrence. NYSCEF Doc. No. 1083, at ¶ 1(e). The Court’s order contains
no conditional language regarding the form class notification will take. Id. (“Plaintiffs have
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agreed to update the mailing addresses within the Potential Class Member Data. Plaintiffs shall
produce any updated address list(s) to Houlihan Lawrence upon their creation.”). Nor does it
support Plaintiffs’ argument that they “are under no obligation to pay to update physical mailing
addresses”—in fact, quite the opposite: Plaintiffs have been ordered by the Court to undertake
the process of updating class member’s last known addresses. Id. They are, therefore, obligated
to do so. Id.
Houlihan Lawrence does not seek to “relitigate” this issue. Houlihan Lawrence requests
that Plaintiffs be ordered to comply with the Court’s Order. Any attempt by Plaintiffs to forego
their obligations is nothing but a transparent attempt to generate yet more delay in these
proceedings. Plaintiffs’ repudiation of the Court’s order must not be allowed.
Dated: June 1, 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
2
FILED: WESTCHESTER COUNTY CLERK 07/20/2022 03:57 PM INDEX NO. 60767/2018
NYSCEF DOC. NO. 1436 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. 16-004
)
V. )
)
HOULIHAN/LAWRENCE, INC., )
)
DEFENDANT. )
HOULIHAN LAWRENCE’S REPLY IN SUPPORT OF ITS MOTION FOR
PROTECTIVE ORDER REGARDING REQUESTED DECEMBER 31, 2022
DISCOVERY CUTOFF (No. 16-004)
Plaintiffs reassert their demand that the Discovery Referee recommend a December 31,
2022 discovery cutoff. Vest to Harrington, May 25, 2022, at 7-8. This demand is only separated
by one page from Plaintiffs’ request that the parties undertake a minimum five-hundred (500)
hour process to determine who is properly part of the class, see Vest to Harrington, May 25,
2022, at 5-6; see also Houlihan Lawrence’s Reply in Support of Motion 16-003, and only two
pages from Plaintiffs’ demand that Houlihan Lawrence designate 200 document custodians and
run 166 search terms. Vest to Harrington, May 25, 2022, at 10-12. This request, in the midst of
myriad discovery disputes and considering Plaintiffs’ expansive discovery requests, does nothing
but position the parties for failure.
Plaintiffs’ argument regarding Commercial Division Rule 13(c) highlights the
unreasonable nature of Plaintiffs’ demand. Taking Plaintiffs argument that Commercial Division
Rule 13 only sets an “outer boundary” on the time parties are allotted to complete expert
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discovery as true,1 the parties would need to meet and confer on an expert discovery schedule,
exchange expert reports, and complete expert depositions while fact discovery is ongoing. This
makes no sense. Expert reports are necessarily informed by record evidence produced and
adduced during the fact discovery period. See generally, e.g., NYSCEF Doc. No. 694, Affidavit
of Thomas Cusack (citing voluminous testimony and documentary evidence produced by
Houlihan Lawrence throughout pre-class certification discovery). Plaintiffs’ attempt to short-
circuit this thoughtfully developed procedure constitutes an impermissible attempt to undercut
Houlihan Lawrence’s opportunity to develop and defend any expert testimony it wishes to
present.
Plaintiffs’ pre-class certification conduct cannot be ignored either—if Plaintiffs were
concerned with the public’s interest, they would have complied with CPLR § 901 and submitted
their motion for class certification “[w]ithin sixty days after the time to serve a responsive
pleading [had] expired.” CPLR § 901. Instead, they manufactured discovery disputes to delay
these proceedings and exceeded New York’s class certification deadline by at least twenty-six
months. Compare NYSCEF Doc. No. 559 (Houlihan Lawrence’s Answer, filed July 1, 2019);
with NYSCEF Doc. No. 688 (Plaintiffs’ Motion for Class Certification, filed November 1, 2021).
They continue to do so now.
1
The Discovery Referee should not do so. The Commercial Division Rules’ stated “primary
goal” is “the cost-effective, predictable and fair adjudication of complex commercial cases.”
Preamble to the Commercial Division Rules. The Rules were produced “through the work of the
Commercial Division Advisory Council—a committee of commercial practitioners, corporate in-
house counsel and jurists devoted to the Division’s excellence.” Id. at § (2). The time limitations
and allocations included in the Commercial Division Rules are not mere suggestions, but are the
product of careful deliberation, considerable commercial litigation experience, and diverse input.
Plaintiffs’ attempt to sweep the Rules aside in favor of their preferred schedule should be
disregarded.
