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FILED: WESTCHESTER COUNTY CLERK 11/09/2022 01:19 PM INDEX NO. 60767/2018
NYSCEF DOC. NO. 1468 RECEIVED NYSCEF: 11/09/2022
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF WESTCHESTER
PAMELA GOLDSTEIN, )
ELLYN & TONY BERK as Administrators of )
the Estate of Winifred Berk, and PAUL )
BENJAMIN, on behalf of themselves and all )
others similarly situated, ) Index No. 60767/2018
) Hon. Linda S. Jamieson
Plaintiffs, )
)
vs. )
)
HOULIHAN LAWRENCE INC., )
)
Defendant. )
)
TWENTIETH REPORT AND RECOMMENDATION
OF DISCOVERY REFEREE
This Report and Recommendation addresses the ongoing dispute regarding Plaintiffs'
ESI search terms and related merit-based document production by defendant Houlihan
Lawrence, Inc. ("HLI'').
PROCEDURAL BACKGROUND
This case is now approaching its fifth year. Class certification was granted on June 8,
2022. The parties are now engaged in merit-based discovery.
Various Reports and Recommendations, all confirmed, have addressed and directed
merits-based discovery to be completed by December 31, 2022. Yet, because of persistent
discovery disputes, no meaningful ESI production has apparently occurred. 1
These delays are due, in part, to the delay inherent in the CPLR statutory process for confirmation of
Referee Reports and Recommendations. See CPLR 3104(d).
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Plaintiffs seek to compel HLI to produce all documents responsive to the ESI search
terms approved by the 18th Report and Recommendation. 2 In response, HLI has filed cross-
motions which seek to (1) modification of those search terms (Motion 19-003), (2)
implementation of a technology assisted review of the ESI production process ("TAR") (Motion
19-002) and (3) a protective order to allow HLI to conduct a responsiveness review of all
documents which "hit" Plaintiffs' search terms before any document production to Plaintiffs. 3
The 18th Report and Recommendation, which was confirmed by the Court without
opposition, approved twelve (12) specific modified search terms with appropriate qualifiers (the
"Approved Search Terms"), and ordered HLI to produce hit count reports with respect to each
term and document custodian. The 18th Report and Recommendation also provided HLI the right
to seek modification of any search term "to the extent a hit count report reflects an
inappropriately high, anomalous or burdensome result." (Docket No. 1412 at p. 2).
THE PARTIES' CONTENTIONS
A. The Search Terms
(i) Plaintiffs' Arguments
Plaintiffs argue that HLI has continued to obstruct discovery, :frustrate the standing
December 31, 2022 discovery deadline, and unduly delay the adjudication of this litigation.
Toward that end, Plaintiffs argue HLI failed to timely respond to the Approved Search Terms
(supplied on August 1, 2022) until September 13, 2022, when it unilaterally announced its
decision to (1) modify 34 of Approved Search Terms and (2) layer a TAR process over those
I advised all counsel via email that I would treat Plaintiffs' requests as a motion under CPLR 3124 and
3126.
3
HLI's motion to compel Plaintiffs' compliance with the Court's Class Notice and Arbitration Orders, filed
simultaneously with these motions, will be the subject of a separate report and recommendation.
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modified terms (the "Proposed TAR Protocol"). Plaintiffs argue that HLI did not meet and
confer with Plaintiffs regarding the Proposed Modified Search Terms or TAR Protocol; but
rather, unilaterally imposed same. HLI allegedly failed to provide even the most basic
information to Plaintiffs necessary to evaluate the Proposed Modified Search Terms. Plaintiffs
concede certain Approved Search Terms generated over 20,000 hits. However, Plaintiffs argue
that (1) HLI did not provide the total number of unique documents actually captured by the
proposed new search terms, leaving Plaintiffs to guess as to these results 4 and (2) the 20,000-hit
count complained ofby HLI does not justify yet another amendment of the Approved Search
Terms. Plaintiffs assert this responsive document volume is not surprising given the nature of its
claims and the size of HLI's sales force, the length of the class period, and is justified by the
significant public importance of the Plaintiffs' claims.
Finally, Plaintiffs argue that documents related to New York's Disclosure Forms, most
logically and notably communications to and from HLI agents and clients regarding dual agency,
is critically relevant to Plaintiffs' claim that HLI systemically failed to properly disclose and
implement its dual agency policy.
(ii) HLl's Arguments
HLI asserts it has done nothing more than what the 18th Report and Recommendation
authorized; that is, seek modification of search terms that generated an inappropriately high,
anomalous and burdensome search result. HLI argues that the 20,000-hit count generated by
some of the search terms is inappropriate and burdensome, warranting modification. HLI further
argues that it acted timely between August 1 ( when it was advised of Plaintiffs' 10 document
4
Plaintiffs also argue, not without reason, that if HLI was sincere in its proposal, HLI could and should have
provided this "critical" information.
