Preview
FILED: ERIE COUNTY CLERK 02/02/2022 07:45 PM INDEX NO. 804173/2020
NYSCEF DOC. NO. 42 RECEIVED NYSCEF: 02/02/2022
EXHIBIT
S
FILED: ERIE COUNTY CLERK 02/02/2022 07:45 PM INDEX NO. 804173/2020
NYSCEF DOC. NO. 42 RECEIVED NYSCEF: 02/02/2022
Mario Fadi Ayoub
From: Jeffrey D. Coren
Sent: Wednesday, January 5, 2022 10:56 AM
To: 'Richard Clack'
Subject: RE: I-Evolve v. Hickson - Discovery
Follow Up Flag: Follow up
Flag Status: Completed
Dick,
With respect to defendant’s overbroad and unreasonable demand for communications, we have gone back-and-forth
with numerous calls and emails to narrow the relevant custodians and search criteria in an attempt to resolve plaintiff’s
objections, as set forth in my December 9 letter. Unfortunately, we cannot seem to reach an agreement with this
approach.
The only claim or defense that Mr. Hickson has identified as relevant to his request for communications is I-Evolve’s
claim that Mr. Hickson was terminated for cause pursuant to the Employment Agreement. As a result, rather than
attempt to agree on custodians and search terms, I-Evolve responds to the request as follows: Subject to its objections,
I-Evolve will produce email communications related to Mr. Hickson’s termination and the allegations in paragraphs
22-30 of the Complaint, to the extent those communications have not already been produced at I-EVOLVE_000070-
000214.
With respect to the request for “back up” documentation on Mr. Hickson’s commissions, I-Evolve will produce
documents related to the “profit margin” identified in the Monthly Sales and Commission Summaries, to the extent
those records are maintained by I-Evolve in the usual course of business. We can also produce a detailed report of the
sales/charges for Mr. Hickson’s customers, as those records are maintained by I-Evolve, although you have previously
indicated that such a report is not necessary since we already produced the Monthly Sales and Commission Summaries.
Pursuant to Darryl’s request this morning for an update, please advise whether I-Evolve should proceed to produce the
documents identified above, or whether you intend to make a discovery motion.
Thanks,
Jeff
From: Richard Clack
Sent: Wednesday, December 15, 2021 2:30 PM
To: Jeffrey D. Coren
Subject: RE: I-Evolve v. Hickson - Discovery
ATTENTION EXTERNAL EMAIL: Use Caution with attachments and links!
Jeff:
Regarding I-Evolve’s production to Mr. Hickson, as I previously advised, Mr. Hickson needs all of the back-up
documentation for his monthly commission reports, not just the “sales and charges to his customers” you are
offering. On various items, his commissions were based upon the profit earned by I-Evolve, not the amount of sales, and
thus Mr. Hickson needs to know I-Evolve’s costs to determine whether he was paid properly. Moreover, I was under the
impression that your client was in the process of preparing to produce all of the back-up, since I asked you and e-mailed
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FILED: ERIE COUNTY CLERK 02/02/2022 07:45 PM INDEX NO. 804173/2020
NYSCEF DOC. NO. 42 RECEIVED NYSCEF: 02/02/2022
you a number of times inquiring as when your client would be producing the back-up, and you didn’t advise until very
recently that they objected to doing so.
Regarding I-Evolve’s production of e-mails and texts, Mr. Hickson is willing to limit his requests to the following I-Evolve
employees: David Meller, Kevin Kelly, Joshua Randel, Jeff Kozlin, Kevin Stack, Christine Fetzer, Heidi Fischer and David
Blazak. (I am not sure if the spellings are all correct.)
Please advise.
Dick
Richard A. Clack, Esq.
LAW OFFICES OF RICHARD A. CLACK
750 Cathedral Park Tower
37 Franklin Street
Buffalo, New York 14202
Telephone: (716) 842-6230
E-mail: rclack@clackfirm.com
From: Jeffrey D. Coren [mailto:JCoren@phillipslytle.com]
Sent: Wednesday, December 15, 2021 11:52 AM
To: Richard Clack
Subject: RE: I-Evolve v. Hickson - Discovery
Dick, thank you for the clarification.
From: Richard Clack
Sent: Wednesday, December 15, 2021 11:47 AM
To: Jeffrey D. Coren
Subject: RE: I-Evolve v. Hickson - Discovery
ATTENTION EXTERNAL EMAIL: Use Caution with attachments and links!