2
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To the extent the Discovery Referee determines an interim December 31, 2022 deadline
for substantial completion of both fact and expert discovery is attainable, which it is not,
Houlihan Lawrence strongly objects to entry of any discovery cutoff before the parties have fully
resolved their present disputes. Houlihan Lawrence requests the Discovery Referee hold this
issue in abeyance until October 31, 2022, when the parties can file informed affidavits with
updates on their respective discovery progress.
Dated: June 1, 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
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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. 16-005
)
V. )
)
HOULIHAN/LAWRENCE, INC., )
)
DEFENDANT. )
HOULIHAN LAWRENCE’S REPLY IN SUPPORT OF ITS MOTION FOR
PROTECTIVE ORDER REGARDING PROPOSED TWENTY-ONE-DAY
PRODUCTION DEADLINE (No. 16-005)
Plaintiffs now suggest that the Referee grant Houlihan Lawrence “[a]t most . . [a] 30-day
production window” following the Court’s confirmation of the forthcoming report and
recommendation to complete its document productions. Vest to Harrington, May 25, 2022, at 9.
Tellingly, Plaintiffs still refuse to suggest a deadline for themselves, and fail to address the fact
that they have not produced a single document in response to Houlihan Lawrence’s document
requests. Houlihan Lawrence has, however, produced the Class Member List and its first and
second rolling productions of Transaction Files. It will produce its third rolling production of
Transaction Files this Friday, June 3.
Plaintiffs’ strained argument that Houlihan Lawrence should have been working on
completing document productions, and that it “has already had more than a month longer than
the CPLR and the 14th R&R afforded it to complete its production,” makes no sense. Vest to
Harrington, May 25, 2022, at 9. Plaintiffs have only now, in their May 25 submission, decided to
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identify their requested six sales agent document custodians. Id. at 11. It is impossible for
Houlihan Lawrence to have begun searching the email boxes of custodians Plaintiffs refused to
identify until last week. Further, Houlihan Lawrence objects to many of the document custodians
Plaintiffs decided to identify earlier. See Houlihan Lawrence’s Motion 16-007. Insisting that
Houlihan Lawrence begin the complicated process of document collection, analysis, and
production before the threshold issue of the document custodians’ identities has been adjudicated
is a transparent attempt at abuse and harassment.
Houlihan Lawrence also objects to the number of Plaintiffs’ search terms (one hundred
sixty six). Once that issue is resolved, Houlihan Lawrence will require individual briefing on
each search term that is unreasonable. Houlihan Lawrence cannot begin reviewing emails until
the (A) number and (B) identity of (C) custodians and (D) search terms is firmly set. None of
these four prerequisites have been met as of this writing.
Allowing only twenty-one or thirty days to complete this process is an impractical
timeline that is impossible to achieve. This approach is untenable and prejudicial to Houlihan
Lawrence’s substantive and procedural rights.
Dated: June 1, 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
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. 16-006
)
V. )
)
HOULIHAN/LAWRENCE, INC., )
)
DEFENDANT. )
HOULIHAN LAWRENCE’S MOTION FOR PROTECTIVE ORDER REGARDING
PLAINTIFFS’ PROPOSED DEPONENT LIST (No. 16-006)
Plaintiffs refuse to engage with the arguments and well settled New York caselaw
Houlihan Lawrence submitted in support of Motion 16-006, dated May 19, 2022. Instead,
Plaintiffs continue their pre-class certification pattern of manufacturing disputes and delay. Their
continued attempts to delay these proceedings and propagate endless discovery disputes should
not be allowed.
Plaintiffs request that the “Discovery Referee . . . deny [Motion 16-006] without
prejudice to refiling at the appropriate time so that the Discovery Referee may decide the
potential . . . discovery disputes raised in [Motion 16-006] once they have ripened into actual
disputes, on a more complete documentary record, and alongside any deposition discovery issue
that Class Plaintiffs wish to raise.” Vest to Harrington, May 25, 2022, at 10. In the alternative,
Plaintiffs attempt to further delay the issuance of the Sixteenth Report and Recommendation and
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“request seven days from the date of the Discovery Referee’s decision [on Motion 16-006] to
submit their opposition to the Motion and any cross-motion on deposition discovery issues.” Id.
Plaintiffs’ argument fails in the face of the voluminous record in this case. Plaintiffs have
received from Houlihan Lawrence no less than 189,868 pages of documents, 176 answers to
notices to admit, 60 answers to requests for production, and 13 answers to interrogatories. The
parties and the Discovery Referee have had nearly four years to examine the record evidence in
this case. Plaintiffs’ new excuses for delay are unavailing. Houlihan Lawrence requests this issue
be resolved now so that the parties may expeditiously move this case toward resolution.