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custodians) and September 13 (when it transmitted its objections and proposed modified search
terms to Plaintiffs' counsel).
HLI formally moves to modify 34 of what it argues are 166 ESI search terms which it
believes are unreasonable. 5 In its motion, HLI further states that it does not move at this time to
modify the remaining 132 search terms.
HLI argues that it seeks to avoid the onerous burden of reviewing and producing what it
considers to be voluminous irrelevant documents which "hit" the Approved Search Terms. By
way of example, HLI cites to standard New York dual agency disclosure forms. HLI asserts
these documents were previously produced in 413,013 pages ofHLI paper transaction files and
therefore, it is unduly burdensome to require HLI to review and produce, yet again, the same
standard statutory forms (used in every dual agency sales transaction during the class period).
Notably, HLI does not object to, and asserts that its proposed Modified Search Terms will
generate for production, all communications about agency disclosure or dual agency outside the
forms themselves.
HLI also again raises a relevance objection to the Approved Search Terms in arguing that
Plaintiffs' secured class certification from the Court based upon the "simple premise" that the
HLI script used by sales agents to describe HLI's dual agency policy to clients was inadequate
and violated New York law. Therefore, HLI argues whatever communications sales agents had
with clients regarding dual agency, outside this script, is irrelevant. Because Plaintiffs obtained
class certification based upon the use of a script, HLI argues it should not matter for class action
liability what any one email between any one independent contractor agent wrote to anyone
5
Although the 18 th Report and Recommendation approved 12 search terms with associated qualifiers, HLI
has chosen to quantify the Approved Search Terms as 166 separate search terms. Creative math aside, this is a
distinction without substance for purposes of the motions at bar.
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about any one transaction.
B. Proposed TAR Protocol
(i) Plaintiffs' Arguments
Plaintiffs object vigorously to HLI's desire to layer a TAR process over the Proposed
Amended Search Terms. They argue that a party must declare its intention to use TAR at the
earliest possible time and that four years into this litigation is far too late to do so. Plaintiffs note
that parties have expended significant resources and generated substantial litigation delays in
haggling over and litigating search term issues. Had HLI timely proposed the use of a TAR
methodology earlier in this litigation, Plaintiffs argue that the delay and expense would have
been avoided. Plaintiffs further argue that implementing a unilateral TAR Protocol, over which
Plaintiffs have had no say, will only fester more discovery disputes and attendant delay and
expense.
Finally, even ifHLI's Proposed TAR Protocol was timely, Plaintiffs argue that the
transparency and cooperation between litigation counsel essential to TAR's effectiveness does
not and cannot exist given the tortured history in this case.
(ii) HLl's Arguments
Complaining that the Approved Search Terms are poorly written, HLI argues TAR will
streamline the review of responsive ESI, not delay it. HLI seeks to implement TAR with respect
to 34 of the search terms, ostensibly retaining the right to do so with respect to what HLI argues
is a remaining 132 search terms.
HLI points to the Commercial Division Rules which expressly contemplate and authorize
the use of TAR in ESI discovery, at any point in the discovery process, and use of both
traditional search terms and TAR methodologies simultaneously so long as the combined
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processes are designed to identify evidence that is material to the dispute. See 202. 70. (Rule 11-
c(f)).
Finally, citing the Subcommittee on Procedural Rules to Promote Efficient Case
Resolution, HLI argues that Plaintiffs must demonstrate that HLI's proposed use of its TAR
protocol is manifestly unreasonable. Plaintiffs having failed to meet this burden, HLI argues it
should be allowed to implement its proposed TAR Protocol.
DISCUSSION
A. The Search Terms
The 18th Report and Recommendation (as confirmed without opposition) represents a
court order, which resolved the vexing issue of Plaintiffs' proposed ESI search terms. Twelve
(12) distinct terms, with appropriate qualifiers, were approved. They represented a substantial
compromise from those originally sought by Plaintiffs. In so doing, the Court specifically
addressed and did not credit HLI's "script" based relevance argument, or HLI's argument that
Approved Search Terms were "poorly drafted." The Court declines to revisit those arguments
agam.
However, the 18th Report and Recommendation did address HLI's concerns regarding
"moving goal posts", that is, Plaintiffs' alleged penchant for manufacturing discovery disputes to
frustrate HLI' s ability to comply with discovery demands by the December 31, 2022 discovery
deadline. The 18th Report and Recommendation granted to HLI the right to seek relief from such
a result. However, this right was not a license to relitigate each and every Approved Search Term
or permutation thereof.
