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FILED: WESTCHESTER COUNTY CLERK 11/23/2022 03:15 PM INDEX NO. 60767/2018
NYSCEF DOC. NO. 1478 RECEIVED NYSCEF: 11/23/2022
EXHIBIT 2
FILED: WESTCHESTER COUNTY CLERK 11/23/2022 03:15 PM INDEX NO. 60767/2018
NYSCEF DOC. NO. 1478 RECEIVED NYSCEF: 11/23/2022
Jeremy C. Vest Chrysler Center
212 692 6718 666 Third Avenue
jvest@mintz.com New York, NY 10017
212 935 3000
mintz.com
September 16, 2022
Via E-Mail
Mr. William P. Harrington
Bleakley Platt & Schmidt, LLP
One North Lexington Avenue
White Plains, NY 10601
Re: Goldstein et al. v. Houlihan/Lawrence Inc.,
No. 60767/2018 (N.Y. Sup. Ct., Westchester Cty.)
Dear Mr. Harrington:
Plaintiffs write in response to your direction that the parties report on the
status of discovery and identify issues requiring the Discovery Referee’s immediate
attention. Plaintiffs write separate from Houlihan Lawrence because, as shown
below, its recent correspondence confirms that it still has not exhausted its efforts
to frustrate completion of merits discovery. Plaintiffs will write again next week to
address deficiencies in Houlihan Lawrence’s existing production but focus today on
only the most urgent issue to avoid any delay in its resolution.
Even though 235 days have passed since the Court granted class certification
and only 107 days remain before expiration of the December 31, 2022 deadline to
complete merits fact discovery, Houlihan Lawrence has yet to produce a single
document from the ten custodians designated by Plaintiffs in accordance with the
17th and 18th R&Rs. Even worse, on Tuesday, Houlihan Lawrence refused even to
begin its custodial collection until Plaintiffs agree to nearly three-dozen
modifications of their search terms and to Houlihan Lawrence’s use of a separate
Technologically Assisted Review (“TAR”) process to further cull the universe of
documents to be manually reviewed from the document set already substantially
narrowed by Plaintiffs’ search terms. In other words, Houlihan Lawrence has
predictably manufactured another round of frivolous disputes to plunge the case
back into the procedural morass that previously stalled merits discovery for nearly
eight months. Plaintiffs should neither have to surrender the hard-earned benefits
of the Discovery Referee’s recent rulings nor waste several more months to secure
them for a second time.
BOSTON LONDON LOS ANGELES NEW YORK SAN DIEGO SAN FRANCISCO WASHINGTON
MINTZ, LEVIN, COHN, FERRIS, GLOVSKY AND POPEO, P.C.
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September 16, 2022
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The 16th R&R recognized that this case “involves issues of significant public
interest,”1 a fact recently underscored by the third whistleblower to now come
forward,2 and the Discovery Referee therefore put Houlihan Lawrence on notice to
“proceed with the expectation that there will not be any extraordinary delay of this
litigation or substantial relief from existing discovery deadlines.”3 Yet Houlihan
Lawrence continues to flaunt that Order, confident that it will forever enjoy the
presumption of good faith that the Discovery Referee has generously afforded all
parties. The Discovery Referee must fulfill the commitment not to permit “dilatory
tactics”4 and to “holding the Dec. 31 deadline for the substantial completion of
discovery”5 by ordering Houlihan Lawrence to produce every non-privileged
document that “hits” on Plaintiffs’ search terms within 14 days.
1. Search term modifications
After the Court denied Houlihan Lawrence’s appeal of the 17th R&R,6 on
July 29, 2022, Houlihan Lawrence conceded confirmation of the 18th R&R, which
rejected its parallel motion to reconsider the 17th R&R.7 With the parties’ disputes
regarding search terms and custodians now resolved, one business day later, on
August 1, 2022,8 Plaintiffs sent Houlihan Lawrence the search terms to be used for
its custodial collection, as directed by the 18th R&R.9
Rather than promptly raise any issue with those search terms—or better yet,
commence its production—Houlihan Lawrence sat idle for the next six weeks, as if
it was free to wait until the Court took the ministerial step of formally granting
1 16th R&R (Dkt. 1356) at 5
2 Ex. 1, Anonymous Letters No. 3, dated Aug. 19, 2022
3 16th R&R (Dkt. 1356) at 6
4 Dkt. 1356 at 10,
5 Ex. 2, Email from W. Harrington to J. Vest, dated May 19, 2022
6 Dkt. 1459
7 Decision and Order (Dkt. 1461), dated Sept. 8, 2022 at 3 (recognizing “the absence
of any opposition to class action plaintiffs’ motion seeking confirmation” of the 18th
R&R)
8 Ex. 3, Email from J. Vest to R. MacGill, dated August 1, 2022
9 18th R&R (Dkt. 1412) at 2, n. 2 (“To avoid any confusion, plaintiffs’ counsel shall
submit to HLI’s counsel and the Discovery Referee via email the modified set of
search terms.”)
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Plaintiffs’ unopposed motion to confirm the 18th R&R. In reality, Houlihan
Lawrence should have completed its production, in accordance with the 14th R&R,10
within 30 days of the expiration of its July 29, 2022 deadline to oppose confirmation
of the 18th R&R.
Houlihan Lawrence instead did not speak up until September 13, 2022, when
it announced not only that it had slashed the number of documents subject to
manual review by making 34 unilateral modifications to Plaintiffs’ search terms,
but also that it next intended to utilize a TAR process to chop down that already-
narrowed set of review documents still further. In other words, even though search
term queries and TAR are typically alternative ways to reduce the volume of
documents subject to review, eight months into merits discovery Houlihan
Lawrence announced that it intended to layer one approach on top of the other.
The Discovery Referee’s commitment to hold the December 31, 2022 discovery
deadline put Houlihan Lawrence on notice that it needed to act with all due speed
to seek any further modification of Plaintiffs’ search terms. By its deliberate and
strategic inaction, Houlihan Lawrence waived any right to do so now. The Court’s
delay during the summer vacation in tidying up the docket to reflect Houlihan
Lawrence’s concession of the 18th R&R does not constitute good cause sufficient to
justify the adjournment of the December 31, 2022 deadline that will inevitably
result if the Discovery Referee entertains another round of search term litigation.
Houlihan Lawrence’s failure to provide even the most basic information
necessary to evaluate Plaintiffs’ search terms shows no less vividly than its six-
week hiatus that it remains hell-bent on delay. Most obviously, Houlihan Lawrence
fails to report the total number of unique documents captured by Plaintiffs’ search
terms. Houlihan Lawrence instead implies that its review burden is equal to the
sum of the search term “hit” counts, but many of Plaintiffs’ search terms will “hit”
the same documents. The three search terms reported to have over 20,000 hits, for
instance, would each “hit” on the New York State Disclosure Form for Buyer and
Seller.11 The “hit” counts are therefore not indicative of Houlihan Lawrence’s
10 14th R&R (Dkt. 1083) at ¶ 4 (directing completion of document production within
30 days as required by CPLR § 3120)
11 Dkt. 1412 at 1-2.
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review burden because Houlihan Lawrence admits that it can de-duplicate the
collection before starting its review.12
Houlihan Lawrence’s failure even to provide “hit” counts for its modified
search terms is no less conspicuous. Do Houlihan Lawrence’s modifications reduce
the “hits” by 25%? 50%? 75%? Has Houlihan Lawrence done any systematic
testing of its modified search terms to determine whether they leave behind
significant numbers of responsive documents captured by Plaintiffs’ search terms?
