Preview
FILED: WESTCHESTER COUNTY CLERK 11/23/2022 03:15 PM INDEX NO. 60767/2018
NYSCEF DOC. NO. 1477 RECEIVED NYSCEF: 11/23/2022
EXHIBIT 1
FILED: WESTCHESTER COUNTY CLERK 11/23/2022 03:15 PM INDEX NO. 60767/2018
NYSCEF DOC. NO. 1477 RECEIVED NYSCEF: 11/23/2022
156 E. Market Street
Suite 1200
Indianapolis, IN 46204
www.MacGillLaw.com
Robert D. MacGill
317.906.5085
Robert.MacGill@MacGillLaw.com
Via Email
September 13, 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,
We write pursuant to the Eighteenth Report and Recommendation, which authorizes
Houlihan Lawrence to propose and secure appropriate modification of your 166 search terms.
Further, in the spirit of cooperation embodied in that Report, we also write to notify you of our
TAR Protocol for the next ESI Review phase of this matter.
In light of the litigation history in this case, we will begin our ESI Review once you
confirm in writing your agreement to the terms and protocols described herein. Your prompt
written approval will be appreciated.
PART I: SEARCH TERM MODIFICATIONS
Houlihan Lawrence will implement the following search term modifications.1 Please
note, this is only the latest round of search term narrowing. As we have informed you, we view
this as an iterative process, necessitated by the quantity and breadth of your proposed search term
list. In light of these circumstances, we anticipate further rounds of collaborative narrowing.
1
For words with dashes, quotation marks will be added around the word. This is because punctuation indexing can
cause issues. We cannot search for an exclamation point. We will only search for documents dated within the class
period.
FILED: WESTCHESTER COUNTY CLERK 11/23/2022 03:15 PM INDEX NO. 60767/2018
NYSCEF DOC. NO. 1477 RECEIVED NYSCEF: 11/23/2022
Jeremy Vest
William Ohlemeyer
September 13, 2022
Page 2
Search Terms With Over 20,000 Hits Before Narrowing2
Current Search Term Modified Search Term
1 agen* w/3 disclos* agen* w/3 disclos* AND NOT ("new york state disclosure"
OR "exclusive right to" OR "memorandum of agreement"
OR "cross property agent" OR "buyer's guide" OR "lead
paint" OR "open house policy")
2 dual w/10 agen* dual w/2 agen* AND NOT ("new york state disclosure" OR
"exclusive right to")
3 dual w/10 designat* dual w/2 designat* AND NOT ("new york state disclosure"
OR "exclusive right to")
Search Terms With Over 10,000 Hits Before Narrowing2
Current Search Term Modified Search Term
4 agen* w/10 443 agen* w/5 443 AND NOT ("new york state disclosure" OR
"exclusive right to")
5 disclos* w/10 help disclos* w/5 help AND NOT ("new york state disclosure"
OR "exclusive right to")
6 dual w/10 form dual w/5 form AND NOT ("new york state disclosure" OR
"exclusive right to")
Search Terms With Over 5,000 Hits Before Narrowing2
Current Search Term Modified Search Term
7 agen* w/10 understand agen* w/3 understand
8 disclos* w/10 fail disclos* w/5 fail
9 disclos* w/10 understand disclos* w/5 understand AND NOT ("new york state
disclosure" OR "exclusive right to")
10 inventory w/10 low “low inventory”
11 inventory w/10 market inventory w/3 market
12 "in house" W/3 sale* "in house" W/3 sale* AND NOT ("new york state
disclosure" OR "exclusive right to" OR "memorandum of
agreement" OR "cross property agent" OR "buyer's guide"
OR "lead paint" OR "open house policy")
13 "in-house" W/3 sale* "in-house" W/3 sale* AND NOT ("new york state
disclosure" OR "exclusive right to" OR "memorandum of
agreement" OR "cross property agent" OR "buyer's guide"
OR "lead paint" OR "open house policy")
2
In the “Documents with hits, including Family” category for the custodians for this search term indicated by
counsel for Plaintiffs.
