Preview
FILED: WESTCHESTER COUNTY CLERK 07/21/2022 04:43 PM INDEX NO. 60767/2018
NYSCEF DOC. NO. 1449 RECEIVED NYSCEF: 07/21/2022
EXHIBIT 2
FILED: WESTCHESTER COUNTY CLERK 07/21/2022 04:43 PM INDEX NO. 60767/2018
NYSCEF DOC. NO. 1449 RECEIVED NYSCEF: 07/21/2022
From: Vest, Jeremy
Sent: Wed, 6 Jul 2022 14:17:27
To: William P. Harrington
Cc: William Ohlemeyer Alfred E. Donnellan Nelida Lara Robert MacGill Matthew T. Ciulla Alfred E. Donnellan Nelida Lara
Subject: HL: Search Terms and Clawback
Importance: Normal
Sensitivity: None
Attachments:
Letter of July 5.pdf;
Mr. Harrington,
As shown in the attached, HL took the additional time afforded it to meet and confer regarding search
terms to decide that there was no need to do so because you purportedly already resolved the disputed
terms in its favor at the June 28 conference. HL’s failure to acknowledge Class Plaintiffs’ June 30
proposal, much less to produce hit counts to show the unreasonableness of their searches, confirms that
efforts to compromise remain a fool’s errand that reward HL with delay.
HL’s proposed searches are unacceptable in three important respects:
HL eliminates the hyphenated form of “in-house” entirely;
HL narrows “in house” (without a hyphen) using the proximity limiters “w/3 sale” and “w/3 deal”
without including a wildcard operator (sale*) (deal*) to capture both the singular and plural forms of
those words; and
HL refuses to search “in house” and “in-house” within proximity of “bonus” for those custodians
whose in-house bonus emails HL did NOT collect during pre-class certification discovery.
Even though HL provides no reason for Class Plaintiffs to narrow their proposed search terms for a
second time, and solely to prevent HL from manufacturing an adjournment of the December 31, 2022
discovery cutoff, Class Plaintiffs agree to reduce their proposed proximity limiter from “w/5” to “w/3” and
to omit the terms “increase” and “boost”. With those changes, Class Plaintiffs’ proposed searches are now
as follows:
For any collection from a custodian whose “In House Bonus” emails were collected during pre-class
certification discovery (i.e., any office manager or sales agent in the Bronxville, Scarsdale, or White
Plains offices), narrow “In house” and “In-house” by using the proximity limiter “w/3 sale* OR deal*
For any collection from a custodian whose “In House Bonus” emails were NOT collected during pre-
FILED: WESTCHESTER COUNTY CLERK 07/21/2022 04:43 PM INDEX NO. 60767/2018
NYSCEF DOC. NO. 1449 RECEIVED NYSCEF: 07/21/2022
class certification discovery, narrow “In house” or “In-house” by using the proximity limiter “w/3
sale* OR deal* OR bonus
Narrow “Agen* w/10 disclos*” to “Agen* w/3 disclos*”
In the parlance of the real estate industry, the above represents Class Plaintiffs’ “final, best, and last”
offer. If these searches are unacceptable to HL, it should provide any counter-proposed searches by the
end of day, and the Discovery Referee should then promptly resolve the issue.
HL’s July 5 letter creates a second, even more important, issue requiring your immediate attention, by
baldly asserting a right to clawback its production from the files of any of the four pre-class certification
custodians who Class Plaintiffs do not designate as a merits custodian. In so doing, HL seeks to compel
Class Plaintiffs to forego either HL’s pre-class certification productions or the benefit of the Seventeenth
Report and Recommendation, which permits Class Plaintiffs to select seven merits custodians, in addition
to Landis, Berry and one of the Meyers brothers. If Class Plaintiffs must designate the four pre-class
certification custodians as merits custodians to utilize their documents at trial, they would then be able to
select no more than three sales agents as merits custodians, despite the fact that HL says it will call 100
sales agents at trial to testify regarding 4,000 dual-agent transactions.
Class Plaintiffs cannot finalize their selection of merits custodians and confirm the Seventeenth Report
and Recommendation (which triggers HL’s deadline to complete its document production) until this issue
is resolved. Accordingly, Class Plaintiffs request an immediate ruling that HL may not clawback
documents from its pre-class certification production except for the usual and customary purpose of
retrieving any inadvertently produced information protected by the attorney-client privilege or work
product doctrine.
Regards,
Jeremy
Jeremy Vest
Member
Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C.