Houlihan Lawrence does not provide this obviously critical information either
because it undermines Houlihan Lawrence’s position, to make Plaintiffs waste time
fighting for it, or for both reasons. Whatever the case, Houlihan Lawrence should
no longer get more than one opportunity to carry its burden, and its failure to
volunteer this information—especially after an inexcusable six-week delay—is
grounds enough to reject the modifications.
What little information Houlihan Lawrence does provide does nothing to
undermine the reasonableness of Plaintiffs’ search terms. Even those search terms
that purportedly returned 20,000 “hits” would not impose an unreasonable review
burden on Houlihan Lawrence given the obvious relevance of the documents
captured by those terms and the significant public importance and monetary stakes
of this litigation.13 Allen v. Tertle Operations LLC, 70 Misc.3d 934, 949
(Westchester Cnty. Dec. 17, 2020) (“[I]f a case has the potential for broad public
impact, then public policy weighs heavily in favor of permitting extensive
discovery.”) (quoting Zubulake v. UBS Warburg LLC, 217 F.R.D. 309, 321). Indeed,
an average of 2,000 documents per custodian relating to dual agency and agency
disclosure is neither surprising nor on its face unduly burdensome.
Indeed, Houlihan Lawrence provides no reason to believe that a significant
percentage of those documents are non-responsive. As courts have recognized, “the
large percentage of documents collected by the plaintiffs’ search terms, standing
alone, is not meaningful.” In re Diisocyanates Antitrust Litig., 2021 U.S. Dist.
LEXIS 181388 at *31-32. “[T]hat figure may simply indicate that most of the emails
actually bear some relevance, or at least include language captured by reasonable
12 Ex. 4, Letter from R. MacGill to J. Vest, Sept. 13, 2022 at 4 (“Beginning with the
searched, date limited, deduped, and threaded set of documents, we will review a
statute sample of documents”) (emphasis added)
13 See Ex. 4, Letter from R. MacGill to J. Vest, Sept. 13, 2022 at 2 (reporting
cumulative hit counts for the disputed search terms)
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search terms. Id. at *31-32 (quoting In re Fannie Mae Sec. Litig., 552 F.3d 814, 821
(D.C. Civ. 2009).
As for its modified search terms, Houlihan Lawrence did not design them to
weed out non-responsive documents but to conceal relevant ones. Take the first
modification for example: Houlihan Lawrence narrows “agen* w/3 disclos*” with the
Boolean operator AND NOT “new york state disclosure”.14 That modification would
exclude every communication between sales agents and their clients about the “New
York State Disclosure Form for Buyer and Seller” (the “Form”)—even though
whether and to what extent Houlihan Lawrence’s sales agents explained dual
agency when sending clients the Form is one of the central issues under
investigation. Plaintiffs are especially interested to see what some of the most
successful and experienced sales agents said (or did not say) when sending clients
the Form given Houlihan Lawrence’s intent to call 100 sales agents at trial to
testify about their agency disclosure in 4,000 transactions. Houlihan Lawrence
cannot be taken seriously when it puts forward modified search terms that defeat
the very purpose of conducting the search in the first place.
As damning as the foregoing conduct may be, nothing better illustrates
Houlihan Lawrence’s contempt of court than its brazen disregard of the 18th R&R,
which expressly directed Houlihan Lawrence to use “the modified search terms set
forth in the June 30, 2022 email of [P]laintiffs attorney, Jeremy Vest, Esq.” for its
custodial collection.15 As reported in the 18th R&R and confirmed by Plaintiffs on
August 1, 2022,16 those search terms included (1) “agen* w/5 disclos*” and (2) “‘in
house’ w/5 sale*” and “‘in-house’ w/5 sale*”. However, in reporting “hit” counts for
what it says are Plaintiffs’ search terms, Houlihan Lawrence unilaterally shrinks
the proximity limiter to w/3, and therefore reports “hit” counts only for (1) “agen*
w/3 disclos*” and (2) “‘in house’ w/3 sale*” and “‘in-house’ w/3 sale*”.
Houlihan Lawrence’s sly assertion in a footnote that “[w]e have and will
continue to implement all prior concessions and retractions that you have made to
the search terms”17 shows that it did not make a mistake—it willfully disobeyed
what the Court’s confirmation of the 18th R&R makes a Court Order. As the
14 Id. at 2
15 18th R&R (Dkt. 1412) at 1; see also Ex. 5, Email from J. Vest to W. Harrington,
dated June 30, 2022
16 Ex. 3, Email from J. Vest to R. MacGill, dated Aug. 1, 2022
17 Ex. 4, Letter from R. MacGill to J. Vest, dated Sept. 13, 2022 at 3, n. 3
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September 16, 2022
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Discovery Referee will recall, in the run-up to the 18th R&R, Plaintiffs twice agreed
to reduce the proximity limiter for the above-referenced search terms (first from
w/10 to w/5, then to w/3) to avoid the delay caused by continued litigation.18
However, after Houlihan Lawrence failed to reciprocate Plaintiffs’ attempt to
compromise,19 the 18th R&R declined to accept Plaintiffs’ second reduction, ordering
Houlihan Lawrence instead to use the w/5 proximity limiter.20 Houlihan
Lawrence’s footnote shows that it knows its defiance of that clear and unambiguous
ruling is so outrageous that it needed to feign to have come clean about it in case
Plaintiffs spotted it among Houlihan Lawrence’s many other sleights of hand.
All of this still only scratches the surface of the problems with Houlihan
Lawrence’s latest search term modifications, and Houlihan Lawrence is so cocksure
that it is already promising that “this is only the latest round of search term
narrowing.”21 The 18th R&R recognized that Plaintiffs’ search terms “are designed
to generate the appropriate and reasonable discovery to which plaintiffs are
entitled” and already reflect a “substantial compromise” by Plaintiffs to end this
dispute.22 The Discovery Referee must stand by that ruling.
2. TAR process
The only thing more risible than Houlihan Lawrence’s attempt to litigate its
belated search term modifications is its newfound intent to layer a TAR process that
it unilaterally developed upon on the already narrowed search terms document set.
TAR is a process whereby human reviewers and a computer engage in an
interactive process to “train” the computer how to identify responsive documents
based on properties and characteristics beyond simple search terms. Because TAR
is an alternative way to identify responsive documents that does not rely on
keyword queries, it obviates the need to select and haggle over search terms. It was
thus incumbent on Houlihan Lawrence to select its preferred method for locating
18 See Ex. 6, Email from J. Vest to W. Harrington, dated July 6, 2022 and Ex. 7,
Email from J. Vest to W. Harrington, dated July 11, 2022
19 See Ex. 8, Letter from R. MacGill to W. Harrington, dated July 8, 2022
20
18th R&R (Dkt. 1412) at 1
21 Ex. 4, Letter from R. MacGill to J. Vest, dated Sept. 13, 2022 at 1; see also id. at 4
(“As noted, we reserve the right to continue this narrowing process, including for
the terms not challenged today.”)
