Preview
FILED: WESTCHESTER COUNTY CLERK 12/08/2022 03:52 PM INDEX NO. 60767/2018
NYSCEF DOC. NO. 1495 RECEIVED NYSCEF: 12/08/2022
EXHIBIT 3
FILED: WESTCHESTER COUNTY CLERK 12/08/2022 03:52 PM INDEX NO. 60767/2018
NYSCEF DOC. NO. 1495 RECEIVED NYSCEF: 12/08/2022
From: Robert MacGill Robert MacGill
Mail received time: Tue, 22 Feb 2022 16:19:10
Sent: Tue, 22 Feb 2022 21:16:10
To: William Ohlemeyer Vest, Jeremy William Ohlemeyer; Vest, Jeremy
Cc: William P. Harrington Matthew T. Ciulla Alfred E. Donnellan Alex Pantos Alfred E. Donnellan
Subject: Letter of February 22 to Jeremy Vest and William Ohlemeyer
Importance: Normal
Sensitivity: None
Attachments:
ATT00001.htm; Proposed CMP of February 22.pdf; Letter of February 22.pdf; ATT00002.htm;
Jeremy and Bill,
Enclosed is our letter and its enclosure of today which follows up on our conference of today.
Best regards.
Robert D. MacGill
MacGill PC
Inland Building
156 E. Market St.
Suite 1200
Indianapolis, IN 46204
W: 317-961-5085
M: 317-442-3825
Robert.MacGill@MacGillLaw.com
www.MacGillLaw.com
NOTICE: This email and any attachments are for the exclusive, confidential use of the intended recipient. We do not waive attorney
client or work product privilege by the transmission of this message. If you are not the intended recipient, please: notify us
immediately, delete this message, and refrain from tak ing any action in reliance on this message.
FILED: WESTCHESTER COUNTY CLERK 12/08/2022 03:52 PM INDEX NO. 60767/2018
NYSCEF DOC. NO. 1495 RECEIVED NYSCEF: 12/08/2022
156 E. Market Street
Suite 1200
Indianapolis, IN 46204
www.MacGillLaw.com
Robert D. MacGill
317.906.5085
Robert.MacGill@MacGillLaw.com
Via Email
February 22, 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: Proposed Case Management Order
Dear Counsel,
Please find attached a proposed scheduling order incorporating the case milestone
deadlines we discussed during the February 18, 2022 teleconference with Mr. Harrington.
We propose a call on Thursday, February 24 at 10:00 a.m. with each of you participating
to discuss your thoughts on the proposed order ahead of the March 1 hearing before Justice
Jamieson. We respectfully remind you that Mr. Harrington instructed us many times to resume
the meet and confer process among counsel.
Best regards.
Very truly yours,
Robert D. MacGill
cc: William Harrington, Matthew Ciulla, Alfred Donnellan, Nelida Lara, Alexander Pantos
FILED: WESTCHESTER COUNTY CLERK 12/08/2022 03:52 PM INDEX NO. 60767/2018
NYSCEF DOC. NO. 1495 RECEIVED NYSCEF: 12/08/2022
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. )
)
FOURTEENTH REPORT AND RECOMMENDATION
OF DISCOVERY REFEREE
Based on proceedings to date and a conference with the parties on February 18, 2022, the
following recommendations are made for case management proceedings in the merits phase in
this action:
Potential Class Member Identification
1. Houlihan Lawrence shall produce electronic data or a list to identify potential class
members in this case within thirty (30) days following confirmation of this Report,
using the following parameters1:
a. The data or list should include, to the extent reasonably available: (1) the names
of potential class members; (2) last known mailing addresses; and (3) last known
email addresses.2
1
Nothing in this document shall be construed as authorizing contact with class members.
2
The Referee takes no position on the exact format of this data or list. Houlihan Lawrence should produce the data
or list in a reasonable format.