FILED: WESTCHESTER COUNTY CLERK 11/23/2022 03:15 PM INDEX NO. 60767/2018
NYSCEF DOC. NO. 1477 RECEIVED NYSCEF: 11/23/2022
Jeremy Vest
William Ohlemeyer
September 13, 2022
Page 3
Search Terms With Over 2,000 Hits Before Narrowing2
Current Search Term Modified Search Term
14 agen* w/10 bonus agen* w/3 bonus
15 agen* w/10 hard agen* w/5 hard
16 agen* w/10 HGAR agen* w/5 HGAR
17 bonus w/15 commission AND bonus w/5 commission AND NOT (hotel or "credit card"
NOT (hotel or "credit card" or or airline)
airline)
18 bonus w/15 new AND NOT bonus w/5 new AND NOT (hotel or "credit card" or
(hotel or "credit card" or airline) airline)
19 disclos* w/10 audit disclos* w/5 audit
20 dual w/10 disclos* dual w/5 disclos* AND NOT ("new york state disclosure"
OR "exclusive right to")
21 inventory w/10 know inventory w/3 know
22 inventory w/10 listing inventory w/3 listing
23 “in house” w/3 bonus "in house bonus" AND NOT ("contract sheet information")
24 “in-house” w/3 bonus "in-house bonus" AND NOT ("contract sheet information")
Search Terms With Over 1,000 Hits Before Narrowing2
Current Search Term Modified Search Term
25 agen* w/10 confus* agen* w/5 confus*
26 agen* w/10 difficult agen* w/5 difficult
27 agen* w/10 wrong agen* w/5 wrong
28 bonus w/15 HL AND NOT (hotel bonus w/5 HL AND NOT (hotel or “credit card” or airline)
or "credit card" or airline)
29 bonus w/15 incent* AND NOT bonus w/5 incent* AND NOT (hotel or "credit card" or
(hotel or "credit card" or airline) airline)
30 bonus w/15 listing AND NOT bonus w/5 listing AND NOT (hotel or "credit card" or
(hotel or "credit card" or airline) airline)
31 inventory w/10 declin* inventory w/3 declin*
32 inventory w/10 limited inventory w/3 limited
33 strateg* w/10 grow* strateg* w/3 grow*
34 strateg* w/10 sales strateg* w/3 sales
PART II: SEARCH TERMS FOR WHICH NO MODIFICATION IS CURRENTLY
SOUGHT
You have presently requested 166 search terms.3 We have not proposed at this time
changes to the majority of your search terms. Instead, we have focused on triaging your list to
3
We have and will continue to implement all prior concessions and retractions that you have made to the search
terms.
FILED: WESTCHESTER COUNTY CLERK 11/23/2022 03:15 PM INDEX NO. 60767/2018
NYSCEF DOC. NO. 1477 RECEIVED NYSCEF: 11/23/2022
Jeremy Vest
William Ohlemeyer
September 13, 2022
Page 4
prioritize the remediation of the most extreme examples of overbreadth. As noted, we reserve the
right to continue this narrowing process, including for the terms not challenged today.
PART III: TAR PROTOCOL
We will be utilizing Technology Assisted Review during this phase of the case due to the
immense number of search terms and custodians you have imposed. Please find below our TAR
protocol.
Beginning with the searched, date limited, deduped, and threaded set of documents, we
will review a statistical sample of documents using a 95% confidence level with a 5% margin of
error to generate the sample. This training set will be fed into TAR. We will then build a model
to assign preliminary ranks to the documents.
We will then review documents by rank, starting with the highest ranked documents first
and their respective family members. After each tranche of documents is reviewed (for example,
the documents ranked 90-100), we will refresh the rankings, feeding the newly-reviewed
documents into TAR to update its training. TAR will then assign an updated rank to the
remaining documents. Previously reviewed documents will also have their ranks changed based
on the updated model.
We will proceed with this process until we reach the documents ranked below 65. We
will refresh the ranking one last time. We will review any remaining documents that then rank 65
or above. After that point, if any unreviewed documents rank 65 or below, we will not review
them and they will not be produced.4 Additionally, any remaining unreviewed documents that
were determined to be incompatible with TAR and could not be ranked during the TAR process
will not be reviewed or produced. Any TAR incompatible documents that were family members
of documents ranked above 65 at that time will be reviewed for responsiveness.
Please note, we intend to have humans look at all documents to be produced. The human
will have the discretion to mark any document they look at as responsive or not responsive,
irrespective of TAR’s rank. We will not produce documents outside of a responsive family. Of
course, we reserve the right to withhold for privilege and protection as well.
This letter describes only the technical details associated with our document review. It
does not describe the legal parameters associated with the responsiveness review. Those
parameters will be discussed at a later time if needed.
Best regards.
4
We reserve the right to generate production hit reports based upon either the full set or the set 65 and above. If the
search term narrowing procedures result in a set of initial documents that is too small to efficiently run TAR, we
reserve the right to revert to a traditional document review.