Dated: June 1, 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
2
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NYSCEF DOC. NO. 1436 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. 16-007
)
V. )
)
HOULIHAN/LAWRENCE, INC., )
)
DEFENDANT. )
HOULIHAN LAWRENCE’S REPLY IN SUPPORT OF ITS MOTION FOR
PROTECTIVE ORDER AND STRUCTURED BRIEFING REGARDING PLAINTIFFS’
REQUEST FOR 200 DOCUMENT CUSTODIANS (No. 16-007)
I. Plaintiffs’ Fishing Expedition is Abusive and Unduly Burdensome
Plaintiffs refuse to engage with both New York law and Houlihan Lawrence’s reasonable
offer to meet and confer with Plaintiffs to choose two (2) additional document custodians in
addition to the 187 custodians from whom Houlihan Lawrence has already collected and
produced responsive documents. See Vest to Harrington, May 25, 2022, at 10-11. Plaintiffs also
refuse to acknowledge Houlihan Lawrence’s offer to designate Geoffrey Berry and Cynthia
Landis as merits document custodians. Id. In an attempt to “nip” Houlihan Lawrence’s
objections “in the bud,” Plaintiffs hastily designate six Houlihan Lawrence sales agents as
document custodians, summarily identifying them as “top producers.”
Plaintiffs’ “fishing expedition” must end. Cf. Auerbach, 30 A.D.3d at 452.
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II. Plaintiffs’ Demands are Palpably Improper and Should be Vacated in Their
Entirety
Plaintiffs refuse to acknowledge New York law clearly providing that the “appropriate
remedy” in cases of palpably improper discovery demands is “vacat[ing] the entire demand
rather than to prun[ing] it.” Cobble Hill Health Ctr., Inc., 22 A.D.3d at 621. Discovery demands
are “palpably improper” when “they [are] overbroad, burdensome, fail[] to specify with
reasonable particularity many of the documents demanded, or s[eek] irrelevant information.”
Astudillo v. St. Francis-Beacon Extended Care Facility, Inc., 12 A.D.3d 469, 470 (2d Dept.
2004).
Plaintiffs’ demands are palpably improper. A request for 200 document custodians,
whose email boxes Plaintiffs demand be subjected to 166 search terms, see Houlihan Lawrence
Motion 16-008, is overbroad by any measure. Document custodians are routinely limited to
fewer than ten in complex commercial disputes across the country. See, e.g., CPI Card Grp., Inc.
v. Dwyer, No. 17-3983, 2018 U.S. Dist. LEXIS 171504, at *3 (D. Minn. Oct. 4, 2018) (“To the
extent the requests call for the production of emails, Plaintiffs must identify no more than five
email custodians.”); Waste Action Project v. Perdue Foods LLC, No. C20-0836-JCC, 2021 U.S.
Dist. LEXIS 17679, at *1-2 (W.D. Wa., Jan. 29, 2021) (“Within 30 days after the Rule 26(f)
conference . . . each party shall disclose: 1. Custodians. The five custodians most likely to have
discoverable ESI in their possession, custody or control.”); Nervo Corp. v. Boston Sci. Corp., No.
16-cv-06830-VC, 2021 U.S. Dist. LEXIS 96727, at *9 (“At this point, the Court thus will not
adopt Nervo’s proposition of 13 custodians and 10 search terms per custodian. The Court finds
BSC’s compromise of 7 custodians and 7 search terms per custodian is appropriate. Although
Nervo refers to a number of individuals whose emails may be relevant to its claims, it does not
2
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explain how information from additional custodians would not be duplicative, and more
importantly, how it would be proportionate to the needs of this case.”).
Given Plaintiffs’ claims that this case is amenable to classwide resolution based on their
allegation that Houlihan Lawrence engaged in a “centrally orchestrated strategy . . . to boost in-
house sales” by providing its agents with “uniform training, script, and other ‘model
disclosures,” see NYSCEF Doc. No. 688 at 24, Plaintiffs have failed to explain why the
designation of document custodians beyond the two (2) office managers and two (2) additional
agreed custodians would not result in irrelevant, “duplicative,” and disproportionate discovery.
Cf. Nervo, U.S. Dist. LEXIS 96727, at *9.
Plaintiffs’ request for document custodians should be stricken in its entirety, and
Plaintiffs should be instructed to engage with Houlihan Lawrence in a meet and confer process to
designate two (2) document custodians in addition to Geoffrey Berry and Cynthia Landis if the
Referee deems that number of custodians appropriate.
Dated: June 1, 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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NYSCEF DOC. NO. 1436 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. 16-008
)
V. )
)
HOULIHAN/LAWRENCE, INC., )
)
DEFENDANT. )
HOULIHAN LAWRENCE’S REPLY IN SUPPORT OF ITS MOTION FOR
PROTECTIVE ORDER AND STRUCTURED BRIEFING REGARDING PLAINTIFFS’
REQUEST FOR 166 SEARCH TERMS (No. 16-008)
I. Plaintiffs’ Request for 166 Search Terms is Palpably Improper Because
Each Boolean Term Must Be Considered Separately
Houlihan Lawrence does not refuse to “acknowledge the obvious distinction between
search terms and search limiters to manufacture the appearance of an unduly burdensome search
protocol.” Vest to Harrington, May 25, 2022, at 12. Unlike Plaintiffs, Houlihan Lawrence relies
on well-settled case law for the proposition that each Boolean term must be counted separately.