1
FILED: WESTCHESTER COUNTY CLERK 12/08/2022 03:52 PM INDEX NO. 60767/2018
NYSCEF DOC. NO. 1495 RECEIVED NYSCEF: 12/08/2022
b. The data or list shall be derived from information stored in the ordinary course of
business, and Houlihan Lawrence shall have no obligation to “encode” i.e., add,
data that is not already present in the ordinary course of business.
c. The data or list may be narrowed by using: (A) Plaintiffs’ Class Certification
Motion Exhibit 90 and Exhibit 153; and/or (B) the current Class Definition,
NYSCEF 1072 at 19-20.
d. By supplying this data or list, Houlihan Lawrence does not admit that the persons
identified are appropriate members of the class, and Houlihan Lawrence reserves
all rights to move to remove individuals from the class and/or modify the class
definition. Further, Houlihan Lawrence reaffirms and incorporates by reference
the Court’s so-ordered Stipulation on Arbitration, NYSCEF 368.
e. Plaintiffs have agreed to update the mailing addresses within the Potential Class
Member Data. Plaintiffs shall produce any such updated address list(s) to
Houlihan Lawrence upon their creation.
Document Discovery
2. Document discovery demands by either party directed to: (1) Houlihan Lawrence, or (2)
Pamela Goldstein, Ellyn and Tony Berk, as Administrators of the Estate of Winifred
Berk, and/or Paul Benjamin (“Class Representatives”) shall be served by March 21,
2022.
a. Plaintiffs, if they decide to pursue email or other ESI discovery from Houlihan
Lawrence on merits issues, shall:
2
FILED: WESTCHESTER COUNTY CLERK 12/08/2022 03:52 PM INDEX NO. 60767/2018
NYSCEF DOC. NO. 1495 RECEIVED NYSCEF: 12/08/2022
i. Specify the email custodians or other repository(ies) of information
requested to be searched, which number and identity shall be reasonable in
light of discovery to date;
ii. Specify the search terms requested to be run, which number shall be
reasonable in light of discovery to date, and each search term shall
encompass only one topic and shall be reasonable in length and topic and
shall not be overbroad;
b. Houlihan Lawrence shall produce merits related email or ESI promptly after
completing its review of requested documents for responsiveness, relevance, and
privilege.
c. The Discovery Referee shall adjudicate any dispute with respect to the discovery
demands.
3. The parties shall meet and confer and attempt to resolve disputes regarding document
discovery requests and production by March 28, 2022.
4. The production date for documents to be produced pursuant to the process described
above shall be determined after further reports by the parties on discovery progress
during March 2022. The Referee will conduct a hearing on April 8, 2022 to set a date for
the substantial completion of document production.
Deposition Discovery
5. The parties shall meet and confer and attempt to resolve disputes regarding deposition
discovery procedures and deadlines by March 28, 2022.
6. The Referee will conduct a hearing on April 8, 2022 to set a date for the substantial
completion of deposition discovery.
3
FILED: WESTCHESTER COUNTY CLERK 12/08/2022 03:52 PM INDEX NO. 60767/2018
NYSCEF DOC. NO. 1495 RECEIVED NYSCEF: 12/08/2022
Expert Discovery
7. The parties shall conduct expert disclosure and discovery pursuant to Commercial
Division Rule 13.
8. If Plaintiffs intend to use Mr. Cusack or his Affidavit during this phase of the
proceedings, Plaintiffs must comply with Rule 13.
Motion to Modify the Class to Exclude Buyer Class Members3
9. Houlihan Lawrence shall move, pursuant to CPLR § 902, to amend the class definition
to exclude buyer class members by May 3, 2022.
10. Plaintiffs shall respond in opposition to Houlihan Lawrence’s Motion to Exclude Buyer
Class Members by May 24, 2022.
11. Houlihan Lawrence shall reply in further support of its Motion to Exclude Buyer Class
Members by June 2, 2022.
Arbitration Signatories and Motion to Compel Arbitration
12. Houlihan Lawrence shall produce to Plaintiffs electronic data or documentation
identifying arbitration signatories within the current class definition by June 14, 2022.