22 18th R&R (Dkt. 1412) at 2
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responsive documents—search terms or TAR—before it dragged Plaintiffs and the
Discovery Referee through months of search term litigation. In re Valsartan,
Losartan, & Irbesartan Prods. Liab., Litig., 337 F.R.D. 610, 621 (D.N.J. Dec. 2,
2020) (“The time to meet and confer with plaintiffs [regarding TAR] was before the
parties and the Court proceeded under the reasonable assumption that a manual
search term review would be done, and not on the eve of the of the first rolling
production.”).
The discussions that preceded the 17th and 18th R&Rs would have looked
much different if HL had not led Plaintiffs and the Discovery Referee to believe that
it would conduct a “linear review” of the search term results.23 Plaintiffs would
have insisted that Houlihan Lawrence choose one collection method or the other. In
the highly unlikely event the Discovery Referee authorized use of both methods,
Plaintiffs never would have made a “substantial compromise” and agreed to narrow
their search terms, since the number of “hits” generated by their search terms
would have been irrelevant if Houlihan Lawrence was not going to manually review
those documents but instead cull them further by TAR.
Courts have recognized for these reasons that a producing party must
disclose its intention to use TAR “at the earliest possible time.” In re Valsartan,
Losartan, & Irbesartan Prods. Liab. Litig., 337 F.R.D. 610, 618 (D.N.J. Dec. 2,
2020). In In re Valsartan, after the parties spent “more or less a year” negotiating
search terms and only weeks before their first rolling production was due, the
producing party disclosed for the first time its intent to use TAR. The court agreed
with the requesting party (whom it described as “apoplectic”) that the TAR
disclosure was untimely:
The Court agrees with plaintiffs that, ‘Teva’s intention to use
[TAR] should have been disclosed at the earliest possible time.’
Contrary to Teva’s position, this occurred before Teva
subjectively decided to use [TAR]. Since the backbone of TAR’s
use is transparency and collaboration, Teva should have
disclosed to plaintiffs in the fall that it might use TAR since at
that time it was objectively reasonable and foreseeable that
23 See, e.g., Ex. 9, Letter from R. MacGill to W. Harrington, June 20, 2022 at 3
(complaining that one of Plaintiffs’ search terms “will require the linear review of
more than 30,000 document for just two custodians.”) (emphasis in original); Ex. 10,
W. Harrington Hr’g Tr. (June 28, 2022) at 21:2-5 (‘it’s hard for us to predict how
many hours and how many months it would take us to do a linear review.”)
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Teva might use TAR in the future. This should have enabled
the parties to fairly collaborate on the protocol to use.
‘Electronic discovery requires cooperation between opposing
counsel and transparency in all aspects of the preservation and
production of ESI.’ Early disclosure would have likely prevented
the parties from going down the rabbit hole of laborious search
term negotiations. As is evident by what happened here, ‘the
failure to engage in a collaborative search and sampling strategy
can often yield discovery dysfunction.’
In re Valsartan, 337 F.R.D. at 618 (internal citations omitted).
Similarly, here, given (1) Houlihan Lawrence faces hundreds of millions of
dollars in potential liability, (2) the volume of material sought by Plaintiffs, and (3)
Houlihan Lawrence’s retention of a “sophisticated and well-regarded third-party
ESI vendor” like Consilio,24 HL knew from the outset of merits discovery that it
might use TAR. The 14th R&R required the parties to “meet and confer and
attempt to resolve disputes regarding document discovery requests and production
by March 28, 2022,”25 yet Houlihan Lawrence did not disclose until September 13,
2022 that it might use TAR to locate responsive documents. As in Valsartan, HL
negotiated a search term protocol and now impermissibly seeks to “change horses
midstream.” In re Valsartan, 337 F.R.D. at 622 (“The time for Teva to make its
TAR disclosure was before the ‘die was cast,’ not afterwards.”).
In addition to failing to make a timely TAR disclosure, Houlihan Lawrence
also violated its duty to meet and confer with Plaintiffs to develop the TAR protocol.
“A long line of cases holds that TAR requires ‘an unprecedented degree of
transparency and cooperation among counsel in the review and production of
ESI responsive to discovery requests.’” In re Valsartan, 337 F.R.D. 610, 622 (D.N.J.
2020) (emphasis added); see also Progressive Cas. Ins. Co., 2014 U.S. Dist. LEXIS
69166 at *28-29 (“The cases which have approved technology assisted review of ESI
have required an unprecedented degree of transparency and cooperation among
counsel in the review and production of ESI responsive to discovery requests.”). It
is far too late for the parties to start working now to put together an appropriate
and effective TAR protocol, especially given that Plaintiffs’ TAR specialists have
already confirmed, based just on the limited information provided by Houlihan
Lawrence to date, that its TAR protocol is fatally defective. Even if time were no
24 15th R&R (Dkt. 1307) at 2
25 14th R&R (Dkt. 1083) at ¶ 2 (emphasis in original)
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issue, Houlihan Lawrence has more than proven itself incapable of providing the
“unprecedented degree of transparency and cooperation” necessary to work with
Plaintiffs to develop a valid TAR protocol.
3. The solution
As recently as June 10, 2022, the Discovery Referee affirmed, “[t]he
December 31, 2022 deadline was not arbitrary when initially set, nor arbitrary
now.”26 To fulfill that pledge, the Discovery Referee must order Houlihan Lawrence
to produce within 14 days all non-privileged documents in the custodial files of the
custodians designated by Plaintiffs that “hit” on the search terms that Plaintiffs
sent to Houlihan Lawrence on August 1, 2022.
Rejecting re-litigation of the ESI protocol and bypassing the inevitable
disputes that will result from Houlihan Lawrence’s manual review for
responsiveness is the only way to break the logjam that threatens to delay this case
indefinitely. Indeed, in addition to already promising a third round of search term
litigation, Houlihan Lawrence foreshadows disputes about the adequacy of its
future production by concluding its September 13 letter with the coy reminder that
it will conduct its responsiveness review in accordance with undisclosed “legal
parameters” that it will discuss only at some unspecified “later time if needed.”27
The Discovery Referee need only remember Houlihan Lawrence’s past
discovery misconduct to foresee the significant production disputes on the horizon:
Houlihan Lawrence did not identify Arlt as a person with knowledge in
its sworn interrogatory responses even though it knew he was the in-
house “guru” who had drafted its training and policy documents;
Houlihan Lawrence refused to produce Arlt’s documents—even after
Plaintiffs uncovered his central role—until ordered to do so on the eve
of class certification; and
Houlihan Lawrence withheld In-House Bonus and Dalton documents
that were “found to be responsive by an in camera review.”28
26 16th R&R (Dkt. 1356) at 5
27 Ex. 4, Letter from R. MacGill to J. Vest, dated Sept. 13, 2022
28 12th R&R (Dkt. 677) at 3 (granted extension “subject to the continuation of
ongoing rolling production of the Transaction Files”)
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A more recent example proves the same point that the Discovery Referee
cannot trust Houlihan Lawrence to do the right thing. The Discovery Referee
generously extended Houlihan Lawrence’s deadline to produce its transaction files
to August 12, 2022, on the condition that it make a rolling production on two-week
intervals to ameliorate the prejudice to Plaintiffs due to the delay.29 Houlihan
Lawrence complied at best only in the most superficial sense—it produced only
approximately 2,700 transaction files between May 6, 2022 and July 15, 2022, but
then produced 3,868 transaction files on July 28, 2022 and another 5,526 on August
12, 2022. In other words, it produced more than three times the number of
transaction files in the last two weeks of the production period than it had produced
in the previous three months combined. It did so to further delay issuance of class
notice (adversely affecting the rights and interest of all 10,000 or so Class members)
by frustrating Plaintiffs’ ability to timely identify the arbitration signatories who
the Court has now excluded from the Class. Houlihan Lawrence thus betrayed the
spirit if not the letter of the 15th R&R, making a mockery of the Discovery Referee’s
careful balancing of the parties’ interests. Houlihan Lawrence’s conduct in this and
so many other regards teaches that it will exploit any wiggle room in the Discovery
Referee’s rulings to take whatever relief it could not earn.