Jeff:
I am preparing for a trial tomorrow, and I have a conference with the Court on that case at 12:30, but I spoke with Mr.
Hickson, and I wanted to get back to you quickly regarding his production.
With respect to the first paragraph of your e-mail below, I told you that Mr. Hickson would produce the e-mails
electronically with whatever metadata goes along with that, so I don’t know why you are talking about him printing
them in hard copy. Mr. Hickson said he would not be converting the e-mails to PDFs or any other format and that
apparently means they will be produced “natively”. He does not know how to produce texts, beyond screen shots, but
he is going to look into it.
Dick
Richard A. Clack, Esq.
LAW OFFICES OF RICHARD A. CLACK
750 Cathedral Park Tower
37 Franklin Street
Buffalo, New York 14202
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FILED: ERIE COUNTY CLERK 02/02/2022 07:45 PM INDEX NO. 804173/2020
NYSCEF DOC. NO. 42 RECEIVED NYSCEF: 02/02/2022
Telephone: (716) 842-6230
E-mail: rclack@clackfirm.com
From: Jeffrey D. Coren [mailto:JCoren@phillipslytle.com]
Sent: Wednesday, December 15, 2021 11:17 AM
To: Richard Clack
Subject: RE: I-Evolve v. Hickson - Discovery
Dick,
Following our conversation yesterday, I-Evolve continues to demand that Mr. Hickson and Mr. Natiella produce
responsive documents in native/electronic format with appropriate metadata. Metadata is especially relevant in light of
Mr. Hickson’s representation that, despite using the same “@pcbusiness” email address for several years, his email was
reset or deleted in the summer of 2019. Converting the emails to PDF or some other non-native format, or printing the
emails in hard copy, will strip the documents of relevant metadata. It is counsel’s responsibility to manage the collection
and production of documents, and the format of production cannot be left entirely to the client’s discretion. We are
prepared to move, if necessary, with respect to this issue.
With respect to I-Evolve’s records related to commission payments, we have offered to produce a detailed report of the
sales/charges for Mr. Hickson’s customers. These reports will be generated from records kept by I-Evolve in the regular
course of its business to track those sales and can be compared against the commission summaries, and complies with
defendant’s request for back-up documentation related to the commission payments.
With respect to defendant’s demand for communications, we continue to object to the demand as overbroad and not
relevant to the claims/defenses in this action. However, subject to those objections, in an effort to resolve this discovery
dispute, we will produce communications to/from Mr. Hickson, or that refer to Mr. Hickson (based on reasonable search
terms), from the email accounts of Joshua Randle (Mr. Hickson’s supervisor), David Meller, and Kevin Kelly. This is the
relevant list of custodians with respect to whether Mr. Hickson was terminated for cause, which is the only justification
provided by defendant for requesting these communications. There is no basis to search text messages of I-Evolve
employees with respect to this issue.
Please advise with respect to the native/electronic production of documents, and whether proposed document
production by I-Evolve resolves the remaining discovery issues, so that we may advise Darryl today whether the parties
will file discovery motions. I am available for a call to discuss until 3:30pm.
Thanks,
Jeff
From: Jeffrey D. Coren
Sent: Monday, December 13, 2021 5:06 PM
To: 'Richard Clack'
Subject: RE: I-Evolve v. Hickson - Discovery
Dick,
Please let me know if you would like to schedule a call tomorrow to discuss the remaining discovery issues, in advance of
Wednesday’s deadline to advise whether the parties will file discovery motions. I have a mediation in the morning but I
am available in the afternoon.
Thanks,
Jeff
3
FILED: ERIE COUNTY CLERK 02/02/2022 07:45 PM INDEX NO. 804173/2020
NYSCEF DOC. NO. 42 RECEIVED NYSCEF: 02/02/2022
From: Jeffrey D. Coren
Sent: Thursday, December 9, 2021 1:10 PM
To: 'Richard Clack'
Subject: I-Evolve v. Hickson - Discovery
Dick, please see the attached letter.