FILED: WESTCHESTER COUNTY CLERK 11/23/2022 03:15 PM INDEX NO. 60767/2018
NYSCEF DOC. NO. 1477 RECEIVED NYSCEF: 11/23/2022
Jeremy Vest
William Ohlemeyer
September 13, 2022
Page 5
Very truly yours,
Robert D. MacGill
cc: Matthew Ciulla, Alfred Donnellan, Nelida Lara
Preview
FILED: WESTCHESTER COUNTY CLERK 11/23/2022 03:15 PM INDEX NO. 60767/2018 NYSCEF DOC. NO. 1477 RECEIVED NYSCEF: 11/23/2022 EXHIBIT 1 FILED: WESTCHESTER COUNTY CLERK 11/23/2022 03:15 PM INDEX NO. 60767/2018 NYSCEF DOC. NO. 1477 RECEIVED NYSCEF: 11/23/2022 156 E. Market Street Suite 1200 Indianapolis, IN 46204 www.MacGillLaw.com Robert D. MacGill 317.906.5085 Robert.MacGill@MacGillLaw.com Via Email September 13, 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, We write pursuant to the Eighteenth Report and Recommendation, which authorizes Houlihan Lawrence to propose and secure appropriate modification of your 166 search terms. Further, in the spirit of cooperation embodied in that Report, we also write to notify you of our TAR Protocol for the next ESI Review phase of this matter. In light of the litigation history in this case, we will begin our ESI Review once you confirm in writing your agreement to the terms and protocols described herein. Your prompt written approval will be appreciated. PART I: SEARCH TERM MODIFICATIONS Houlihan Lawrence will implement the following search term modifications.1 Please note, this is only the latest round of search term narrowing. As we have informed you, we view this as an iterative process, necessitated by the quantity and breadth of your proposed search term list. In light of these circumstances, we anticipate further rounds of collaborative narrowing. 1 For words with dashes, quotation marks will be added around the word. This is because punctuation indexing can cause issues. We cannot search for an exclamation point. We will only search for documents dated within the class period. FILED: WESTCHESTER COUNTY CLERK 11/23/2022 03:15 PM INDEX NO. 60767/2018 NYSCEF DOC. NO. 1477 RECEIVED NYSCEF: 11/23/2022 Jeremy Vest William Ohlemeyer September 13, 2022 Page 2 Search Terms With Over 20,000 Hits Before Narrowing2 Current Search Term Modified Search Term 1 agen* w/3 disclos* agen* w/3 disclos* AND NOT ("new york state disclosure" OR "exclusive right to" OR "memorandum of agreement" OR "cross property agent" OR "buyer's guide" OR "lead paint" OR "open house policy") 2 dual w/10 agen* dual w/2 agen* AND NOT ("new york state disclosure" OR "exclusive right to") 3 dual w/10 designat* dual w/2 designat* AND NOT ("new york state disclosure" OR "exclusive right to") Search Terms With Over 10,000 Hits Before Narrowing2 Current Search Term Modified Search Term 4 agen* w/10 443 agen* w/5 443 AND NOT ("new york state disclosure" OR "exclusive right to") 5 disclos* w/10 help disclos* w/5 help AND NOT ("new york state disclosure" OR "exclusive right to") 6 dual w/10 form dual w/5 form AND NOT ("new york state disclosure" OR "exclusive right to") Search Terms With Over 5,000 Hits Before Narrowing2 Current Search Term Modified Search Term 7 agen* w/10 understand agen* w/3 understand 8 disclos* w/10 fail disclos* w/5 fail 9 disclos* w/10 understand disclos* w/5 understand AND NOT ("new york state disclosure" OR "exclusive right to") 10 inventory w/10 low “low inventory” 11 inventory w/10 market inventory w/3 market 12 "in house" W/3 sale* "in house" W/3 sale* AND NOT ("new york state disclosure" OR "exclusive right to" OR "memorandum of agreement" OR "cross property agent" OR "buyer's guide" OR "lead paint" OR "open house policy") 13 "in-house" W/3 sale* "in-house" W/3 sale* AND NOT ("new york state disclosure" OR "exclusive right to" OR "memorandum of agreement" OR "cross property agent" OR "buyer's guide" OR "lead paint" OR "open house policy") 2 In the “Documents with hits, including Family” category for the custodians for this search term indicated by counsel for Plaintiffs. FILED: WESTCHESTER COUNTY CLERK 11/23/2022 03:15 PM INDEX NO. 60767/2018 NYSCEF DOC. NO. 1477 RECEIVED NYSCEF: 11/23/2022 Jeremy Vest William Ohlemeyer September 13, 2022 Page 3 Search Terms With Over 2,000 Hits Before Narrowing2 Current Search Term Modified Search Term 14 agen* w/10 bonus agen* w/3 bonus 15 agen* w/10 hard agen* w/5 hard 16 agen* w/10 HGAR agen* w/5 HGAR 17 bonus w/15 commission AND bonus w/5 commission AND NOT (hotel or "credit card" NOT (hotel or "credit card" or or airline) airline) 18 bonus w/15 new AND NOT bonus w/5 new AND NOT (hotel or "credit card" or (hotel or "credit card" or airline) airline) 19 disclos* w/10 audit disclos* w/5 audit 20 dual w/10 