The Discovery Referee has already thrice ordered Houlihan Lawrence to
produce documents without a manual review, correctly recognizing that the
Confidentiality Stipulation provides Houlihan Lawrence ample protection from the
improper use of non-responsive documents.30 Houlihan Lawrence ratified those
decisions by not asking the Court to reject them (as it did with the 17th R&R), and
in fact with respect to the Dalton documents, it voluntarily complied even though
the Discovery Referee gave it the choice of an in camera review instead.31 The
29 15th R&R (Dkt. 1307) at 8
30 See 7th R&R (Dkt. 627) at 2-3 (ordering production of the “balance of the In-
House Bonus emails” without a further manual review for responsiveness); id. at 5
(ordering production of Dalton documents that hit on Plaintiffs’ search terms
without a further manual review); 12th R&R (Dkt. 677) at 3 (ordering production of
Arlt documents that “hit” on Plaintiffs’ search terms without a further manual
review because “[t]he Standing Confidentiality Order addresses any concern of HLI
regarding the inadvertent production of non-responsive confidential information.”).
31 See 7th R&R (Dkt. 627) at 7 (“[I]f the foregoing does not alleviate defendant’s
concerns regarding privilege or confidentiality, it has the option of submitting the
Dalton documents to me for in camera review which I would conduct using the same
protocol as used for the In-House Bonus emails.”)
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Discovery Referee’s broad sealing order earlier this year affords Houlihan Lawrence
even greater protection now from disclosure of its confidential information.32
The Discovery Referee is not alone in ordering production of all “hit”
documents without a manual review. In Progressive Cas. Ins. Co. v. Delaney, 2014
U.S. Dist. LEXIS 69166 (D. Nev. July 18, 2014), for instance, the court denied
another producing party’s untimely disclosure of its intention to use TAR, and
instead ordered them to produce all “hit” documents within 14 days without a
manual review. The Progressive court reasoned that dispensing with a
responsiveness review was, as here, necessary to “allow discovery, which has been
stalled for many months while this dispute is pending, to move forward, and reduce
future disputes about [the producing party’s] production.” Id. at *32.
Plaintiffs are the only party who will suffer if Houlihan Lawrence is correct
that Plaintiffs’ search terms are overbroad. In that case, Houlihan Lawrence’s
production of every non-privileged document that “hits” on Plaintiffs’ search terms
will bury Plaintiffs in paper that they will waste precious time sorting through
during the waning discovery period. Id. at *32 (recognizing that production of all
“hit” documents “will shift the cost of review” to the requesting party). Houlihan
Lawrence, on the other hand, can use its own proposed search terms and TAR
process—which it says can efficiently identify responsive documents—to spare itself
that same burden.
Houlihan Lawrence does not need to review the entire search results to locate
potentially privileged documents. Houlihan Lawrence’s pre-class certification
categorical privilege log shows that it knows the names of those with whom it
engaged in privileged communications, and its retention of Consilio means that it
has the technological capability and sophistication to sort the search results for
communications involving or referencing them. In the event a privileged document
slips through, “HLI successfully argued for a claw-back provision in the
Confidentiality Order which further enhances the protections against inadvertent
disclosure of confidential information.”33
32 See 13th R&R (Dkt. 1052) (sealing several categories of information) and
(Amended) 13th R&R (Dkt. 1075) (same)
33 12th R&R (Dkt. 677) at 3-4
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* * *
Plaintiffs take seriously the Discovery Referee’s observation that hyperbolic
accusations of “bad faith tactics” are “neither persuasive nor helpful,”34 but “[t]he
public pays a price when litigants use up the courts’ time with gamesmanship and
repetition.” Victorinox AG v. B&F Sys., 2015 U.S. Dist. LEXIS 169908 at *22
(S.D.N.Y. Dec. 12, 2015). The legal profession cannot mince words or otherwise
tolerate that type of conduct if it is going to continue to say with a straight face,
“[l]itigation is not a game. It is the time-honored method of seeking truth, finding
the truth, and doing justice.” HM Elec., Inc. v. R.F. Techs., Inc., 2015 U.S. Dist.
LEXIS 104100 (S.D. Cal. Aug. 7, 2015) (quoting Haeger v. Goodyear Tire & Rubber
Co., 793 F.3d 1122, 1126, n. 1 (9th Cir. 2015).
Plaintiffs therefore have a duty to point out that Houlihan Lawrence’s
conduct in this case is a repetition of the kind of “inappropriate litigation behavior”
recently called out by a federal court in another case first-chaired by its counsel.
See AgroFresh Inc. v. Essentiv LLC, et al., 2020 U.S. Dist. LEXIS 222898 at *80-83
(D. Del. Nov. 30, 2020) (admonishing counsel for unprofessional conduct that
“contributed substantially to the caustic nature” of the litigation).
That said, while Houlihan Lawrence’s discovery misconduct supports
ordering production of all “hit” documents without a manual review, the Discovery
Referee does not need to find fault with Houlihan Lawrence to grant that relief.
Instead, the Discovery Referee only has to recognize that advancing this important
consumer protection class action to trial best serves the interests of justice.
For the reasons set forth above, the Discovery Referee should reject Houlihan
Lawrence’s eleventh-hour rewrite of the ESI protocol developed over the last eight
months.