Under the 18th Report and Recommendation, resolution of the ongoing ESI search term
dispute turns on whether the 34 permutations of the Approved Search Terms about which HLI
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complains have resulted in an inappropriate, anomalous or burdensome hit count report
warranting a further modification of those terms. They do not.
The complained of 20,000 item hit reports are not inappropriately high or burdensome
given the nature and scope of Plaintiffs' class action claims. Plaintiffs allege that between
January 1, 2011 and July 14, 2018, HLI management conceived and implemented an institutional
policy which failed to properly disclose its dual agency policy to thousands of clients involved in
thousands of sales transactions. Multiple HLI offices (30) and over one thousand HLI sales
representatives were potentially involved. Therefore, it is not at all surprising that certain
fundamental "dual agency" search terms applied to 10 HLI document custodians may have
generated a document hit count of 20,000.
HLI's concerns about the burden imposed by reviewing previously produced New York
statutory dual agency forms can be addressed by de-duplication of the responsive documents; a
practice HLI previously conceded was part of their ESI responsiveness review process. HLI has
the benefit of a very sophisticated third-party ESI consultant who can provide expert assistance
in de-duplication and related accepted technical methodologies (i.e. email thread suppression) to
efficiently respond to the Approved Search Terms.
Moreover, HLI's attempt to challenge only 34 of what it unilaterally characterizes as 166
search terms lends credence to Plaintiffs' concern that HLI will engage in piecemeal litigation of
manufactured groups of the Approved Search Terms. The 18th Report and Recommendation did
not envision, let alone authorize, such an inefficient process which will inevitably result in more,
not less, disputes, delay and expense.
Therefore, HLI's motion to modify the search terms is denied (Motion 003).
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However, the 18 th Report and Recommendation did not preclude HLI's right to conduct a
responsiveness review of "hit documents" before ESI production. HLI has appeared to have done
so with respect to the 34 search terms which are the subject of its protective order motion. All
those responsive documents should be produced within 10 business days of the filing of this
Report and Recommendation.
HLI is also entitled to conduct a pre-production responsiveness review of documents
responsive to what it characterized as the balance of 132 Approved Search Terms for privilege
and other matters previously identified as inappropriate for disclosure (e.g. information regarding
addresses and personal information of third-party clients). HLI should begin in earnest such an
effort to the extent it has not already been completed. Responsive documents relating to all the
remaining Approved Search Terms should be produced within 15 business days of the filing of
this Report and Recommendation.
Based upon the foregoing, I report and recommend that Plaintiffs' motion to compel
production of all documents responsive subject to the Approved Search Terms should be granted
to the extent of the 34 search terms to which HLI has objected. HLI's cross-motions seeking
further modification of the Approved Search Terms and a protective order precluding production
of hit documents responsive to the 34 search terms is denied. HLI's motion for a protective order
with respect to all documents responsive to the remaining 132 search terms is granted to the
extent that HLI is permitted to conduct a pre-production responsiveness review, as set forth
above, before production of responsive documents. Consistent with the 18 th Report and
Recommendation, HLI retains the right to object to any of the 132 search terms that generate an
anomalous, inappropriate or burdensome hit count.
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Proposed TAR Protocol
TAR protocol requires transparency and cooperation between opposing counsel to
achieve the benefits of a cost effective, dispute-free timely ESI production process. Consistent
therewith, counsel must meet and confer in advance to develop a mutually agreeable TAR
Protocol and then work to insure its proportional and reasonable application.
Commercial Division Rule 11-c directs parties to meet and confer on ESI issues before
the entry of a Preliminary Conference Order (Id. 11-c(b)) and, with respect to TAR, directs the
parties to confer at the outset of discovery and as needed throughout the discovery period.
Similarly, the ESI Guidelines also direct discussion of ESI related issues prior to the entry of a
Preliminary Conference Order, including the use of TAR (Guideline II(B)(5)). The Guidelines
encourage the use of TAR while recognizing that an ESI "search methodology need not be
perfect but should be reasonable under the circumstances." (Id. Guidelines V(C), (D) and (E)).
HLI relies heavily upon the Commercial Division Rules and related Guidelines which
expressly contemplate the simultaneous use of traditional search terms and a TAR protocol
throughout a litigation discovery period.