13. Houlihan Lawrence shall move to compel arbitration by June 21, 2022.
14. Plaintiffs shall respond in opposition to Houlihan Lawrence’s Motion to Compel
Arbitration by July 12, 2022.
15. Houlihan Lawrence shall reply in further support of its Motion to Compel Arbitration by
July 22, 2022.
3
Houlihan Lawrence reserves its right to submit additional motions to modify the class at any time before the Court
issues a decision on the merits pursuant to CPLR § 902.
4
FILED: WESTCHESTER COUNTY CLERK 12/08/2022 03:52 PM INDEX NO. 60767/2018
NYSCEF DOC. NO. 1495 RECEIVED NYSCEF: 12/08/2022
Proposed Class Member Notification and Form of Notice
16. Within fourteen (14) days following confirmation of this Report, the parties shall
begin to meet and confer to discuss issues regarding class notification.
17. The parties shall complete the meet and confer process within sixty (60) days following
confirmation of this Report.
18. Following the meet and confer process, the Discovery Referee shall hold a status
conference to resolve outstanding issues regarding class notification discovery.
19. Plaintiffs shall move to Authorize their Proposed Class Notice by June 21, 2022.
20. Houlihan Lawrence shall respond in opposition to Plaintiffs’ Motion to Authorize
Proposed Class Notice by August 22, 2022.
21. Plaintiffs shall reply in support of their motion to Authorize Proposed Class Notice by
September 21, 2022.
Recurring Status Conference to Address Ongoing Discovery Issues
22. The Discovery Referee shall hold a status conference on discovery and related topics
every three weeks, beginning on March 11, 2022.
Other Deadlines
23. The Discovery Referee shall hold a hearing promptly after the Court’s decision on the
above motions to recommend the entry of the remaining case deadlines, including the
close of fact discovery.
CONCLUSION
I respectfully recommend that the Court adopt the foregoing as a scheduling
order.
5
FILED: WESTCHESTER COUNTY CLERK 12/08/2022 03:52 PM INDEX NO. 60767/2018
NYSCEF DOC. NO. 1495 RECEIVED NYSCEF: 12/08/2022
Dated: White Plains, New York __________________
__________, 2022 William P. Harrington
Discovery Referee
6
Preview
FILED: WESTCHESTER COUNTY CLERK 12/08/2022 03:52 PM INDEX NO. 60767/2018 NYSCEF DOC. NO. 1495 RECEIVED NYSCEF: 12/08/2022 EXHIBIT 3 FILED: WESTCHESTER COUNTY CLERK 12/08/2022 03:52 PM INDEX NO. 60767/2018 NYSCEF DOC. NO. 1495 RECEIVED NYSCEF: 12/08/2022 From: Robert MacGill Robert MacGill Mail received time: Tue, 22 Feb 2022 16:19:10 Sent: Tue, 22 Feb 2022 21:16:10 To: William Ohlemeyer Vest, Jeremy William Ohlemeyer; Vest, Jeremy Cc: William P. Harrington Matthew T. Ciulla Alfred E. Donnellan Alex Pantos Alfred E. Donnellan Subject: Letter of February 22 to Jeremy Vest and William Ohlemeyer Importance: Normal Sensitivity: None Attachments: ATT00001.htm; Proposed CMP of February 22.pdf; Letter of February 22.pdf; ATT00002.htm; Jeremy and Bill, Enclosed is our letter and its enclosure of today which follows up on our conference of today. Best regards. Robert D. MacGill MacGill PC Inland Building 156 E. Market St. Suite 1200 Indianapolis, IN 46204 W: 317-961-5085 M: 317-442-3825 Robert.MacGill@MacGillLaw.com www.MacGillLaw.com NOTICE: This email and any attachments are for the exclusive, confidential use of the intended recipient. We do not waive attorney client or work product privilege by the transmission of this message. If you are not the intended recipient, please: notify us immediately, delete this message, and refrain from tak ing any action in reliance on this message. FILED: WESTCHESTER COUNTY CLERK 12/08/2022 03:52 PM INDEX NO. 60767/2018 NYSCEF DOC. NO. 1495 RECEIVED NYSCEF: 12/08/2022 156 E. Market Street Suite 1200 Indianapolis, IN 46204 www.MacGillLaw.com Robert D. MacGill 317.906.5085 Robert.MacGill@MacGillLaw.com Via Email February 22, 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: Proposed Case Management Order Dear Counsel, Please find attached a proposed