Regards,
Jeremy Vest
34 Dkt. 1355 at 1, n. 2
Preview
FILED: WESTCHESTER COUNTY CLERK 11/23/2022 03:15 PM INDEX NO. 60767/2018 NYSCEF DOC. NO. 1478 RECEIVED NYSCEF: 11/23/2022 EXHIBIT 2 FILED: WESTCHESTER COUNTY CLERK 11/23/2022 03:15 PM INDEX NO. 60767/2018 NYSCEF DOC. NO. 1478 RECEIVED NYSCEF: 11/23/2022 Jeremy C. Vest Chrysler Center 212 692 6718 666 Third Avenue jvest@mintz.com New York, NY 10017 212 935 3000 mintz.com September 16, 2022 Via E-Mail Mr. William P. Harrington Bleakley Platt & Schmidt, LLP One North Lexington Avenue White Plains, NY 10601 Re: Goldstein et al. v. Houlihan/Lawrence Inc., No. 60767/2018 (N.Y. Sup. Ct., Westchester Cty.) Dear Mr. Harrington: Plaintiffs write in response to your direction that the parties report on the status of discovery and identify issues requiring the Discovery Referee’s immediate attention. Plaintiffs write separate from Houlihan Lawrence because, as shown below, its recent correspondence confirms that it still has not exhausted its efforts to frustrate completion of merits discovery. Plaintiffs will write again next week to address deficiencies in Houlihan Lawrence’s existing production but focus today on only the most urgent issue to avoid any delay in its resolution. Even though 235 days have passed since the Court granted class certification and only 107 days remain before expiration of the December 31, 2022 deadline to complete merits fact discovery, Houlihan Lawrence has yet to produce a single document from the ten custodians designated by Plaintiffs in accordance with the 17th and 18th R&Rs. Even worse, on Tuesday, Houlihan Lawrence refused even to begin its custodial collection until Plaintiffs agree to nearly three-dozen modifications of their search terms and to Houlihan Lawrence’s use of a separate Technologically Assisted Review (“TAR”) process to further cull the universe of documents to be manually reviewed from the document set already substantially narrowed by Plaintiffs’ search terms. In other words, Houlihan Lawrence has predictably manufactured another round of frivolous disputes to plunge the case back into the procedural morass that previously stalled merits discovery for nearly eight months. Plaintiffs should neither have to surrender the hard-earned benefits of the Discovery Referee’s recent rulings nor waste several more months to secure them for a second time. BOSTON LONDON LOS ANGELES NEW YORK SAN DIEGO SAN FRANCISCO WASHINGTON MINTZ, LEVIN, COHN, FERRIS, GLOVSKY AND POPEO, P.C. FILED: WESTCHESTER COUNTY CLERK 11/23/2022 03:15 PM INDEX NO. 60767/2018 NYSCEF DOC. NO. 1478 RECEIVED NYSCEF: 11/23/2022 MINTZ Mr. William P. Harrington September 16, 2022 Page 2 The 16th R&R recognized that this case “involves issues of significant public interest,”1 a fact recently underscored by the third whistleblower to now come forward,2 and the Discovery Referee therefore put Houlihan Lawrence on notice to “proceed with the expectation that there will not be any extraordinary delay of this litigation or substantial relief from existing discovery deadlines.”3 Yet Houlihan Lawrence continues to flaunt that Order, confident that it will forever enjoy the presumption of good faith that the Discovery Referee has generously afforded all parties. The Discovery Referee must fulfill the commitment not to permit “dilatory tactics”4 and to “holding the Dec. 31 deadline for the substantial completion of discovery”5 by ordering Houlihan Lawrence to produce every non-privileged document that “hits” on Plaintiffs’ search terms within 14 days. 1. Search term modifications After the Court denied Houlihan Lawrence’s appeal of the 17th R&R,6 on July 29, 2022, Houlihan Lawrence conceded confirmation of the 18th R&R, which rejected its parallel motion to reconsider the 17th R&R.7 With the parties’ disputes regarding search terms and custodians now resolved, one business day later, on August 1, 2022,8 Plaintiffs sent Houlihan Lawrence the search terms to be used for its custodial collection, as directed by the 18th R&R.9 Rather than promptly raise any issue with those search terms—or better yet, commence its production—Houlihan Lawrence sat idle for the next six weeks, as if it was free to wait until the Court took the ministerial step of formally granting 1 16th R&R (Dkt. 1356) at 5 2 Ex. 1, Anonymous Letters No. 3, dated Aug. 19, 2022 3 16th R&R (Dkt. 1356) at 6 4 Dkt. 1356 at 10, 5 Ex. 2, Email from W. Harrington to J. Vest, dated May 19, 2022 6 Dkt. 1459 7 Decision and Order (Dkt. 1461), dated Sept. 8, 2022 at 3 (recognizing “the absence of any opposition to class action plaintiffs’ motion seeking confirmation” of the 18th R&R) 8 Ex. 3, Email from J. Vest to R. MacGill, dated August 1, 2022 9 18th R&R (Dkt. 1412) at 2, n. 2 (“To avoid any confusion, plaintiffs’ counsel shall submit to HLI’s counsel and the Discovery Referee via email the modified set of search terms.”) FILED: WESTCHESTER COUNTY CLERK 11/23/2022 03:15 PM INDEX NO. 60767/2018 NYSCEF DOC. NO. 1478 RECEIVED NYSCEF: 11/23/2022 MINTZ Mr. William P. Harrington September 16, 2022 Page 3 Plaintiffs’ unopposed motion to confirm the 18th R&R. In reality, Houlihan Lawrence should have completed its production, in accordance with the 14th R&R,10 within 30 days of the expiration of its July 29, 2022 deadline to oppose confirmation of the 18th R&R. Houlihan Lawrence instead did not speak up until September 13, 2022, when it announced not only that it had slashed the number of documents subject to manual review by making 34 unilateral modifications to Plaintiffs’ search terms, but also that it next intended to utilize a TAR process to chop down that already- narrowed set of review documents still further. In other words, even though search term queries and TAR are typically alternative ways to reduce the volume of documents subject to review, eight months into merits discovery Houlihan Lawrence announced that it intended to layer one approach on top of the other. The Discovery Referee’s commitment to hold the December 31, 2022 discovery deadline put Houlihan Lawrence on notice that it needed to act with all due speed to seek any further modification of Plaintiffs’ search terms. By its deliberate and strategic inaction, Houlihan Lawrence waived any right to do so now. The Court’s delay during the summer vacation in tidying up the docket to reflect Houlihan Lawrence’s concession of the 18th R&R does not constitute good cause sufficient to justify the adjournment of the December 31, 2022 deadline that will inevitably result if the Discovery Referee entertains another round of search term litigation. Houlihan Lawrence’s failure to provide even the most basic information necessary to evaluate Plaintiffs’ search terms shows no less vividly than its six- week hiatus that it remains hell-bent on delay. Most obviously, Houlihan Lawrence fails to report the total number of unique documents captured by Plaintiffs’ search terms. Houlihan Lawrence instead implies that its review burden is equal to the sum of the search term “hit” counts, but many of Plaintiffs’ search terms will “hit” the same documents. The three search terms reported to have over 20,000 hits, for instance, would each “hit” on the New York State Disclosure Form for Buyer and Seller.11 The “hit” counts are therefore not indicative of Houlihan Lawrence’s 10 14th R&R (Dkt. 1083) at ¶ 4 (directing completion of document production within 30 days as required by CPLR § 3120) 11 Dkt. 1412 at 1-2. FILED: WESTCHESTER COUNTY CLERK 11/23/2022 03:15 PM INDEX NO. 60767/2018 NYSCEF DOC. NO. 1478 RECEIVED NYSCEF: 11/23/2022 MINTZ Mr. William P. Harrington September 16, 2022 Page 4 review burden because Houlihan Lawrence admits that it can de-duplicate the collection before starting its review.12 Houlihan Lawrence’s failure even to provide “hit” counts for its modified search terms is no less conspicuous. Do Houlihan Lawrence’s modifications reduce the “hits” by 25%? 