Finally, HLI relies upon the observations of the Subcommittee on Procedural Rules to
Promote Efficient Case Resolution which describes an ideal three-step process whereby (1) a
TAR protocol is proposed and explained by the producing party, (2) the requesting party is
provided an opportunity to challenge the protocol and, (3) failing a resolution via a modified
TAR, the requesting party must show that the responding party's TAR is "manifestly
unreasonable." HLI argues that manifestly unreasonable standard applies here and that Plaintiffs
have failed to meet that burden. The Court disagrees.
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As evidenced by 19 previously confirmed Reports and Recommendations, in this case the
parties have fought about virtually every conceivable discovery issue. These past disputes, which
have included multiple ESI issues, have resulted in substantial delay and expense. Throughout
this process, HLI had the benefit of a sophisticated ESI consultant and the ability to suggest the
application of a TAR protocol. For whatever reason, tactical or otherwise, they chose four years
not to do so. Given this history and the posture of this litigation, application of the "manifestly
unreasonable" burden to Plaintiffs is neither fair nor appropriate.
Moreover, assuming, arguendo, that the Subcommittee's well-intentioned, sensible
burden of proof applies to the unique and unfortunate discovery dysfunction in this matter, there
is nothing in the record addressing the substantive benefits ofHLI's Proposed TAR Protocol.
HLI asserts that since the Commercial Rules (and courts in general) recognize that a responding
party "knows best" the kind, volume, storage characteristics and cost of reviewing its own
documents, a receiving party, here Plaintiffs, must show the TAR application is manifestly
unreasonable.
The problem with that argument is twofold. First, Plaintiffs assert that the substance of
HLI' s TAR, and its resultant impact on the production of responsive documents, has never been
adequately explained to them. HLI unilaterally imposed it. Second, and arguably more important,
there is nothing in this record which explains the alleged benefits ofHLI's TAR Protocol to
allow determination by the Court if Plaintiffs' refusal to accept HLI's TAR is manifestly
unreasonable.
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Therefore, I report and recommend that HLI's motion (002) to use the Proposed TAR
Protocol be denied. 6
FUTURE PROCEEDINGS
This case can no longer remain mired in discovery disputes. The December 31, 2022
discovery deadline is fast approaching. It is apparent all necessary merits-based discovery will
not be completed by then, requiring a reasonable and appropriate extension based upon firm
dates and established ESI protocols. This will be the subject of a virtual discovery conference
between counsel and the Discovery Referee to be conducted the week of November 14, 2022.
The parties should meet and confer and advise the Discovery Referee of their mutual
availability. 7 The discovery conference will also address the remaining outstanding discovery
issues set forth in the parties' discovery motions now pending before the Discovery Referee.
CONCLUSION
I respectfully report and recommend that the discovery motions be decided in accord with
the foregoing. 8
Dated: White Plains, New York
November 9, 2022 ' illiam P. Harrington
Discovery Referee
6 Discovery disputes are sui generis and their resolutions driven by facts and circumstances unique to each
case. I have considered all the legal authorities submitted by the parties. All stand for generic principles applicable
to TAR set forth in the Commercial Division Rules. None deal with the unfortunate discovery history at bar.
7 I am cognizant that unless and until confirmed, this Report and Recommendation does not have the
imprimatur of a Court Order. Nonetheless, I request a discovery conference at which time I expect to address all
remaining outstanding discovery issues, including the discovery deadline.
8 The following submissions of the parties were considered in their entirety: (1) September 16, 2022 letter of
Jeremy C. Vest, Esq., with annexed exhibits; (2) September 23, 2022 letter of Robert D. MacGill with annexed
motions (19-001, 19-002 and 19-003); and (3) September 27, 2022 letter of Jeremy C. Vest, Esq. with exhibits.
