Exhibit,Appendix: Ievolve, Inc. v. Gerald E. Hickson

On March 18, 2020 a Exhibit,Appendix was filed involving a dispute between Ievolve, Inc., and Gerald E. Hickson, for Commercial Division in the District Court of Erie County.

Preview
FILED: ERIE COUNTY CLERK 02/02/2022 07:45 PM INDEX NO. 804173/2020
NYSCEF DOC. NO. 41 RECEIVED NYSCEF: 02/02/2022

EXHIBIT
R
FILED: ERIE COUNTY CLERK 02/02/2022 07:45 PM INDEX NO. 804173/2020
NYSCEF DOC. NO. 41 RECEIVED NYSCEF: 02/02/2022

Via Email December 9, 2021

Richard A. Clack, Esq.
Law Offices of Richard A. Clack
750 Cathedral Park Tower
37 Franklin Street
Buffalo, New York 14202

Re: IEvolve, Inc. v. Gerald E. Hickson, Index No. 804173/2020

Dear Dick:

Pursuant to the Court’s direction at the December 1, 2021 discovery conference, we
write regarding outstanding discovery issues.

With respect to the discussion below concerning electronic production with metadata,
enclosed is a proposed protocol for document production and ESI.

A. I-Evolve’s Document Requests

Defendant’s initial document production consisted of a box of printed emails without
any attachments. I-Evolve demanded that defendant reproduce the entire production,
including all attachments, electronically with metadata. Defendant has agreed to
produce all attachments to emails, but has not committed to the format of that
production, or whether everything will be reproduced. Please advise whether
defendant will reproduce the entire initial production, with all attachments, in
electronic format with metadata.

Defendant has agreed to search the “pcbusiness.com” email accounts for Gerald
Natiella and Scott Pettit for documents responsive to I-Evolve’s requests. I-Evolve
demands that any supplemental production is made in electronic format with metadata.
Please confirm the format of this supplemental production.

JEFFRE Y D. C ORE N

DIREC T 716 847 7024
J C O R E N @ P HI L L I P S L Y T L E . C O M

A T T O R N E Y S A T L AW

_________

O NE C A N A L S I D E 1 2 5 M A I N S T R E E T B U F F A L O , NE W YO R K 1 4 2 0 3 - 2 8 8 7 P H O N E ( 7 1 6 ) 8 4 7 - 8 4 0 0 F AX ( 7 1 6 ) 8 5 2 - 6 1 0 0 | P H I L L I P S L YT L E . C O M

N E W YO R K : AL B A N Y , B U F F AL O , C H A U T A U Q U A , G AR D E N C I T Y , N E W Y O R K , R O C HE S T E R | W A S H I N G T O N , D C | C A NA D A : W A T E R L O O R E G I O N
FILED: ERIE COUNTY CLERK 02/02/2022 07:45 PM INDEX NO. 804173/2020
NYSCEF DOC. NO. 41 RECEIVED NYSCEF: 02/02/2022

Richard A. Clack, Esq. December 9, 2021
Page 2

As counsel for Mr. Natiella, you have agreed to search Mr. Natiella’s personal email
account (gnatiella@gmail.com) and produce documents responsive to the subpoena.
I-Evolve demands that any supplemental production is made in electronic format with
metadata. Please confirm the format of the production.

We had discussed whether defendant could export or convert the OneNote file in a
“static” format for production. Please advise.

I-Evolve requested that defendant produce (a) text messages between Mr. Hickson and
the agreed-upon list of I-Evolve customers beginning January 1, 2019, (b) text messages
with Mr. Natiella concerning I-Evolve customers or concerning Mr. Natiella’s
employment at PC Business [also from January 1, 2019], and (c) text messages with any
other I-Evolve employees soliciting their employment at PC Business. Defendant has
agreed to produce (a). Please advise whether defendant will produce (b) and confirm
that defendant does not have documents responsive to (c).

B. Defendant’s Request for Back-Up Documents

Defendant requested all of the back-up documentation for Mr. Hickson’s monthly
commission statements. I-Evolve objected to this request in its Responses and
Objections as overbroad and unduly burdensome, because it would involve thousands
of invoices, agreements, and other documents spanning defendant’s entire period of
employment. In response to this request, I-Evolve will produce a detailed report of
every sale/charge for Mr. Hickson’s customers from its records.