50%? 75%? Has Houlihan Lawrence done any systematic testing of its modified search terms to determine whether they leave behind significant numbers of responsive documents captured by Plaintiffs’ search terms? Houlihan Lawrence does not provide this obviously critical information either because it undermines Houlihan Lawrence’s position, to make Plaintiffs waste time fighting for it, or for both reasons. Whatever the case, Houlihan Lawrence should no longer get more than one opportunity to carry its burden, and its failure to volunteer this information—especially after an inexcusable six-week delay—is grounds enough to reject the modifications. What little information Houlihan Lawrence does provide does nothing to undermine the reasonableness of Plaintiffs’ search terms. Even those search terms that purportedly returned 20,000 “hits” would not impose an unreasonable review burden on Houlihan Lawrence given the obvious relevance of the documents captured by those terms and the significant public importance and monetary stakes of this litigation.13 Allen v. Tertle Operations LLC, 70 Misc.3d 934, 949 (Westchester Cnty. Dec. 17, 2020) (“[I]f a case has the potential for broad public impact, then public policy weighs heavily in favor of permitting extensive discovery.”) (quoting Zubulake v. UBS Warburg LLC, 217 F.R.D. 309, 321). Indeed, an average of 2,000 documents per custodian relating to dual agency and agency disclosure is neither surprising nor on its face unduly burdensome. Indeed, Houlihan Lawrence provides no reason to believe that a significant percentage of those documents are non-responsive. As courts have recognized, “the large percentage of documents collected by the plaintiffs’ search terms, standing alone, is not meaningful.” In re Diisocyanates Antitrust Litig., 2021 U.S. Dist. LEXIS 181388 at *31-32. “[T]hat figure may simply indicate that most of the emails actually bear some relevance, or at least include language captured by reasonable 12 Ex. 4, Letter from R. MacGill to J. Vest, Sept. 13, 2022 at 4 (“Beginning with the searched, date limited, deduped, and threaded set of documents, we will review a statute sample of documents”) (emphasis added) 13 See Ex. 4, Letter from R. MacGill to J. Vest, Sept. 13, 2022 at 2 (reporting cumulative hit counts for the disputed search terms) FILED: WESTCHESTER COUNTY CLERK 11/23/2022 03:15 PM INDEX NO. 60767/2018 NYSCEF DOC. NO. 1478 RECEIVED NYSCEF: 11/23/2022 MINTZ Mr. William P. Harrington September 16, 2022 Page 5 search terms. Id. at *31-32 (quoting In re Fannie Mae Sec. Litig., 552 F.3d 814, 821 (D.C. Civ. 2009). As for its modified search terms, Houlihan Lawrence did not design them to weed out non-responsive documents but to conceal relevant ones. Take the first modification for example: Houlihan Lawrence narrows “agen* w/3 disclos*” with the Boolean operator AND NOT “new york state disclosure”.14 That modification would exclude every communication between sales agents and their clients about the “New York State Disclosure Form for Buyer and Seller” (the “Form”)—even though whether and to what extent Houlihan Lawrence’s sales agents explained dual agency when sending clients the Form is one of the central issues under investigation. Plaintiffs are especially interested to see what some of the most successful and experienced sales agents said (or did not say) when sending clients the Form given Houlihan Lawrence’s intent to call 100 sales agents at trial to testify about their agency disclosure in 4,000 transactions. Houlihan Lawrence cannot be taken seriously when it puts forward modified search terms that defeat the very purpose of conducting the search in the first place. As damning as the foregoing conduct may be, nothing better illustrates Houlihan Lawrence’s contempt of court than its brazen disregard of the 18th R&R, which expressly directed Houlihan Lawrence to use “the modified search terms set forth in the June 30, 2022 email of [P]laintiffs attorney, Jeremy Vest, Esq.” for its custodial collection.15 As reported in the 18th R&R and confirmed by Plaintiffs on August 1, 2022,16 those search terms included (1) “agen* w/5 disclos*” and (2) “‘in house’ w/5 sale*” and “‘in-house’ w/5 sale*”. However, in reporting “hit” counts for what it says are Plaintiffs’ search terms, Houlihan Lawrence unilaterally shrinks the proximity limiter to w/3, and therefore reports “hit” counts only for (1) “agen* w/3 disclos*” and (2) “‘in house’ w/3 sale*” and “‘in-house’ w/3 sale*”. Houlihan Lawrence’s sly assertion in a footnote that “[w]e have and will continue to implement all prior concessions and retractions that you have made to the search terms”17 shows that it did not make a mistake—it willfully disobeyed what the Court’s confirmation of the 18th R&R makes a Court Order. As the 14 Id. at 2 15 18th R&R (Dkt. 1412) at 1; see also Ex. 5, Email from J. Vest to W. Harrington, dated June 30, 2022 16 Ex. 3, Email from J. Vest to R. MacGill, dated Aug. 1, 2022 17 Ex. 4, Letter from R. MacGill to J. Vest, dated Sept. 13, 2022 at 3, n. 3 FILED: WESTCHESTER COUNTY CLERK 11/23/2022 03:15 PM INDEX NO. 60767/2018 NYSCEF DOC. NO. 1478 RECEIVED NYSCEF: 11/23/2022 MINTZ Mr. William P. Harrington September 16, 2022 Page 6 Discovery Referee will recall, in the run-up to the 18th R&R, Plaintiffs twice agreed to reduce the proximity limiter for the above-referenced search terms (first from w/10 to w/5, then to w/3) to avoid the delay caused by continued litigation.18 However, after Houlihan Lawrence failed to reciprocate Plaintiffs’ attempt to compromise,19 the 18th R&R declined to accept Plaintiffs’ second reduction, ordering Houlihan Lawrence instead to use the w/5 proximity limiter.20 Houlihan Lawrence’s footnote shows that it knows its defiance of that clear and unambiguous ruling is so outrageous that it needed to feign to have come clean about it in case Plaintiffs spotted it among Houlihan Lawrence’s many other sleights of hand. All of this still only scratches the surface of the problems with Houlihan Lawrence’s latest search term modifications, and Houlihan Lawrence is so cocksure that it is already promising that “this is only the latest round of search term narrowing.”21 The 18th R&R recognized that Plaintiffs’ search terms “are designed to generate the appropriate and reasonable discovery to which plaintiffs are entitled” and already reflect a “substantial compromise” by Plaintiffs to end this dispute.22 The Discovery Referee must stand by that ruling. 2. TAR process The only thing more risible than Houlihan Lawrence’s attempt to litigate its belated search term modifications is its newfound intent to layer a TAR process that it unilaterally developed upon on the already narrowed search terms document set. TAR is a process whereby human reviewers and a computer engage in an interactive process to “train” the computer how to identify responsive documents based on properties and characteristics beyond simple search terms. Because TAR is an alternative way to identify responsive documents that does not rely on keyword queries, it obviates the need to select and haggle over search terms. It was thus incumbent on Houlihan Lawrence to select its preferred method for locating 18 See Ex. 6, Email from J. Vest to W. Harrington, dated July 6, 2022 and Ex. 7, Email from J. Vest to W. Harrington, dated July 11, 2022 19 See Ex. 8, Letter from R. MacGill to W. Harrington, dated July 8, 2022 20 18th R&R (Dkt. 1412) at 1 21 Ex. 4, Letter from R. MacGill to J. Vest, dated Sept. 13, 2022 at 1; see also id. at 4 (“As noted, we reserve the right to continue this narrowing process, including for the terms not challenged today.”) 