scheduling order incorporating the case milestone deadlines we discussed during the February 18, 2022 teleconference with Mr. Harrington. We propose a call on Thursday, February 24 at 10:00 a.m. with each of you participating to discuss your thoughts on the proposed order ahead of the March 1 hearing before Justice Jamieson. We respectfully remind you that Mr. Harrington instructed us many times to resume the meet and confer process among counsel. Best regards. Very truly yours, Robert D. MacGill cc: William Harrington, Matthew Ciulla, Alfred Donnellan, Nelida Lara, Alexander Pantos FILED: WESTCHESTER COUNTY CLERK 12/08/2022 03:52 PM INDEX NO. 60767/2018 NYSCEF DOC. NO. 1495 RECEIVED NYSCEF: 12/08/2022 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. ) ) FOURTEENTH REPORT AND RECOMMENDATION OF DISCOVERY REFEREE Based on proceedings to date and a conference with the parties on February 18, 2022, the following recommendations are made for case management proceedings in the merits phase in this action: Potential Class Member Identification 1. Houlihan Lawrence shall produce electronic data or a list to identify potential class members in this case within thirty (30) days following confirmation of this Report, using the following parameters1: a. The data or list should include, to the extent reasonably available: (1) the names of potential class members; (2) last known mailing addresses; and (3) last known email addresses.2 1 Nothing in this document shall be construed as authorizing contact with class members. 2 The Referee takes no position on the exact format of this data or list. Houlihan Lawrence should produce the data or list in a reasonable format. 1 FILED: WESTCHESTER COUNTY CLERK 12/08/2022 03:52 PM INDEX NO. 60767/2018 NYSCEF DOC. NO. 1495 RECEIVED NYSCEF: 12/08/2022 b. The data or list shall be derived from information stored in the ordinary course of business, and Houlihan Lawrence shall have no obligation to “encode” i.e., add, data that is not already present in the ordinary course of business. c. The data or list may be narrowed by using: (A) Plaintiffs’ Class Certification Motion Exhibit 90 and Exhibit 153; and/or (B) the current Class Definition, NYSCEF 1072 at 19-20. d. By supplying this data or list, Houlihan Lawrence does not admit that the persons identified are appropriate members of the class, and Houlihan Lawrence reserves all rights to move to remove individuals from the class and/or modify the class definition. Further, Houlihan Lawrence reaffirms and incorporates by reference the Court’s so-ordered Stipulation on Arbitration, NYSCEF 368. e. Plaintiffs have agreed to update the mailing addresses within the Potential Class Member Data. Plaintiffs shall produce any such updated address list(s) to Houlihan Lawrence upon their creation. Document Discovery 2. Document discovery demands by either party directed to: (1) Houlihan Lawrence, or (2) Pamela Goldstein, Ellyn and Tony Berk, as Administrators of the Estate of Winifred Berk, and/or Paul Benjamin (“Class Representatives”) shall be served by March 21, 2022. a. Plaintiffs, if they decide to pursue email or other ESI discovery from Houlihan Lawrence on merits issues, shall: 2 FILED: WESTCHESTER COUNTY CLERK 12/08/2022 03:52 PM INDEX NO. 60767/2018 NYSCEF DOC. NO. 1495 RECEIVED NYSCEF: 12/08/2022 i. Specify the email custodians or other repository(ies) of information requested to be searched, which number and identity shall be reasonable in light of discovery to date; ii. Specify the search terms requested to be run, which number shall be reasonable in light of discovery to date, and each search term shall encompass only one topic and shall be reasonable in length and topic and shall not be overbroad; b. Houlihan Lawrence shall produce merits related email or ESI promptly after completing its review of requested documents for responsiveness, relevance, and privilege. c. The Discovery Referee shall adjudicate any dispute with respect to the discovery demands. 