C. Defendant’s Request for Communications

Defendant requested “all text messages, by any and all employees of I-Evolve, that refer
or pertain to Mr. Hickson in any way, from the inception of his employment through
the present, ” “any and all text messages between any and employees of I-Evolve and
Mr. Hickson for the same time period,” and “all e-mails generated between any and all
employees of I-Evolve that refer in any way to Mr. Hickson for the same time period.”
Some of these requests were first made in your November 17, 2021 email.
FILED: ERIE COUNTY CLERK 02/02/2022 07:45 PM INDEX NO. 804173/2020
NYSCEF DOC. NO. 41 RECEIVED NYSCEF: 02/02/2022

Richard A. Clack, Esq. December 9, 2021
Page 3

Defendant repeats and/or incorporates its Responses and Objections that these requests
are overbroad, unduly burdensome, and not material or necessary to the claims or
defenses in this action. In particular, (a) this request spans the more than four-year
employment period for Defendant, (b) a search for references to “Jerry” or similar term
over this period will undoubtedly yield countless unresponsive results (for instance,
there is another employee named Jerry); and (c) the request is not tailored to whether
defendant was terminated for cause, or any other claim/defense. Further, there is no
justification for searching the text messages of I-Evolve employees; I-Evolve renewed its
request for text messages only after defendant admitted to deleting emails.

In response to these requests, I-Evolve will search the email accounts of relevant
custodians for communications with defendant. We believe this is a reasonable and
proportionate response to the overly broad requests by defendant.

We request a response to this letter by close of business on December 13 so that the
parties may discuss remaining issues (if any) prior to the December 15 deadline to
report to the Court whether the parties intend to make discovery motions.

Very truly yours,

Phillips Lytle LLP

Jeffrey D. Coren

Doc #10111578.1
FILED: ERIE COUNTY CLERK 02/02/2022 07:45 PM INDEX NO. 804173/2020
NYSCEF DOC. NO. 41 RECEIVED NYSCEF: 02/02/2022

Protocol Relating to the Production of Documents
and Electronically Stored Information

This Protocol Relating to the Production of Documents and Electronically Stored
Information (“ESI”) shall govern the mechanism and format of the parties’ production
of documents and ESI.

1. Document Production Format.

a. TIFF/Native File Format Production. Parties shall produce responsive,
non-privileged discoverable ESI in single-page TIFF-image format with
extracted or OCR text. The default production format will be Group IV
single-page TIFF (300 DPI), with corresponding multi-page text and
necessary load files. The load files will include an image load file as well
as a metadata (.dat) file with the metadata fields identified in Appendix A
on the document level, to the extent available. Each TIFF image shall have
a legible, unique page identifier (“Bates Number”) electronically “burned”
onto the image at a location that does not obliterate or obscure any
information from the source document, preferably at the bottom right of
the image. Bates Numbers should be a combination of a unique alpha
prefix identifying the producing party followed by an 8 digit number
(e.g., ABC00000001). Each party shall use a consistent Bates Number
prefix across its productions. Confidentiality designations pursuant to
any applicable, state, or common law, or any protective order or
confidentiality stipulation entered into by the Parties, a confidentiality
designation may be “burned” onto a document’s image at a location that
does not obliterate or obscure any information from the source document,
preferably at the bottom center of the image.

b. Native Files. Notwithstanding the foregoing, parties shall produce
responsive, non-privileged discoverable spreadsheets, audio, video, or
presentation (such as PowerPoint) files in native format, with a
placeholder TIFF image stating “Document Produced Natively,” unless
such document contains redactions, in which case, they may be produced
in TIFF format. The filename for the native file must match the Bates
numbering format as outlined in 1(a).

c. Paper Files. Hard copy paper files shall be electronically scanned and
produced as they are kept in the ordinary course of business and in the
same format as outlined in 1(a).
FILED: ERIE COUNTY CLERK 02/02/2022 07:45 PM INDEX NO. 804173/2020
NYSCEF DOC. NO. 41 RECEIVED NYSCEF: 02/02/2022

d. Password protected files. The Producing Party will make reasonable
efforts to open and access password-protected files that are identified
during processing.

e. Custodian. Custodian information will be provided for all produced
items including any ESI or Paper files. The main custodian should be
listed in the Custodian field while all custodians should be placed in the
AllCustodian field of the load file.

f. Load File(s). Document productions shall include Concordance and
Relativity compatible load file(s).