As the United States District Court explained in Madrid v. CertainTeed, LLC:
A conjunctive combination of multiple words or phrases (e.g. “computer” and
“system”) narrows the search and shall count as a single search term. A
disjunctive combination of multiple words or phrases (e.g. “computer” or
“system”) broadens the search, and thus each word or phrase shall count as a
separate search term unless they are variants of the same word.
No. C20-1285-JCC, 2021 U.S. Dist. LEXIS 9849, at *4 (W.D. Wa. Jan. 19, 2021).
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NYSCEF DOC. NO. 1436 RECEIVED NYSCEF: 07/20/2022
Each of Plaintiffs’ “limiters,” in combination with the base search term, count as a single search
term that must be applied against any collected custodial files one-by
Preview
FILED: WESTCHESTER COUNTY CLERK 07/20/2022 03:57 PM INDEX NO. 60767/2018 NYSCEF DOC. NO. 1436 RECEIVED NYSCEF: 07/20/2022 FILED: WESTCHESTER COUNTY CLERK 07/20/2022 03:57 PM INDEX NO. 60767/2018 NYSCEF DOC. NO. 1436 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 REPLY IN SUPPORT OF ITS MOTION FOR PROTECTIVE ORDER REGARDING CLASS MEMBER LIST (No. 16-002) Plaintiffs’ request for 2,000 mini trials defeats the purpose of the class action mechanism. Plaintiffs reassert their request that Houlihan Lawrence provide a “short, plain explanation for each [of the supposed 2,000] Omitted Transaction[s],” arguing that these explanations are “essential for Class Plaintiffs and the Court to assess whether the Omitted Transactions are within the Class definition.” Vest to Harrington, May 25, 2022, at 5-6. Although Plaintiffs have seemingly thought better of their earlier demand 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,” Plaintiffs’ request remains a procedurally improper attempt to shift their burden to Houlihan Lawrence and demands the parties undertake an unduly burdensome process that would require 2,000 mini-trials, defeating the class action mechanism. FILED: WESTCHESTER COUNTY CLERK 07/20/2022 03:57 PM INDEX NO. 60767/2018 NYSCEF DOC. NO. 1436 RECEIVED NYSCEF: 07/20/2022 To support their argument, Plaintiffs cite to a hearing transcript from October 2018, only three months after this suit was filed. Id. at 5. Plaintiffs ignore the plain language of Houlihan Lawrence’s statement—step one was to harvest MLS data. Following more than three years of pre-class certification discovery, Houlihan Lawrence has now determined that the next step is to harvest the Class List information from its Profit Power database, which it determined, after years of investigation and fact development, was a more accurate repository of transaction information. Houlihan Lawrence has already explained the exact technical parameters utilized in generating the Class List from Profit Power: 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. Plaintiffs have offered no basis upon which they challenge this method of determining whether any individual transaction properly falls within the class definition. Profit Power is the system of record utilized by Houlihan Lawrence to record sales transactions and commissions collected. The previous MLS list included class members from transactions that did not meet the class criteria, according to the data entered into Profit Power, including, by way of example only, transactions with a close date outside of the date range, unfinalized transactions, commercial properties, rental transactions, transactions that did not 2 FILED: WESTCHESTER COUNTY CLERK 07/20/2022 03:57 PM INDEX NO. 60767/2018 NYSCEF DOC. NO. 1436 RECEIVED NYSCEF: 07/20/2022 have Houlihan Lawrence on both sides, subject properties not located in Westchester, Putnam or Dutchess county, etc. The only way to proceed on a classwide basis is to develop parameters to query Profit Power and to utilize the resultant list. This is exactly what Houlihan Lawrence did. What Plaintiffs suggest is an abandonment of the class action mechanism and a resort to an individual negotiation over each one of 2,000 transactions they contend should be in this lawsuit. This is not proper. Such individual investigation and determination defeats the purpose of the class action mechanism. Evans v. Johnstown, 470 N.Y.S.2d 451, 452 (3d Dept. 1983) (“[I]ndividualized investigation, proof and determination . . . precludes a finding of predominance of common questions of law or fact.”). Plaintiffs also attempt to surreptitiously shift their burden to Houlihan Lawrence, asserting for the first time in their May 25 submission that, alternatively, Houlihan Lawrence should produce the “transaction file” for each “Omitted Transaction” accompanied by the “last known physical mailing and email address for each party to those transaction[s] so that Class Plaintiffs can evaluate HL’s attempt to exclude those presumptive Class members from the Class and send them notice of this certified class action in the meantime.” Vest to Harrington, May 25, 2022, at 6. Identifying and notifying the class members Plaintiffs represent is Plaintiffs’ burden, not Houlihan Lawrence’s. 