666 Third Avenue, New York, NY 10017
+1.212.692.6718
JVest@mintz.com | Mintz.com
FILED: WESTCHESTER COUNTY CLERK 07/21/2022 04:43 PM INDEX NO. 60767/2018
NYSCEF DOC. NO. 1449 RECEIVED NYSCEF: 07/21/2022
156 E. Market Street
Suite 1200
Indianapolis, IN 46204
www.MacGillLaw.com
Robert D. MacGill
317.906.5085
Robert.MacGill@MacGillLaw.com
Via Email
July 5, 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: Search Terms and Custodians
Dear Counsel,
Pursuant to the Seventeenth Report and Recommendation, we write regarding search
terms and custodians.
Search Terms.
We understand that you have withdrawn the following search terms:
• Disclos* w/10 “not”
• Bonus w/15 get AND NOT (hotel OR “credit card” OR airline)
• Agen* w/10 help
Therefore, we will not run them.
With respect to “in house” and in-house, we understood from the Referee’s comments
that he would approve the following search terms:
• “in house” w/3 sale
• “in house” w/3 deal
Accordingly, we will remove “in house” and in-house from the search term list and add
these two search terms.
FILED: WESTCHESTER COUNTY CLERK 07/21/2022 04:43 PM INDEX NO. 60767/2018
NYSCEF DOC. NO. 1449 RECEIVED NYSCEF: 07/21/2022
Jeremy Vest
William Ohlemeyer
July 5, 2022
Page 2
Finally, we understood the Referee to suggest that agen* w/10 disclos* be narrowed to
agen* w/3 disclos*. We will do so.
Please note, as we explained in detail during the hearing, narrowing of your 166 search
terms will be an iterative process. This was only the first pass at such narrowing. Once the
custodian list is set, we expect to need several more rounds of narrowing before document
review can begin in earnest. This may include further narrowing of the above-discussed terms
and/or narrowing of many of the other terms on the 166-term list.
Custodians.
The Seventeenth Report and Recommendation permits you to select seven merits
custodians, in addition to (A) Landis, (B) Berry, and (C) one of the Meyers brothers. Your
selection of seven must “be designated…from a roster consisting of the prior designated pre-
class certification custodians and the six (6) HLI sales agents.”
Please inform us of your selection. Please note: to the extent you do not select any of the
“prior designated pre-class certification custodians,” we will consider these omitted persons’
documents to be clawed back by operation of law, and you may not use these documents for any
purpose moving forward.
Best regards.
Very truly yours,
Robert D. MacGill
cc: Matthew Ciulla, Alfred Donnellan, Nelida Lara
Preview
FILED: WESTCHESTER COUNTY CLERK 07/21/2022 04:43 PM INDEX NO. 60767/2018 NYSCEF DOC. NO. 1449 RECEIVED NYSCEF: 07/21/2022 EXHIBIT 2 FILED: WESTCHESTER COUNTY CLERK 07/21/2022 04:43 PM INDEX NO. 60767/2018 NYSCEF DOC. NO. 1449 RECEIVED NYSCEF: 07/21/2022 From: Vest, Jeremy Sent: Wed, 6 Jul 2022 14:17:27 To: William P. Harrington Cc: William Ohlemeyer Alfred E. Donnellan Nelida Lara Robert MacGill Matthew T. Ciulla Alfred E. Donnellan Nelida Lara Subject: HL: Search Terms and Clawback Importance: Normal Sensitivity: None Attachments: Letter of July 5.pdf; Mr. Harrington, As shown in the attached, HL took the additional time afforded it to meet and confer regarding search terms to decide that there was no need to do so because you purportedly already resolved the disputed terms in its favor at the June 28 conference. HL’s failure to acknowledge Class Plaintiffs’ June 30 proposal, much less to produce hit counts to show the unreasonableness of their searches, confirms that efforts to compromise remain a fool’s errand that reward HL with delay. HL’s proposed searches are unacceptable in three important respects: HL eliminates the hyphenated form of “in-house” entirely; HL narrows “in house” (without a hyphen) using the proximity limiters “w/3 sale” and “w/3 deal” without including a wildcard operator (sale*) (deal*) to capture both the singular and plural forms of those words; and HL refuses to search “in house” and “in-house” within proximity of “bonus” for those custodians whose in-house bonus emails HL did NOT collect during pre-class certification discovery. Even though HL provides no reason for Class Plaintiffs to narrow their proposed search terms for a second time, and solely to prevent HL from manufacturing an adjournment of the December 31, 2022 discovery cutoff, Class Plaintiffs agree to reduce their proposed proximity limiter from “w/5” to “w/3” and to omit the terms “increase” and “boost”. With those changes, Class Plaintiffs’ proposed searches are now as follows: For any collection from a custodian whose “In House Bonus” emails were collected during pre-class certification discovery (i.e., any office manager or sales agent in the Bronxville, Scarsdale, or White Plains offices), narrow “In house” and “In-house” by