3. The parties shall meet and confer and attempt to resolve disputes regarding document discovery requests and production by March 28, 2022. 4. The production date for documents to be produced pursuant to the process described above shall be determined after further reports by the parties on discovery progress during March 2022. The Referee will conduct a hearing on April 8, 2022 to set a date for the substantial completion of document production. Deposition Discovery 5. The parties shall meet and confer and attempt to resolve disputes regarding deposition discovery procedures and deadlines by March 28, 2022. 6. The Referee will conduct a hearing on April 8, 2022 to set a date for the substantial completion of deposition discovery. 3 FILED: WESTCHESTER COUNTY CLERK 12/08/2022 03:52 PM INDEX NO. 60767/2018 NYSCEF DOC. NO. 1495 RECEIVED NYSCEF: 12/08/2022 Expert Discovery 7. The parties shall conduct expert disclosure and discovery pursuant to Commercial Division Rule 13. 8. If Plaintiffs intend to use Mr. Cusack or his Affidavit during this phase of the proceedings, Plaintiffs must comply with Rule 13. Motion to Modify the Class to Exclude Buyer Class Members3 9. Houlihan Lawrence shall move, pursuant to CPLR § 902, to amend the class definition to exclude buyer class members by May 3, 2022. 10. Plaintiffs shall respond in opposition to Houlihan Lawrence’s Motion to Exclude Buyer Class Members by May 24, 2022. 11. Houlihan Lawrence shall reply in further support of its Motion to Exclude Buyer Class Members by June 2, 2022. Arbitration Signatories and Motion to Compel Arbitration 12. Houlihan Lawrence shall produce to Plaintiffs electronic data or documentation identifying arbitration signatories within the current class definition by June 14, 2022. 13. Houlihan Lawrence shall move to compel arbitration by June 21, 2022. 14. Plaintiffs shall respond in opposition to Houlihan Lawrence’s Motion to Compel Arbitration by July 12, 2022. 15. Houlihan Lawrence shall reply in further support of its Motion to Compel Arbitration by July 22, 2022. 3 Houlihan Lawrence reserves its right to submit additional motions to modify the class at any time before the Court issues a decision on the merits pursuant to CPLR § 902. 4 FILED: WESTCHESTER COUNTY CLERK 12/08/2022 03:52 PM INDEX NO. 60767/2018 NYSCEF DOC. NO. 1495 RECEIVED NYSCEF: 12/08/2022 Proposed Class Member Notification and Form of Notice 16. Within fourteen (14) days following confirmation of this Report, the parties shall begin to meet and confer to discuss issues regarding class notification. 17. The parties shall complete the meet and confer process within sixty (60) days following confirmation of this Report. 18. Following the meet and confer process, the Discovery Referee shall hold a status conference to resolve outstanding issues regarding class notification discovery. 19. Plaintiffs shall move to Authorize their Proposed Class Notice by June 21, 2022. 20. Houlihan Lawrence shall respond in opposition to Plaintiffs’ Motion to Authorize Proposed Class Notice by August 22, 2022. 21. Plaintiffs shall reply in support of their motion to Authorize Proposed Class Notice by September 21, 2022. Recurring Status Conference to Address Ongoing Discovery Issues 22. The Discovery Referee shall hold a status conference on discovery and related topics every three weeks, beginning on March 11, 2022. Other Deadlines 23. The Discovery Referee shall hold a hearing promptly after the Court’s decision on the above motions to recommend the entry of the remaining case deadlines, including the close of fact discovery. CONCLUSION I respectfully recommend that the Court adopt the foregoing as a scheduling order. 5 FILED: WESTCHESTER COUNTY CLERK 12/08/2022 03:52 PM INDEX NO. 60767/2018 NYSCEF DOC. NO. 1495 RECEIVED NYSCEF: 12/08/2022 Dated: White Plains, New York __________________ __________, 2022 William P. Harrington Discovery Referee 6