Thanks,
Jeff
Jeffrey D. Coren
Senior Associate
One Canalside
125 Main Street
Buffalo, NY 14203-2887
Phone 716 847 7024
Fax 716 852 6100
JCoren@phillipslytle.com
www.phillipslytle.com
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FILED: ERIE COUNTY CLERK 02/02/2022 07:45 PM INDEX NO. 804173/2020 NYSCEF DOC. NO. 42 RECEIVED NYSCEF: 02/02/2022 EXHIBIT S FILED: ERIE COUNTY CLERK 02/02/2022 07:45 PM INDEX NO. 804173/2020 NYSCEF DOC. NO. 42 RECEIVED NYSCEF: 02/02/2022 Mario Fadi Ayoub From: Jeffrey D. Coren Sent: Wednesday, January 5, 2022 10:56 AM To: 'Richard Clack' Subject: RE: I-Evolve v. Hickson - Discovery Follow Up Flag: Follow up Flag Status: Completed Dick, With respect to defendant’s overbroad and unreasonable demand for communications, we have gone back-and-forth with numerous calls and emails to narrow the relevant custodians and search criteria in an attempt to resolve plaintiff’s objections, as set forth in my December 9 letter. Unfortunately, we cannot seem to reach an agreement with this approach. The only claim or defense that Mr. Hickson has identified as relevant to his request for communications is I-Evolve’s claim that Mr. Hickson was terminated for cause pursuant to the Employment Agreement. As a result, rather than attempt to agree on custodians and search terms, I-Evolve responds to the request as follows: Subject to its objections, I-Evolve will produce email communications related to Mr. Hickson’s termination and the allegations in paragraphs 22-30 of the Complaint, to the extent those communications have not already been produced at I-EVOLVE_000070- 000214. With respect to the request for “back up” documentation on Mr. Hickson’s commissions, I-Evolve will produce documents related to the “profit margin” identified in the Monthly Sales and Commission Summaries, to the extent those records are maintained by I-Evolve in the usual course of business. We can also produce a detailed report of the sales/charges for Mr. Hickson’s customers, as those records are maintained by I-Evolve, although you have previously indicated that such a report is not necessary since we already produced the Monthly Sales and Commission Summaries. Pursuant to Darryl’s request this morning for an update, please advise whether I-Evolve should proceed to produce the documents identified above, or whether you intend to make a discovery motion. Thanks, Jeff From: Richard Clack Sent: Wednesday, December 15, 2021 2:30 PM To: Jeffrey D. Coren Subject: RE: I-Evolve v. Hickson - Discovery ATTENTION EXTERNAL EMAIL: Use Caution with attachments and links! Jeff: Regarding I-Evolve’s production to Mr. Hickson, as I previously advised, Mr. Hickson needs all of the back-up documentation for his monthly commission reports, not just the “sales and charges to his customers” you are offering. On various items, his commissions were based upon the profit earned by I-Evolve, not the amount of sales, and thus Mr. Hickson needs to know I-Evolve’s costs to determine whether he was paid properly. Moreover, I was under the impression that your client was in the process of preparing to produce all of the back-up, since I asked you and e-mailed 1 FILED: ERIE COUNTY CLERK 02/02/2022 07:45 PM INDEX NO. 804173/2020 NYSCEF DOC. NO. 42 RECEIVED NYSCEF: 02/02/2022 you a number of times inquiring as when your client would be producing the back-up, and you didn’t advise until very recently that they objected to doing so. Regarding I-Evolve’s production of e-mails and texts, Mr. Hickson is willing to limit his requests to the following I-Evolve employees: David Meller, Kevin Kelly, Joshua Randel, Jeff Kozlin, Kevin Stack, Christine Fetzer, Heidi Fischer and David Blazak. (I am not sure if the spellings are all correct.) Please advise. Dick Richard A. Clack, Esq. LAW OFFICES OF RICHARD A. CLACK 750 Cathedral Park Tower 37 Franklin Street Buffalo, New York 14202 Telephone: (716) 842-6230 E-mail: rclack@clackfirm.com From: Jeffrey D. Coren [mailto:JCoren@phillipslytle.com] Sent: Wednesday, December 15, 2021 11:52 AM To: Richard Clack Subject: RE: I-Evolve v. Hickson - Discovery Dick, thank you for the clarification. From: Richard Clack Sent: Wednesday, December 15, 2021 11:47 AM To: Jeffrey D. Coren Subject: RE: I-Evolve v. Hickson - Discovery ATTENTION EXTERNAL EMAIL: Use Caution with attachments and links! Jeff: I am preparing for a trial tomorrow, and I have a conference with the Court on that case at 12:30, but I spoke with Mr. Hickson, and I wanted to get back to you quickly regarding his production. With respect to the first paragraph of your e-mail below, I told you that Mr. Hickson would produce the e-mails electronically with whatever metadata goes along with that, so I don’t know why you are talking about him printing them in hard copy. Mr. Hickson said he would not be converting the e-mails to PDFs