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TO: All Counsel via NYSCEF
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Preview
FILED: WESTCHESTER COUNTY CLERK 11/09/2022 01:19 PM INDEX NO. 60767/2018 NYSCEF DOC. NO. 1468 RECEIVED NYSCEF: 11/09/2022 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF WESTCHESTER PAMELA GOLDSTEIN, ) ELLYN & TONY BERK as Administrators of ) the Estate of Winifred Berk, and PAUL ) BENJAMIN, on behalf of themselves and all ) others similarly situated, ) Index No. 60767/2018 ) Hon. Linda S. Jamieson Plaintiffs, ) ) vs. ) ) HOULIHAN LAWRENCE INC., ) ) Defendant. ) ) TWENTIETH REPORT AND RECOMMENDATION OF DISCOVERY REFEREE This Report and Recommendation addresses the ongoing dispute regarding Plaintiffs' ESI search terms and related merit-based document production by defendant Houlihan Lawrence, Inc. ("HLI''). PROCEDURAL BACKGROUND This case is now approaching its fifth year. Class certification was granted on June 8, 2022. The parties are now engaged in merit-based discovery. Various Reports and Recommendations, all confirmed, have addressed and directed merits-based discovery to be completed by December 31, 2022. Yet, because of persistent discovery disputes, no meaningful ESI production has apparently occurred. 1 These delays are due, in part, to the delay inherent in the CPLR statutory process for confirmation of Referee Reports and Recommendations. See CPLR 3104(d). 1 1 of 12 FILED: WESTCHESTER COUNTY CLERK 11/09/2022 01:19 PM INDEX NO. 60767/2018 NYSCEF DOC. NO. 1468 RECEIVED NYSCEF: 11/09/2022 Plaintiffs seek to compel HLI to produce all documents responsive to the ESI search terms approved by the 18th Report and Recommendation. 2 In response, HLI has filed cross- motions which seek to (1) modification of those search terms (Motion 19-003), (2) implementation of a technology assisted review of the ESI production process ("TAR") (Motion 19-002) and (3) a protective order to allow HLI to conduct a responsiveness review of all documents which "hit" Plaintiffs' search terms before any document production to Plaintiffs. 3 The 18th Report and Recommendation, which was confirmed by the Court without opposition, approved twelve (12) specific modified search terms with appropriate qualifiers (the "Approved Search Terms"), and ordered HLI to produce hit count reports with respect to each term and document custodian. The 18th Report and Recommendation also provided HLI the right to seek modification of any search term "to the extent a hit count report reflects an inappropriately high, anomalous or burdensome result." (Docket No. 1412 at p. 2). THE PARTIES' CONTENTIONS A. The Search Terms (i) Plaintiffs' Arguments Plaintiffs argue that HLI has continued to obstruct discovery, :frustrate the standing December 31, 2022 discovery deadline, and unduly delay the adjudication of this litigation. Toward that end, Plaintiffs argue HLI failed to timely respond to the Approved Search Terms (supplied on August 1, 2022) until September 13, 2022, when it unilaterally announced its decision to (1) modify 34 of Approved Search Terms and (2) layer a TAR process over those I advised all counsel via email that I would treat Plaintiffs' requests as a motion under CPLR 3124 and 3126. 3 HLI's motion to compel Plaintiffs' compliance with the Court's Class Notice and Arbitration Orders, filed simultaneously with these motions, will be the subject of a separate report and recommendation. 2 2 of 12 FILED: WESTCHESTER COUNTY CLERK 11/09/2022 01:19 PM INDEX NO. 60767/2018 NYSCEF DOC. NO. 1468 RECEIVED NYSCEF: 11/09/2022 modified terms (the "Proposed TAR Protocol"). Plaintiffs argue that HLI did not meet and confer with Plaintiffs regarding the Proposed Modified Search Terms or TAR Protocol; but rather, unilaterally imposed same. HLI allegedly failed to provide even the most basic information to Plaintiffs necessary to evaluate the Proposed Modified Search Terms. Plaintiffs concede certain Approved Search Terms generated over 20,000 hits. However, Plaintiffs argue that (1) HLI did not provide the total number of unique documents actually captured by the proposed new search terms, leaving Plaintiffs to guess as to these results 4 and (2) the 20,000-hit count complained ofby HLI does not justify yet another amendment of the Approved Search Terms. Plaintiffs assert this responsive document volume is not surprising given the nature of its claims and the size of HLI's sales force, the length of the class period, and is justified by the significant public importance of the Plaintiffs' claims. Finally, Plaintiffs argue that documents related to New York's Disclosure Forms, most logically and notably communications to and from HLI agents and clients regarding dual agency, is critically relevant to Plaintiffs' claim that HLI systemically failed to properly disclose and implement its dual agency policy. (ii) HLl's Arguments HLI asserts it has done nothing more than what the 18th Report and Recommendation authorized; that is, seek modification of search terms that generated an inappropriately high, anomalous and burdensome search result. HLI argues that the 20,000-hit count generated by some of the search terms is inappropriate and burdensome, warranting modification. HLI further argues that it acted timely between August 1 ( when it was advised of Plaintiffs' 10 document 4 Plaintiffs also argue, not without reason, that if HLI was sincere in its proposal, HLI could and should have provided this "critical" information. 