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 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). It makes no sense to notify people not in the class of this class action. 3 FILED: WESTCHESTER COUNTY CLERK 07/20/2022 03:57 PM INDEX NO. 60767/2018 NYSCEF DOC. NO. 1436 RECEIVED NYSCEF: 07/20/2022 Further, Plaintiffs agreed, and the Court so ordered, that Plaintiffs will update the class members’ last-known mailing addresses and produce the updated list to Houlihan Lawrence upon its creation. See NYSCEF Doc. No. 1083 at ¶ 1(e); see also Motion 16-003. Houlihan Lawrence once again rejects Plaintiffs’ attempt to shift the burden of prosecuting the lawsuit they chose to bring. Plaintiffs’ request, for an individual assessment and negotiation over 2,000 transactions, would require, at a bare minimum, fifteen minutes of assessment and discussion per transaction. Given the 2,000 transactions Plaintiffs assert were improperly omitted, the parties would require approximately five hundred (500) working hours, or sixty-two and one half (62.5) full eight-hour business days, to complete the procedure. This would severely disrupt the proceedings. It should not be ordered. Dated: June 1, 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. 1436 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. 1436 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. 1436 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 REPLY IN SUPPORT OF ITS MOTION TO COMPEL COMPLIANCE WITH COURT ORDER (No. 16-003) I. Plaintiffs Should be Compelled to Comply with the Court’s Order to Produce the Updated Address List. 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). Plaintiffs cannot escape what has been ordered by the Court, nor can they unilaterally assert a conditional “agreement” that does not exist—Plaintiffs must update the class members’ last known mailing addresses, and, upon completion, must produce a list of those updated addresses to Houlihan Lawrence. NYSCEF Doc. No. 1083, at ¶ 1(e). The Court’s order contains no conditional language regarding the form class notification will take. Id. (“Plaintiffs have FILED: WESTCHESTER COUNTY CLERK 07/20/2022 03:57 PM INDEX NO. 60767/2018 NYSCEF DOC. NO. 1436 RECEIVED NYSCEF: 07/20/2022 agreed to update the mailing addresses within the Potential Class Member Data. Plaintiffs shall produce any updated address list(s) to Houlihan Lawrence upon their creation.”). Nor does it support Plaintiffs’ argument that they “are under no obligation to pay to update physical mailing addresses”—in fact, quite the opposite: Plaintiffs have been ordered by the Court to undertake the process of updating class member’s last known addresses. Id. They are, therefore, obligated to do so. Id. Houlihan Lawrence does not seek to “relitigate” this issue. Houlihan Lawrence requests that Plaintiffs be ordered to comply with the Court’s Order. Any attempt by Plaintiffs to forego their obligations is nothing but a transparent attempt to generate yet more delay in these proceedings. Plaintiffs’ repudiation of the Court’s order must not be allowed. Dated: June 1, 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 2 FILED: WESTCHESTER COUNTY CLERK 07/20/2022 03:57 PM INDEX NO. 60767/2018 NYSCEF DOC. NO. 1436 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. 16-004 ) V. ) ) HOULIHAN/LAWRENCE, INC., ) ) DEFENDANT. ) HOULIHAN LAWRENCE’S REPLY IN SUPPORT OF ITS MOTION FOR PROTECTIVE ORDER REGARDING REQUESTED DECEMBER 31, 2022 DISCOVERY CUTOFF (No. 16-004) Plaintiffs reassert their demand that the Discovery Referee recommend a December 31, 2022 discovery cutoff. Vest to Harrington, May 25, 2022, at 7-8. This demand is only separated by one page from Plaintiffs’ request that the parties undertake a minimum five-hundred (500) hour process to determine who is properly part of the class, see Vest to Harrington, May 25, 2022, at 5-6; see also Houlihan Lawrence’s Reply in Support of Motion 16-003, and only two pages from Plaintiffs’ demand that Houlihan Lawrence designate 200 document custodians and run 166 search terms. Vest to Harrington, May 25, 2022, at 10-12. This request, in the midst of myriad discovery disputes and considering Plaintiffs’ expansive discovery requests, does nothing but position the parties for failure. Plaintiffs’ argument regarding Commercial Division Rule 13(c) highlights the unreasonable nature of