disclos* dual w/5 disclos* AND NOT ("new york state disclosure" OR "exclusive right to") 21 inventory w/10 know inventory w/3 know 22 inventory w/10 listing inventory w/3 listing 23 “in house” w/3 bonus "in house bonus" AND NOT ("contract sheet information") 24 “in-house” w/3 bonus "in-house bonus" AND NOT ("contract sheet information") Search Terms With Over 1,000 Hits Before Narrowing2 Current Search Term Modified Search Term 25 agen* w/10 confus* agen* w/5 confus* 26 agen* w/10 difficult agen* w/5 difficult 27 agen* w/10 wrong agen* w/5 wrong 28 bonus w/15 HL AND NOT (hotel bonus w/5 HL AND NOT (hotel or “credit card” or airline) or "credit card" or airline) 29 bonus w/15 incent* AND NOT bonus w/5 incent* AND NOT (hotel or "credit card" or (hotel or "credit card" or airline) airline) 30 bonus w/15 listing AND NOT bonus w/5 listing AND NOT (hotel or "credit card" or (hotel or "credit card" or airline) airline) 31 inventory w/10 declin* inventory w/3 declin* 32 inventory w/10 limited inventory w/3 limited 33 strateg* w/10 grow* strateg* w/3 grow* 34 strateg* w/10 sales strateg* w/3 sales PART II: SEARCH TERMS FOR WHICH NO MODIFICATION IS CURRENTLY SOUGHT You have presently requested 166 search terms.3 We have not proposed at this time changes to the majority of your search terms. Instead, we have focused on triaging your list to 3 We have and will continue to implement all prior concessions and retractions that you have made to the search terms. FILED: WESTCHESTER COUNTY CLERK 11/23/2022 03:15 PM INDEX NO. 60767/2018 NYSCEF DOC. NO. 1477 RECEIVED NYSCEF: 11/23/2022 Jeremy Vest William Ohlemeyer September 13, 2022 Page 4 prioritize the remediation of the most extreme examples of overbreadth. As noted, we reserve the right to continue this narrowing process, including for the terms not challenged today. PART III: TAR PROTOCOL We will be utilizing Technology Assisted Review during this phase of the case due to the immense number of search terms and custodians you have imposed. Please find below our TAR protocol. Beginning with the searched, date limited, deduped, and threaded set of documents, we will review a statistical sample of documents using a 95% confidence level with a 5% margin of error to generate the sample. This training set will be fed into TAR. We will then build a model to assign preliminary ranks to the documents. We will then review documents by rank, starting with the highest ranked documents first and their respective family members. After each tranche of documents is reviewed (for example, the documents ranked 90-100), we will refresh the rankings, feeding the newly-reviewed documents into TAR to update its training. TAR will then assign an updated rank to the remaining documents. Previously reviewed documents will also have their ranks changed based on the updated model. We will proceed with this process until we reach the documents ranked below 65. We will refresh the ranking one last time. We will review any remaining documents that then rank 65 or above. After that point, if any unreviewed documents rank 65 or below, we will not review them and they will not be produced.4 Additionally, any remaining unreviewed documents that were determined to be incompatible with TAR and could not be ranked during the TAR process will not be reviewed or produced. Any TAR incompatible documents that were family members of documents ranked above 65 at that time will be reviewed for responsiveness. Please note, we intend to have humans look at all documents to be produced. The human will have the discretion to mark any document they look at as responsive or not responsive, irrespective of TAR’s rank. We will not produce documents outside of a responsive family. Of course, we reserve the right to withhold for privilege and protection as well. This letter describes only the technical details associated with our document review. It does not describe the legal parameters associated with the responsiveness review. Those parameters will be discussed at a later time if needed. Best regards. 4 We reserve the right to generate production hit reports based upon either the full set or the set 65 and above. If the search term narrowing procedures result in a set of initial documents that is too small to efficiently run TAR, we reserve the right to revert to a traditional document review. FILED: WESTCHESTER COUNTY CLERK 11/23/2022 03:15 PM INDEX NO. 60767/2018 NYSCEF DOC. NO. 1477 RECEIVED NYSCEF: 11/23/2022 Jeremy Vest William Ohlemeyer September 13, 2022 Page 5 Very truly yours, Robert D. MacGill cc: Matthew Ciulla, Alfred Donnellan, Nelida Lara