or any other format and that apparently means they will be produced “natively”. He does not know how to produce texts, beyond screen shots, but he is going to look into it. Dick Richard A. Clack, Esq. LAW OFFICES OF RICHARD A. CLACK 750 Cathedral Park Tower 37 Franklin Street Buffalo, New York 14202 2 FILED: ERIE COUNTY CLERK 02/02/2022 07:45 PM INDEX NO. 804173/2020 NYSCEF DOC. NO. 42 RECEIVED NYSCEF: 02/02/2022 Telephone: (716) 842-6230 E-mail: rclack@clackfirm.com From: Jeffrey D. Coren [mailto:JCoren@phillipslytle.com] Sent: Wednesday, December 15, 2021 11:17 AM To: Richard Clack Subject: RE: I-Evolve v. Hickson - Discovery Dick, Following our conversation yesterday, I-Evolve continues to demand that Mr. Hickson and Mr. Natiella produce responsive documents in native/electronic format with appropriate metadata. Metadata is especially relevant in light of Mr. Hickson’s representation that, despite using the same “@pcbusiness” email address for several years, his email was reset or deleted in the summer of 2019. Converting the emails to PDF or some other non-native format, or printing the emails in hard copy, will strip the documents of relevant metadata. It is counsel’s responsibility to manage the collection and production of documents, and the format of production cannot be left entirely to the client’s discretion. We are prepared to move, if necessary, with respect to this issue. With respect to I-Evolve’s records related to commission payments, we have offered to produce a detailed report of the sales/charges for Mr. Hickson’s customers. These reports will be generated from records kept by I-Evolve in the regular course of its business to track those sales and can be compared against the commission summaries, and complies with defendant’s request for back-up documentation related to the commission payments. With respect to defendant’s demand for communications, we continue to object to the demand as overbroad and not relevant to the claims/defenses in this action. However, subject to those objections, in an effort to resolve this discovery dispute, we will produce communications to/from Mr. Hickson, or that refer to Mr. Hickson (based on reasonable search terms), from the email accounts of Joshua Randle (Mr. Hickson’s supervisor), David Meller, and Kevin Kelly. This is the relevant list of custodians with respect to whether Mr. Hickson was terminated for cause, which is the only justification provided by defendant for requesting these communications. There is no basis to search text messages of I-Evolve employees with respect to this issue. Please advise with respect to the native/electronic production of documents, and whether proposed document production by I-Evolve resolves the remaining discovery issues, so that we may advise Darryl today whether the parties will file discovery motions. I am available for a call to discuss until 3:30pm. Thanks, Jeff From: Jeffrey D. Coren Sent: Monday, December 13, 2021 5:06 PM To: 'Richard Clack' Subject: RE: I-Evolve v. Hickson - Discovery Dick, Please let me know if you would like to schedule a call tomorrow to discuss the remaining discovery issues, in advance of Wednesday’s deadline to advise whether the parties will file discovery motions. I have a mediation in the morning but I am available in the afternoon. Thanks, Jeff 3 FILED: ERIE COUNTY CLERK 02/02/2022 07:45 PM INDEX NO. 804173/2020 NYSCEF DOC. NO. 42 RECEIVED NYSCEF: 02/02/2022 From: Jeffrey D. Coren Sent: Thursday, December 9, 2021 1:10 PM To: 'Richard Clack' Subject: I-Evolve v. Hickson - Discovery Dick, please see the attached letter. Thanks, Jeff Jeffrey D. Coren Senior Associate One Canalside 125 Main Street Buffalo, NY 14203-2887 Phone 716 847 7024 Fax 716 852 6100 JCoren@phillipslytle.com www.phillipslytle.com Download vCard This electronic transmission and any attachments hereto are intended only for the use of the individual or entity to which it is addressed and may contain confidential information belonging to the sender which is protected by the attorney-client privilege. If you have reason to believe that you are not the intended recipient, you are hereby notified that any disclosure, copying, distribution or the taking of any action in reliance on the contents of this electronic transmission is strictly prohibited. If you have reason to believe that you have received this transmission in error, please notify immediately by return e-mail and delete and destroy this communication. WARNING: E-mail communications cannot be guaranteed to be timely, secure, error-free or virus-free. The recipient of this communication should check this e-mail and each attachment for the presence of viruses. The sender does not accept any liability for any errors or omissions in the content of this electronic communication which arises as a result of e-mail transmission. 4