Plaintiffs’ demand. Taking Plaintiffs argument that Commercial Division Rule 13 only sets an “outer boundary” on the time parties are allotted to complete expert FILED: WESTCHESTER COUNTY CLERK 07/20/2022 03:57 PM INDEX NO. 60767/2018 NYSCEF DOC. NO. 1436 RECEIVED NYSCEF: 07/20/2022 discovery as true,1 the parties would need to meet and confer on an expert discovery schedule, exchange expert reports, and complete expert depositions while fact discovery is ongoing. This makes no sense. Expert reports are necessarily informed by record evidence produced and adduced during the fact discovery period. See generally, e.g., NYSCEF Doc. No. 694, Affidavit of Thomas Cusack (citing voluminous testimony and documentary evidence produced by Houlihan Lawrence throughout pre-class certification discovery). Plaintiffs’ attempt to short- circuit this thoughtfully developed procedure constitutes an impermissible attempt to undercut Houlihan Lawrence’s opportunity to develop and defend any expert testimony it wishes to present. Plaintiffs’ pre-class certification conduct cannot be ignored either—if Plaintiffs were concerned with the public’s interest, they would have complied with CPLR § 901 and submitted their motion for class certification “[w]ithin sixty days after the time to serve a responsive pleading [had] expired.” CPLR § 901. Instead, they manufactured discovery disputes to delay these proceedings and exceeded New York’s class certification deadline by at least twenty-six months. Compare NYSCEF Doc. No. 559 (Houlihan Lawrence’s Answer, filed July 1, 2019); with NYSCEF Doc. No. 688 (Plaintiffs’ Motion for Class Certification, filed November 1, 2021). They continue to do so now. 1 The Discovery Referee should not do so. The Commercial Division Rules’ stated “primary goal” is “the cost-effective, predictable and fair adjudication of complex commercial cases.” Preamble to the Commercial Division Rules. The Rules were produced “through the work of the Commercial Division Advisory Council—a committee of commercial practitioners, corporate in- house counsel and jurists devoted to the Division’s excellence.” Id. at § (2). The time limitations and allocations included in the Commercial Division Rules are not mere suggestions, but are the product of careful deliberation, considerable commercial litigation experience, and diverse input. Plaintiffs’ attempt to sweep the Rules aside in favor of their preferred schedule should be disregarded. 2 FILED: WESTCHESTER COUNTY CLERK 07/20/2022 03:57 PM INDEX NO. 60767/2018 NYSCEF DOC. NO. 1436 RECEIVED NYSCEF: 07/20/2022 To the extent the Discovery Referee determines an interim December 31, 2022 deadline for substantial completion of both fact and expert discovery is attainable, which it is not, Houlihan Lawrence strongly objects to entry of any discovery cutoff before the parties have fully resolved their present disputes. Houlihan Lawrence requests the Discovery Referee hold this issue in abeyance until October 31, 2022, when the parties can file informed affidavits with updates on their respective discovery progress. Dated: June 1, 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. 1436 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. 16-005 ) V. ) ) HOULIHAN/LAWRENCE, INC., ) ) DEFENDANT. ) HOULIHAN LAWRENCE’S REPLY IN SUPPORT OF ITS MOTION FOR PROTECTIVE ORDER REGARDING PROPOSED TWENTY-ONE-DAY PRODUCTION DEADLINE (No. 16-005) Plaintiffs now suggest that the Referee grant Houlihan Lawrence “[a]t most . . [a] 30-day production window” following the Court’s confirmation of the forthcoming report and recommendation to complete its document productions. Vest to Harrington, May 25, 2022, at 9. Tellingly, Plaintiffs still refuse to suggest a deadline for themselves, and fail to address the fact that they have not produced a single document in response to Houlihan Lawrence’s document requests. Houlihan Lawrence has, however, produced the Class Member List and its first and second rolling productions of Transaction Files. It will produce its third rolling production of Transaction Files this Friday, June 3. Plaintiffs’ strained argument that Houlihan Lawrence should have been working on completing document productions, and that it “has already had more than a month longer than the CPLR and the 14th R&R afforded it to complete its production,” makes no sense. Vest to Harrington, May 25, 2022, at 9. Plaintiffs have only now, in their May 25 submission, decided to FILED: WESTCHESTER COUNTY CLERK 07/20/2022 03:57 PM INDEX NO. 60767/2018 NYSCEF DOC. NO. 1436 RECEIVED NYSCEF: 07/20/2022 identify their requested six sales agent document custodians. Id. at 11. It is impossible for Houlihan Lawrence to have begun searching the email boxes