2. Metadata Fields. No party has an obligation to create or manually code
metadata fields that are not automatically generated by the processing of ESI or
that do not exist as part of the original metadata of the ESI. For all electronic
documents, an ASCII text (or Unicode text if the text is in a language requiring
characters outside of the ASCII character set) load file shall be produced setting
forth the data fields listed in Appendix A. For redacted electronic documents,
metadata fields must be produced to the extent such fields will not disclose
redacted information.

The parties reserve the right to request that additional data fields be set forth or
provided for certain specified electronic documents upon review of the other
party’s production.

3. De-NISTing. Electronic file collections will be De-NISTed, removing
commercially available operating system and application file information
contained on the current NIST file list.

4. Deduplication. E-mail and Other ESI files will be globally de-duplicated at the
family level using MD5 or other available hash values, to the extent possible,
prior to production.

5. Production Delivery. Documents shall be produced on external electronic
media or exchanged via secure FTP. Each piece of production media or
deliverable file shall identify: (1) the producing party’s name; (2) the production
date; and (3) the Bates Number range of the materials contained on the
production media.

-2-
FILED: ERIE COUNTY CLERK 02/02/2022 07:45 PM INDEX NO. 804173/2020
NYSCEF DOC. NO. 41 RECEIVED NYSCEF: 02/02/2022

APPENDIX A

DATA FIELD DESCRIPTION ESI Loose E-mail Hard
Files Copy
BEGDOC Beginning Number   
ENDDOC Ending Number   

BATESRANGE Full Document  
Range
ATTACHRANGE Total Attachment  
Range
ATTACHMENTS Number of  
Attachments
BEGATTACH Beginning  
Attachment Number
ENDATTACH Ending Attachment  
Number
CHILD_BATES Bates Number of  
Each Attachment
PARENT_BATES Bates Number of  
Parent
PageCount Number of Images   
in a produced
document
Custodian Custodian of the   
produced document
AllCustodian All custodian(s) that   
possessed the
document or
electronic file.
Multiple custodians
separated by
semicolon
TO Recipient 
FROM Sender 
CC Carbon Copy 
BCC Blind Carbon Copy 
SUBJECT Email Subject 
DATE-TIME SENT Sent Date-TIME 
(UTC)
(20150211 14:11:26)
DATE-TIME Received Date- 
RECEIVED TIME (UTC)
(20150211 14:11:26)

-3-
FILED: ERIE COUNTY CLERK 02/02/2022 07:45 PM INDEX NO. 804173/2020
NYSCEF DOC. NO. 41 RECEIVED NYSCEF: 02/02/2022

FILENAME Saved Name of  
Document
TITLE Title from Properties 
of Document
DOCEXT File Extension  

DOCTYPE File Type  
AUTHOR Creator  
DATE-TIME Date-Time Created  
CREATED 20150211 14:11:26
DATE-TIME Date-Time Last  
LASTMODIFIED Modified
20150211 14:11:26
CONFIDENTIALITY Confidentiality   
Designation
REDACTED Redacted document   
– YES/NO
PRIVILEGED Privileged Asserted   

Importance Email Importance  
Flag
Email Folder Folder Email  
originally located
Password_Encryption If the item is  
password protected
or encrypted
Hash Value MD5 Hash  

Production Volume Production Volume   

NATIVEFILELINK Link to the Native   
File or PDF
TEXT_PATH Path to Document   
Text File

-4-

Case Info

Judge

Emilio Colaiacovo Track Judge’s New Case

Case No.

(Subscribe to View)

Document Filed Date

February 02, 2022

Case Filing Date

March 18, 2020

County

Parties

For full print and download access, please subscribe at https://www.trellis.law/.