3 3 of 12 FILED: WESTCHESTER COUNTY CLERK 11/09/2022 01:19 PM INDEX NO. 60767/2018 NYSCEF DOC. NO. 1468 RECEIVED NYSCEF: 11/09/2022 custodians) and September 13 (when it transmitted its objections and proposed modified search terms to Plaintiffs' counsel). HLI formally moves to modify 34 of what it argues are 166 ESI search terms which it believes are unreasonable. 5 In its motion, HLI further states that it does not move at this time to modify the remaining 132 search terms. HLI argues that it seeks to avoid the onerous burden of reviewing and producing what it considers to be voluminous irrelevant documents which "hit" the Approved Search Terms. By way of example, HLI cites to standard New York dual agency disclosure forms. HLI asserts these documents were previously produced in 413,013 pages ofHLI paper transaction files and therefore, it is unduly burdensome to require HLI to review and produce, yet again, the same standard statutory forms (used in every dual agency sales transaction during the class period). Notably, HLI does not object to, and asserts that its proposed Modified Search Terms will generate for production, all communications about agency disclosure or dual agency outside the forms themselves. HLI also again raises a relevance objection to the Approved Search Terms in arguing that Plaintiffs' secured class certification from the Court based upon the "simple premise" that the HLI script used by sales agents to describe HLI's dual agency policy to clients was inadequate and violated New York law. Therefore, HLI argues whatever communications sales agents had with clients regarding dual agency, outside this script, is irrelevant. Because Plaintiffs obtained class certification based upon the use of a script, HLI argues it should not matter for class action liability what any one email between any one independent contractor agent wrote to anyone 5 Although the 18 th Report and Recommendation approved 12 search terms with associated qualifiers, HLI has chosen to quantify the Approved Search Terms as 166 separate search terms. Creative math aside, this is a distinction without substance for purposes of the motions at bar. 4 4 of 12 FILED: WESTCHESTER COUNTY CLERK 11/09/2022 01:19 PM INDEX NO. 60767/2018 NYSCEF DOC. NO. 1468 RECEIVED NYSCEF: 11/09/2022 about any one transaction. B. Proposed TAR Protocol (i) Plaintiffs' Arguments Plaintiffs object vigorously to HLI's desire to layer a TAR process over the Proposed Amended Search Terms. They argue that a party must declare its intention to use TAR at the earliest possible time and that four years into this litigation is far too late to do so. Plaintiffs note that parties have expended significant resources and generated substantial litigation delays in haggling over and litigating search term issues. Had HLI timely proposed the use of a TAR methodology earlier in this litigation, Plaintiffs argue that the delay and expense would have been avoided. Plaintiffs further argue that implementing a unilateral TAR Protocol, over which Plaintiffs have had no say, will only fester more discovery disputes and attendant delay and expense. Finally, even ifHLI's Proposed TAR Protocol was timely, Plaintiffs argue that the transparency and cooperation between litigation counsel essential to TAR's effectiveness does not and cannot exist given the tortured history in this case. (ii) HLl's Arguments Complaining that the Approved Search Terms are poorly written, HLI argues TAR will streamline the review of responsive ESI, not delay it. HLI seeks to implement TAR with respect to 34 of the search terms, ostensibly retaining the right to do so with respect to what HLI argues is a remaining 132 search terms. HLI points to the Commercial Division Rules which expressly contemplate and authorize the use of TAR in ESI discovery, at any point in the discovery process, and use of both traditional search terms and TAR methodologies simultaneously so long as the combined 5 5 of 12 FILED: WESTCHESTER COUNTY CLERK 11/09/2022 01:19 PM INDEX NO. 60767/2018 NYSCEF DOC. NO. 1468 RECEIVED NYSCEF: 11/09/2022 processes are designed to identify evidence that is material to the dispute. See 202. 70. (Rule 11- c(f)). Finally, citing the Subcommittee on Procedural Rules to Promote Efficient Case Resolution, HLI argues that Plaintiffs must demonstrate that HLI's proposed use of its TAR protocol is manifestly unreasonable. Plaintiffs having failed to meet this burden, HLI argues it should be allowed to implement its proposed TAR Protocol. DISCUSSION A. The Search Terms The 18th Report and Recommendation (as confirmed without opposition) represents a court order, which resolved the vexing issue of Plaintiffs' proposed ESI search terms. Twelve (12) distinct terms, with appropriate qualifiers, were approved. They represented a substantial compromise from those originally sought by Plaintiffs. In so doing, the Court specifically addressed and did not credit HLI's "script" based relevance argument, or HLI's argument that Approved Search Terms were "poorly drafted." The Court declines to revisit those arguments agam. However, the 18th Report and Recommendation