22 18th R&R (Dkt. 1412) at 2 FILED: WESTCHESTER COUNTY CLERK 11/23/2022 03:15 PM INDEX NO. 60767/2018 NYSCEF DOC. NO. 1478 RECEIVED NYSCEF: 11/23/2022 MINTZ Mr. William P. Harrington September 16, 2022 Page 7 responsive documents—search terms or TAR—before it dragged Plaintiffs and the Discovery Referee through months of search term litigation. In re Valsartan, Losartan, & Irbesartan Prods. Liab., Litig., 337 F.R.D. 610, 621 (D.N.J. Dec. 2, 2020) (“The time to meet and confer with plaintiffs [regarding TAR] was before the parties and the Court proceeded under the reasonable assumption that a manual search term review would be done, and not on the eve of the of the first rolling production.”). The discussions that preceded the 17th and 18th R&Rs would have looked much different if HL had not led Plaintiffs and the Discovery Referee to believe that it would conduct a “linear review” of the search term results.23 Plaintiffs would have insisted that Houlihan Lawrence choose one collection method or the other. In the highly unlikely event the Discovery Referee authorized use of both methods, Plaintiffs never would have made a “substantial compromise” and agreed to narrow their search terms, since the number of “hits” generated by their search terms would have been irrelevant if Houlihan Lawrence was not going to manually review those documents but instead cull them further by TAR. Courts have recognized for these reasons that a producing party must disclose its intention to use TAR “at the earliest possible time.” In re Valsartan, Losartan, & Irbesartan Prods. Liab. Litig., 337 F.R.D. 610, 618 (D.N.J. Dec. 2, 2020). In In re Valsartan, after the parties spent “more or less a year” negotiating search terms and only weeks before their first rolling production was due, the producing party disclosed for the first time its intent to use TAR. The court agreed with the requesting party (whom it described as “apoplectic”) that the TAR disclosure was untimely: The Court agrees with plaintiffs that, ‘Teva’s intention to use [TAR] should have been disclosed at the earliest possible time.’ Contrary to Teva’s position, this occurred before Teva subjectively decided to use [TAR]. Since the backbone of TAR’s use is transparency and collaboration, Teva should have disclosed to plaintiffs in the fall that it might use TAR since at that time it was objectively reasonable and foreseeable that 23 See, e.g., Ex. 9, Letter from R. MacGill to W. Harrington, June 20, 2022 at 3 (complaining that one of Plaintiffs’ search terms “will require the linear review of more than 30,000 document for just two custodians.”) (emphasis in original); Ex. 10, W. Harrington Hr’g Tr. (June 28, 2022) at 21:2-5 (‘it’s hard for us to predict how many hours and how many months it would take us to do a linear review.”) FILED: WESTCHESTER COUNTY CLERK 11/23/2022 03:15 PM INDEX NO. 60767/2018 NYSCEF DOC. NO. 1478 RECEIVED NYSCEF: 11/23/2022 MINTZ Mr. William P. Harrington September 16, 2022 Page 8 Teva might use TAR in the future. This should have enabled the parties to fairly collaborate on the protocol to use. ‘Electronic discovery requires cooperation between opposing counsel and transparency in all aspects of the preservation and production of ESI.’ Early disclosure would have likely prevented the parties from going down the rabbit hole of laborious search term negotiations. As is evident by what happened here, ‘the failure to engage in a collaborative search and sampling strategy can often yield discovery dysfunction.’ In re Valsartan, 337 F.R.D. at 618 (internal citations omitted). Similarly, here, given (1) Houlihan Lawrence faces hundreds of millions of dollars in potential liability, (2) the volume of material sought by Plaintiffs, and (3) Houlihan Lawrence’s retention of a “sophisticated and well-regarded third-party ESI vendor” like Consilio,24 HL knew from the outset of merits discovery that it might use TAR. The 14th R&R required the parties to “meet and confer and attempt to resolve disputes regarding document discovery requests and production by March 28, 2022,”25 yet Houlihan Lawrence did not disclose until September 13, 2022 that it might use TAR to locate responsive documents. As in Valsartan, HL negotiated a search term protocol and now impermissibly seeks to “change horses midstream.” In re Valsartan, 337 F.R.D. at 622 (“The time for Teva to make its TAR disclosure was before the ‘die was cast,’ not afterwards.”). In addition to failing to make a timely TAR disclosure, Houlihan Lawrence also violated its duty to meet and confer with Plaintiffs to develop the TAR protocol. “A long line of cases holds that TAR requires ‘an unprecedented degree of transparency and cooperation among counsel in the review and production of ESI responsive to discovery requests.’” In re Valsartan, 337 F.R.D. 610, 622 (D.N.J. 2020) (emphasis added); see also Progressive Cas. Ins. Co., 2014 U.S. Dist. LEXIS 69166 at *28-29 (“The cases which have approved technology assisted review of ESI have required an unprecedented degree of transparency and cooperation among counsel in the review and production of ESI responsive to discovery requests.”). It is far too late for the parties to start working now to put together an appropriate and effective TAR protocol, especially given that Plaintiffs’ TAR specialists have already confirmed, based just on the limited information provided by Houlihan Lawrence to date, that its TAR protocol is fatally defective. Even if time were no 24 15th R&R (Dkt. 1307) at 2 25 14th R&R (Dkt. 1083) at ¶ 2 (emphasis in original) FILED: WESTCHESTER COUNTY CLERK 11/23/2022 03:15 PM INDEX NO. 60767/2018 NYSCEF DOC. NO. 1478 RECEIVED NYSCEF: 11/23/2022 MINTZ Mr. William P. Harrington September 16, 2022 Page 9 issue, Houlihan Lawrence has more than proven itself incapable of providing the “unprecedented degree of transparency and cooperation” necessary to work with Plaintiffs to develop a valid TAR protocol. 3. The solution As recently as June 10, 2022, the Discovery Referee affirmed, “[t]he December 31, 2022 deadline was not arbitrary when initially set, nor arbitrary now.”26 To fulfill that pledge, the Discovery Referee must order Houlihan Lawrence to produce within 14 days all non-privileged documents in the custodial files of the custodians designated by Plaintiffs that “hit” on the search terms that Plaintiffs sent to Houlihan Lawrence on August 1, 2022. Rejecting re-litigation of the ESI protocol and bypassing the inevitable disputes that will result from Houlihan Lawrence’s manual review for responsiveness is the only way to break the logjam that threatens to delay this case indefinitely. Indeed, in addition to already promising a third round of search term litigation, Houlihan Lawrence foreshadows disputes about the adequacy of its future production by concluding its September 13 letter with the coy reminder that it will conduct its responsiveness review in accordance with undisclosed “legal parameters” that it will discuss only at some unspecified “later time if needed.”27 The Discovery Referee need only remember Houlihan Lawrence’s past discovery misconduct to foresee the significant production disputes on the horizon: Houlihan Lawrence did not identify Arlt as a person with knowledge in its sworn interrogatory responses even though it knew he was the in- house “guru” who had drafted its training and policy documents; Houlihan Lawrence refused to produce Arlt’s documents—even after Plaintiffs uncovered his central role—until ordered to do so on the eve of class certification; and Houlihan Lawrence withheld In-House Bonus and Dalton documents that were “found to be responsive by an in camera review.”28 26 16th R&R (Dkt. 1356) at 5 27 Ex. 4, Letter from R. MacGill to