using the proximity limiter “w/3 sale* OR deal* For any collection from a custodian whose “In House Bonus” emails were NOT collected during pre- FILED: WESTCHESTER COUNTY CLERK 07/21/2022 04:43 PM INDEX NO. 60767/2018 NYSCEF DOC. NO. 1449 RECEIVED NYSCEF: 07/21/2022 class certification discovery, narrow “In house” or “In-house” by using the proximity limiter “w/3 sale* OR deal* OR bonus Narrow “Agen* w/10 disclos*” to “Agen* w/3 disclos*” In the parlance of the real estate industry, the above represents Class Plaintiffs’ “final, best, and last” offer. If these searches are unacceptable to HL, it should provide any counter-proposed searches by the end of day, and the Discovery Referee should then promptly resolve the issue. HL’s July 5 letter creates a second, even more important, issue requiring your immediate attention, by baldly asserting a right to clawback its production from the files of any of the four pre-class certification custodians who Class Plaintiffs do not designate as a merits custodian. In so doing, HL seeks to compel Class Plaintiffs to forego either HL’s pre-class certification productions or the benefit of the Seventeenth Report and Recommendation, which permits Class Plaintiffs to select seven merits custodians, in addition to Landis, Berry and one of the Meyers brothers. If Class Plaintiffs must designate the four pre-class certification custodians as merits custodians to utilize their documents at trial, they would then be able to select no more than three sales agents as merits custodians, despite the fact that HL says it will call 100 sales agents at trial to testify regarding 4,000 dual-agent transactions. Class Plaintiffs cannot finalize their selection of merits custodians and confirm the Seventeenth Report and Recommendation (which triggers HL’s deadline to complete its document production) until this issue is resolved. Accordingly, Class Plaintiffs request an immediate ruling that HL may not clawback documents from its pre-class certification production except for the usual and customary purpose of retrieving any inadvertently produced information protected by the attorney-client privilege or work product doctrine. Regards, Jeremy Jeremy Vest Member Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C. 666 Third Avenue, New York, NY 10017 +1.212.692.6718 JVest@mintz.com | Mintz.com FILED: WESTCHESTER COUNTY CLERK 07/21/2022 04:43 PM INDEX NO. 60767/2018 NYSCEF DOC. NO. 1449 RECEIVED NYSCEF: 07/21/2022 156 E. Market Street Suite 1200 Indianapolis, IN 46204 www.MacGillLaw.com Robert D. MacGill 317.906.5085 Robert.MacGill@MacGillLaw.com Via Email July 5, 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: Search Terms and Custodians Dear Counsel, Pursuant to the Seventeenth Report and Recommendation, we write regarding search terms and custodians. Search Terms. We understand that you have withdrawn the following search terms: • Disclos* w/10 “not” • Bonus w/15 get AND NOT (hotel OR “credit card” OR airline) • Agen* w/10 help Therefore, we will not run them. With respect to “in house” and in-house, we understood from the Referee’s comments that he would approve the following search terms: • “in house” w/3 sale • “in house” w/3 deal Accordingly, we will remove “in house” and in-house from the search term list and add these two search terms. FILED: WESTCHESTER COUNTY CLERK 07/21/2022 04:43 PM INDEX NO. 60767/2018 NYSCEF DOC. NO. 1449 RECEIVED NYSCEF: 07/21/2022 Jeremy Vest William Ohlemeyer July 5, 2022 Page 2 Finally, we understood the Referee to suggest that agen* w/10 disclos* be narrowed to agen* w/3 disclos*. We will do so. Please note, as we explained in detail during the hearing, narrowing of your 166 search terms will be an iterative process. This was only the first pass at such narrowing. Once the custodian list is set, we expect to need several more rounds of narrowing before document review can begin in earnest. This may include further narrowing of the above-discussed terms and/or narrowing of many of the other terms on the 166-term list. Custodians. The Seventeenth Report and Recommendation permits you to select seven merits custodians, in addition to (A) Landis, (B) Berry, and (C) one of the Meyers brothers. Your selection of seven must “be designated…from a roster consisting of the prior designated pre- class certification custodians and the six (6) HLI sales agents.” Please inform us of your selection. Please note: to the extent you do not select any of the “prior designated pre-class certification custodians,” we will consider these omitted persons’ documents to be clawed back by operation of law, and you may not use these documents for any purpose moving forward. Best regards. Very truly yours, Robert D. MacGill cc: Matthew Ciulla, Alfred Donnellan, Nelida Lara