did address HLI's concerns regarding "moving goal posts", that is, Plaintiffs' alleged penchant for manufacturing discovery disputes to frustrate HLI' s ability to comply with discovery demands by the December 31, 2022 discovery deadline. The 18th Report and Recommendation granted to HLI the right to seek relief from such a result. However, this right was not a license to relitigate each and every Approved Search Term or permutation thereof. Under the 18th Report and Recommendation, resolution of the ongoing ESI search term dispute turns on whether the 34 permutations of the Approved Search Terms about which HLI 6 6 of 12 FILED: WESTCHESTER COUNTY CLERK 11/09/2022 01:19 PM INDEX NO. 60767/2018 NYSCEF DOC. NO. 1468 RECEIVED NYSCEF: 11/09/2022 complains have resulted in an inappropriate, anomalous or burdensome hit count report warranting a further modification of those terms. They do not. The complained of 20,000 item hit reports are not inappropriately high or burdensome given the nature and scope of Plaintiffs' class action claims. Plaintiffs allege that between January 1, 2011 and July 14, 2018, HLI management conceived and implemented an institutional policy which failed to properly disclose its dual agency policy to thousands of clients involved in thousands of sales transactions. Multiple HLI offices (30) and over one thousand HLI sales representatives were potentially involved. Therefore, it is not at all surprising that certain fundamental "dual agency" search terms applied to 10 HLI document custodians may have generated a document hit count of 20,000. HLI's concerns about the burden imposed by reviewing previously produced New York statutory dual agency forms can be addressed by de-duplication of the responsive documents; a practice HLI previously conceded was part of their ESI responsiveness review process. HLI has the benefit of a very sophisticated third-party ESI consultant who can provide expert assistance in de-duplication and related accepted technical methodologies (i.e. email thread suppression) to efficiently respond to the Approved Search Terms. Moreover, HLI's attempt to challenge only 34 of what it unilaterally characterizes as 166 search terms lends credence to Plaintiffs' concern that HLI will engage in piecemeal litigation of manufactured groups of the Approved Search Terms. The 18th Report and Recommendation did not envision, let alone authorize, such an inefficient process which will inevitably result in more, not less, disputes, delay and expense. Therefore, HLI's motion to modify the search terms is denied (Motion 003). 7 7 of 12 FILED: WESTCHESTER COUNTY CLERK 11/09/2022 01:19 PM INDEX NO. 60767/2018 NYSCEF DOC. NO. 1468 RECEIVED NYSCEF: 11/09/2022 However, the 18 th Report and Recommendation did not preclude HLI's right to conduct a responsiveness review of "hit documents" before ESI production. HLI has appeared to have done so with respect to the 34 search terms which are the subject of its protective order motion. All those responsive documents should be produced within 10 business days of the filing of this Report and Recommendation. HLI is also entitled to conduct a pre-production responsiveness review of documents responsive to what it characterized as the balance of 132 Approved Search Terms for privilege and other matters previously identified as inappropriate for disclosure (e.g. information regarding addresses and personal information of third-party clients). HLI should begin in earnest such an effort to the extent it has not already been completed. Responsive documents relating to all the remaining Approved Search Terms should be produced within 15 business days of the filing of this Report and Recommendation. Based upon the foregoing, I report and recommend that Plaintiffs' motion to compel production of all documents responsive subject to the Approved Search Terms should be granted to the extent of the 34 search terms to which HLI has objected. HLI's cross-motions seeking further modification of the Approved Search Terms and a protective order precluding production of hit documents responsive to the 34 search terms is denied. HLI's motion for a protective order with respect to all documents responsive to the remaining 132 search terms is granted to the extent that HLI is permitted to conduct a pre-production responsiveness review, as set forth above, before production of responsive documents. Consistent with the 18 th Report and Recommendation, HLI retains the right to object to any of the 132 search terms that generate an anomalous, inappropriate or burdensome hit count. 