of custodians Plaintiffs refused to identify until last week. Further, Houlihan Lawrence objects to many of the document custodians Plaintiffs decided to identify earlier. See Houlihan Lawrence’s Motion 16-007. Insisting that Houlihan Lawrence begin the complicated process of document collection, analysis, and production before the threshold issue of the document custodians’ identities has been adjudicated is a transparent attempt at abuse and harassment. Houlihan Lawrence also objects to the number of Plaintiffs’ search terms (one hundred sixty six). Once that issue is resolved, Houlihan Lawrence will require individual briefing on each search term that is unreasonable. Houlihan Lawrence cannot begin reviewing emails until the (A) number and (B) identity of (C) custodians and (D) search terms is firmly set. None of these four prerequisites have been met as of this writing. Allowing only twenty-one or thirty days to complete this process is an impractical timeline that is impossible to achieve. This approach is untenable and prejudicial to Houlihan Lawrence’s substantive and procedural rights. Dated: June 1, 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 2 FILED: WESTCHESTER COUNTY CLERK 07/20/2022 03:57 PM INDEX NO. 60767/2018 NYSCEF DOC. NO. 1436 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. 16-006 ) V. ) ) HOULIHAN/LAWRENCE, INC., ) ) DEFENDANT. ) HOULIHAN LAWRENCE’S MOTION FOR PROTECTIVE ORDER REGARDING PLAINTIFFS’ PROPOSED DEPONENT LIST (No. 16-006) Plaintiffs refuse to engage with the arguments and well settled New York caselaw Houlihan Lawrence submitted in support of Motion 16-006, dated May 19, 2022. Instead, Plaintiffs continue their pre-class certification pattern of manufacturing disputes and delay. Their continued attempts to delay these proceedings and propagate endless discovery disputes should not be allowed. Plaintiffs request that the “Discovery Referee . . . deny [Motion 16-006] without prejudice to refiling at the appropriate time so that the Discovery Referee may decide the potential . . . discovery disputes raised in [Motion 16-006] once they have ripened into actual disputes, on a more complete documentary record, and alongside any deposition discovery issue that Class Plaintiffs wish to raise.” Vest to Harrington, May 25, 2022, at 10. In the alternative, Plaintiffs attempt to further delay the issuance of the Sixteenth Report and Recommendation and FILED: WESTCHESTER COUNTY CLERK 07/20/2022 03:57 PM INDEX NO. 60767/2018 NYSCEF DOC. NO. 1436 RECEIVED NYSCEF: 07/20/2022 “request seven days from the date of the Discovery Referee’s decision [on Motion 16-006] to submit their opposition to the Motion and any cross-motion on deposition discovery issues.” Id. Plaintiffs’ argument fails in the face of the voluminous record in this case. Plaintiffs have received from Houlihan Lawrence no less than 189,868 pages of documents, 176 answers to notices to admit, 60 answers to requests for production, and 13 answers to interrogatories. The parties and the Discovery Referee have had nearly four years to examine the record evidence in this case. Plaintiffs’ new excuses for delay are unavailing. Houlihan Lawrence requests this issue be resolved now so that the parties may expeditiously move this case toward resolution. Dated: June 1, 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 2 FILED: WESTCHESTER COUNTY CLERK 07/20/2022 03:57 PM INDEX NO. 60767/2018 NYSCEF DOC. NO. 1436 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. 16-007 ) V. ) ) HOULIHAN/LAWRENCE, INC., ) ) DEFENDANT. ) HOULIHAN LAWRENCE’S REPLY IN SUPPORT OF ITS MOTION FOR PROTECTIVE ORDER AND STRUCTURED BRIEFING REGARDING PLAINTIFFS’ REQUEST FOR 200 DOCUMENT CUSTODIANS (No. 16-007) I. Plaintiffs’ Fishing Expedition is Abusive and Unduly Burdensome Plaintiffs refuse to engage with both New York law and Houlihan Lawrence’s reasonable offer to meet and confer with Plaintiffs to choose two (2) additional document custodians in addition to the 187 custodians from whom Houlihan Lawrence has already collected and produced responsive documents. See Vest to Harrington, May 25, 2022, at 10-11. Plaintiffs also refuse to acknowledge Houlihan Lawrence’s offer to designate Geoffrey Berry and Cynthia Landis as merits document custodians. Id. In an attempt to “nip” Houlihan Lawrence’s objections “in the bud,” Plaintiffs hastily designate six Houlihan Lawrence sales agents as document custodians, summarily identifying them as “top producers.” Plaintiffs’ “fishing expedition” must end. Cf. Auerbach, 30 A.D.3d at 452. FILED: WESTCHESTER COUNTY CLERK 07/20/2022 03:57 PM INDEX NO. 60767/2018 NYSCEF DOC. NO. 1436 RECEIVED NYSCEF: 07/20/2022 II. Plaintiffs’ Demands are Palpably Improper