J. Vest, dated Sept. 13, 2022 28 12th R&R (Dkt. 677) at 3 (granted extension “subject to the continuation of ongoing rolling production of the Transaction Files”) FILED: WESTCHESTER COUNTY CLERK 11/23/2022 03:15 PM INDEX NO. 60767/2018 NYSCEF DOC. NO. 1478 RECEIVED NYSCEF: 11/23/2022 MINTZ Mr. William P. Harrington September 16, 2022 Page 10 A more recent example proves the same point that the Discovery Referee cannot trust Houlihan Lawrence to do the right thing. The Discovery Referee generously extended Houlihan Lawrence’s deadline to produce its transaction files to August 12, 2022, on the condition that it make a rolling production on two-week intervals to ameliorate the prejudice to Plaintiffs due to the delay.29 Houlihan Lawrence complied at best only in the most superficial sense—it produced only approximately 2,700 transaction files between May 6, 2022 and July 15, 2022, but then produced 3,868 transaction files on July 28, 2022 and another 5,526 on August 12, 2022. In other words, it produced more than three times the number of transaction files in the last two weeks of the production period than it had produced in the previous three months combined. It did so to further delay issuance of class notice (adversely affecting the rights and interest of all 10,000 or so Class members) by frustrating Plaintiffs’ ability to timely identify the arbitration signatories who the Court has now excluded from the Class. Houlihan Lawrence thus betrayed the spirit if not the letter of the 15th R&R, making a mockery of the Discovery Referee’s careful balancing of the parties’ interests. Houlihan Lawrence’s conduct in this and so many other regards teaches that it will exploit any wiggle room in the Discovery Referee’s rulings to take whatever relief it could not earn. The Discovery Referee has already thrice ordered Houlihan Lawrence to produce documents without a manual review, correctly recognizing that the Confidentiality Stipulation provides Houlihan Lawrence ample protection from the improper use of non-responsive documents.30 Houlihan Lawrence ratified those decisions by not asking the Court to reject them (as it did with the 17th R&R), and in fact with respect to the Dalton documents, it voluntarily complied even though the Discovery Referee gave it the choice of an in camera review instead.31 The 29 15th R&R (Dkt. 1307) at 8 30 See 7th R&R (Dkt. 627) at 2-3 (ordering production of the “balance of the In- House Bonus emails” without a further manual review for responsiveness); id. at 5 (ordering production of Dalton documents that hit on Plaintiffs’ search terms without a further manual review); 12th R&R (Dkt. 677) at 3 (ordering production of Arlt documents that “hit” on Plaintiffs’ search terms without a further manual review because “[t]he Standing Confidentiality Order addresses any concern of HLI regarding the inadvertent production of non-responsive confidential information.”). 31 See 7th R&R (Dkt. 627) at 7 (“[I]f the foregoing does not alleviate defendant’s concerns regarding privilege or confidentiality, it has the option of submitting the Dalton documents to me for in camera review which I would conduct using the same protocol as used for the In-House Bonus emails.”) FILED: WESTCHESTER COUNTY CLERK 11/23/2022 03:15 PM INDEX NO. 60767/2018 NYSCEF DOC. NO. 1478 RECEIVED NYSCEF: 11/23/2022 MINTZ Mr. William P. Harrington September 16, 2022 Page 11 Discovery Referee’s broad sealing order earlier this year affords Houlihan Lawrence even greater protection now from disclosure of its confidential information.32 The Discovery Referee is not alone in ordering production of all “hit” documents without a manual review. In Progressive Cas. Ins. Co. v. Delaney, 2014 U.S. Dist. LEXIS 69166 (D. Nev. July 18, 2014), for instance, the court denied another producing party’s untimely disclosure of its intention to use TAR, and instead ordered them to produce all “hit” documents within 14 days without a manual review. The Progressive court reasoned that dispensing with a responsiveness review was, as here, necessary to “allow discovery, which has been stalled for many months while this dispute is pending, to move forward, and reduce future disputes about [the producing party’s] production.” Id. at *32. Plaintiffs are the only party who will suffer if Houlihan Lawrence is correct that Plaintiffs’ search terms are overbroad. In that case, Houlihan Lawrence’s production of every non-privileged document that “hits” on Plaintiffs’ search terms will bury Plaintiffs in paper that they will waste precious time sorting through during the waning discovery period. Id. at *32 (recognizing that production of all “hit” documents “will shift the cost of review” to the requesting party). Houlihan Lawrence, on the other hand, can use its own proposed search terms and TAR process—which it says can efficiently identify responsive documents—to spare itself that same burden. Houlihan Lawrence does not need to review the entire search results to locate potentially privileged documents. Houlihan Lawrence’s pre-class certification categorical privilege log shows that it knows the names of those with whom it engaged in privileged communications, and its retention of Consilio means that it has the technological capability and sophistication to sort the search results for communications involving or referencing them. In the event a privileged document slips through, “HLI successfully argued for a claw-back provision in the Confidentiality Order which further enhances the protections against inadvertent disclosure of confidential information.”33 32 See 13th R&R (Dkt. 1052) (sealing several categories of information) and (Amended) 13th R&R (Dkt. 1075) (same) 33 12th R&R (Dkt. 677) at 3-4 FILED: WESTCHESTER COUNTY CLERK 11/23/2022 03:15 PM INDEX NO. 60767/2018 NYSCEF DOC. NO. 1478 RECEIVED NYSCEF: 11/23/2022 MINTZ Mr. William P. Harrington September 16, 2022 Page 12 * * * Plaintiffs take seriously the Discovery Referee’s observation that hyperbolic accusations of “bad faith tactics” are “neither persuasive nor helpful,”34 but “[t]he public pays a price when litigants use up the courts’ time with gamesmanship and repetition.” Victorinox AG v. B&F Sys., 2015 U.S. Dist. LEXIS 169908 at *22 (S.D.N.Y. Dec. 12, 2015). The legal profession cannot mince words or otherwise tolerate that type of conduct if it is going to continue to say with a straight face, “[l]itigation is not a game. It is the time-honored method of seeking truth, finding the truth, and doing justice.” HM Elec., Inc. v. R.F. Techs., Inc., 2015 U.S. Dist. LEXIS 104100 (S.D. Cal. Aug. 7, 2015) (quoting Haeger v. Goodyear Tire & Rubber Co., 793 F.3d 1122, 1126, n. 1 (9th Cir. 2015). Plaintiffs therefore have a duty to point out that Houlihan Lawrence’s conduct in this case is a repetition of the kind of “inappropriate litigation behavior” recently called out by a federal court in another case first-chaired by its counsel. See AgroFresh Inc. v. Essentiv LLC, et al., 2020 U.S. Dist. LEXIS 222898 at *80-83 (D. Del. Nov. 30, 2020) (admonishing counsel for unprofessional conduct that “contributed substantially to the caustic nature” of the litigation). That said, while Houlihan Lawrence’s discovery misconduct supports ordering production of all “hit” documents without a manual review, the Discovery Referee does not need to find fault with Houlihan Lawrence to grant that relief. Instead, the Discovery Referee only has to recognize that advancing this important consumer protection class action to trial best serves the interests of justice. For the reasons set forth above, the Discovery Referee should reject Houlihan Lawrence’s eleventh-hour rewrite of the ESI protocol developed over the last eight months. Regards, Jeremy Vest 34 Dkt. 1355 at 1, n. 2