8 8 of 12 FILED: WESTCHESTER COUNTY CLERK 11/09/2022 01:19 PM INDEX NO. 60767/2018 NYSCEF DOC. NO. 1468 RECEIVED NYSCEF: 11/09/2022 Proposed TAR Protocol TAR protocol requires transparency and cooperation between opposing counsel to achieve the benefits of a cost effective, dispute-free timely ESI production process. Consistent therewith, counsel must meet and confer in advance to develop a mutually agreeable TAR Protocol and then work to insure its proportional and reasonable application. Commercial Division Rule 11-c directs parties to meet and confer on ESI issues before the entry of a Preliminary Conference Order (Id. 11-c(b)) and, with respect to TAR, directs the parties to confer at the outset of discovery and as needed throughout the discovery period. Similarly, the ESI Guidelines also direct discussion of ESI related issues prior to the entry of a Preliminary Conference Order, including the use of TAR (Guideline II(B)(5)). The Guidelines encourage the use of TAR while recognizing that an ESI "search methodology need not be perfect but should be reasonable under the circumstances." (Id. Guidelines V(C), (D) and (E)). HLI relies heavily upon the Commercial Division Rules and related Guidelines which expressly contemplate the simultaneous use of traditional search terms and a TAR protocol throughout a litigation discovery period. Finally, HLI relies upon the observations of the Subcommittee on Procedural Rules to Promote Efficient Case Resolution which describes an ideal three-step process whereby (1) a TAR protocol is proposed and explained by the producing party, (2) the requesting party is provided an opportunity to challenge the protocol and, (3) failing a resolution via a modified TAR, the requesting party must show that the responding party's TAR is "manifestly unreasonable." HLI argues that manifestly unreasonable standard applies here and that Plaintiffs have failed to meet that burden. The Court disagrees. 9 9 of 12 FILED: WESTCHESTER COUNTY CLERK 11/09/2022 01:19 PM INDEX NO. 60767/2018 NYSCEF DOC. NO. 1468 RECEIVED NYSCEF: 11/09/2022 As evidenced by 19 previously confirmed Reports and Recommendations, in this case the parties have fought about virtually every conceivable discovery issue. These past disputes, which have included multiple ESI issues, have resulted in substantial delay and expense. Throughout this process, HLI had the benefit of a sophisticated ESI consultant and the ability to suggest the application of a TAR protocol. For whatever reason, tactical or otherwise, they chose four years not to do so. Given this history and the posture of this litigation, application of the "manifestly unreasonable" burden to Plaintiffs is neither fair nor appropriate. Moreover, assuming, arguendo, that the Subcommittee's well-intentioned, sensible burden of proof applies to the unique and unfortunate discovery dysfunction in this matter, there is nothing in the record addressing the substantive benefits ofHLI's Proposed TAR Protocol. HLI asserts that since the Commercial Rules (and courts in general) recognize that a responding party "knows best" the kind, volume, storage characteristics and cost of reviewing its own documents, a receiving party, here Plaintiffs, must show the TAR application is manifestly unreasonable. The problem with that argument is twofold. First, Plaintiffs assert that the substance of HLI' s TAR, and its resultant impact on the production of responsive documents, has never been adequately explained to them. HLI unilaterally imposed it. Second, and arguably more important, there is nothing in this record which explains the alleged benefits ofHLI's TAR Protocol to allow determination by the Court if Plaintiffs' refusal to accept HLI's TAR is manifestly unreasonable. 10 of 12 FILED: WESTCHESTER COUNTY CLERK 11/09/2022 01:19 PM INDEX NO. 60767/2018 NYSCEF DOC. NO. 1468 RECEIVED NYSCEF: 11/09/2022 Therefore, I report and recommend that HLI's motion (002) to use the Proposed TAR Protocol be denied. 6 FUTURE PROCEEDINGS This case can no longer remain mired in discovery disputes. The December 31, 2022 discovery deadline is fast approaching. It is apparent all necessary merits-based discovery will not be completed by then, requiring a reasonable and appropriate extension based upon firm dates and established ESI protocols. This will be the subject of a virtual discovery conference between counsel and the Discovery Referee to be conducted the week of November 14, 2022. The parties should meet and confer and advise the Discovery Referee of their mutual availability. 7 The discovery conference will also address the remaining outstanding discovery issues set forth in the parties' discovery motions now pending before the Discovery Referee. CONCLUSION I respectfully report and recommend that the discovery motions be decided in accord with the foregoing. 8 Dated: White Plains, New York November 9, 2022 ' illiam P. Harrington Discovery Referee 6 Discovery disputes are sui generis and their resolutions driven by facts and circumstances unique to each case. I have considered all the legal authorities submitted by the parties. All stand for generic principles applicable to TAR set forth in the Commercial Division Rules. None deal with the unfortunate discovery history at bar. 7 I am cognizant that unless and until confirmed, this Report and Recommendation does not have the imprimatur of a Court Order. Nonetheless, I request a discovery conference at which time I expect to address all remaining outstanding discovery issues, including the discovery deadline. 8 The following submissions of the parties were considered in their entirety: (1) September 16, 2022 letter of Jeremy C. Vest, Esq., with annexed exhibits; (2) September 23, 2022 letter of Robert D. MacGill with annexed motions (19-001, 19-002 and 19-003); and (3) September 27, 2022 letter of Jeremy C. Vest, Esq. with exhibits. 11 11 of 12 FILED: WESTCHESTER COUNTY CLERK 11/09/2022 01:19 PM INDEX NO. 60767/2018 NYSCEF DOC. NO. 1468 RECEIVED NYSCEF: 11/09/2022 TO: All Counsel via NYSCEF 12 12 of 12