and Should be Vacated in Their Entirety Plaintiffs refuse to acknowledge New York law clearly providing that the “appropriate remedy” in cases of palpably improper discovery demands is “vacat[ing] the entire demand rather than to prun[ing] it.” Cobble Hill Health Ctr., Inc., 22 A.D.3d at 621. Discovery demands are “palpably improper” when “they [are] overbroad, burdensome, fail[] to specify with reasonable particularity many of the documents demanded, or s[eek] irrelevant information.” Astudillo v. St. Francis-Beacon Extended Care Facility, Inc., 12 A.D.3d 469, 470 (2d Dept. 2004). Plaintiffs’ demands are palpably improper. A request for 200 document custodians, whose email boxes Plaintiffs demand be subjected to 166 search terms, see Houlihan Lawrence Motion 16-008, is overbroad by any measure. Document custodians are routinely limited to fewer than ten in complex commercial disputes across the country. See, e.g., CPI Card Grp., Inc. v. Dwyer, No. 17-3983, 2018 U.S. Dist. LEXIS 171504, at *3 (D. Minn. Oct. 4, 2018) (“To the extent the requests call for the production of emails, Plaintiffs must identify no more than five email custodians.”); Waste Action Project v. Perdue Foods LLC, No. C20-0836-JCC, 2021 U.S. Dist. LEXIS 17679, at *1-2 (W.D. Wa., Jan. 29, 2021) (“Within 30 days after the Rule 26(f) conference . . . each party shall disclose: 1. Custodians. The five custodians most likely to have discoverable ESI in their possession, custody or control.”); Nervo Corp. v. Boston Sci. Corp., No. 16-cv-06830-VC, 2021 U.S. Dist. LEXIS 96727, at *9 (“At this point, the Court thus will not adopt Nervo’s proposition of 13 custodians and 10 search terms per custodian. The Court finds BSC’s compromise of 7 custodians and 7 search terms per custodian is appropriate. Although Nervo refers to a number of individuals whose emails may be relevant to its claims, it does not 2 FILED: WESTCHESTER COUNTY CLERK 07/20/2022 03:57 PM INDEX NO. 60767/2018 NYSCEF DOC. NO. 1436 RECEIVED NYSCEF: 07/20/2022 explain how information from additional custodians would not be duplicative, and more importantly, how it would be proportionate to the needs of this case.”). Given Plaintiffs’ claims that this case is amenable to classwide resolution based on their allegation that Houlihan Lawrence engaged in a “centrally orchestrated strategy . . . to boost in- house sales” by providing its agents with “uniform training, script, and other ‘model disclosures,” see NYSCEF Doc. No. 688 at 24, Plaintiffs have failed to explain why the designation of document custodians beyond the two (2) office managers and two (2) additional agreed custodians would not result in irrelevant, “duplicative,” and disproportionate discovery. Cf. Nervo, U.S. Dist. LEXIS 96727, at *9. Plaintiffs’ request for document custodians should be stricken in its entirety, and Plaintiffs should be instructed to engage with Houlihan Lawrence in a meet and confer process to designate two (2) document custodians in addition to Geoffrey Berry and Cynthia Landis if the Referee deems that number of custodians appropriate. Dated: June 1, 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. 1436 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. 16-008 ) V. ) ) HOULIHAN/LAWRENCE, INC., ) ) DEFENDANT. ) HOULIHAN LAWRENCE’S REPLY IN SUPPORT OF ITS MOTION FOR PROTECTIVE ORDER AND STRUCTURED BRIEFING REGARDING PLAINTIFFS’ REQUEST FOR 166 SEARCH TERMS (No. 16-008) I. Plaintiffs’ Request for 166 Search Terms is Palpably Improper Because Each Boolean Term Must Be Considered Separately Houlihan Lawrence does not refuse to “acknowledge the obvious distinction between search terms and search limiters to manufacture the appearance of an unduly burdensome search protocol.” Vest to Harrington, May 25, 2022, at 12. Unlike Plaintiffs, Houlihan Lawrence relies on well-settled case law for the proposition that each Boolean term must be counted separately. As the United States District Court explained in Madrid v. CertainTeed, LLC: A conjunctive combination of multiple words or phrases (e.g. “computer” and “system”) narrows the search and shall count as a single search term. A disjunctive combination of multiple words or phrases (e.g. “computer” or “system”) broadens the search, and thus each word or phrase shall count as a separate search term unless they are variants of the same word. No. C20-1285-JCC, 2021 U.S. Dist. LEXIS 9849, at *4 (W.D. Wa. Jan. 19, 2021). FILED: WESTCHESTER COUNTY CLERK 07/20/2022 03:57 PM INDEX NO. 60767/2018 NYSCEF DOC. NO. 1436 RECEIVED NYSCEF: 07/20/2022 Each of Plaintiffs’ “limiters,” in combination with the base search term, count as a single search term that must be applied against any collected custodial files one-by