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FILED: ERIE COUNTY CLERK 11/08/2022 03:55 PM INDEX NO. 804173/2020
NYSCEF DOC. NO. 55 RECEIVED NYSCEF: 11/08/2022
STATE OF NEW YORK
SUPREME COURT : COUNTY OF ERIE
IEVOLVE, INC.,
Plaintiff, AFFIDAVIT
-vs- Index No. 804173/2020
GERALD E. HICKSON,
Defendant.
STATE OF NEW YORK)
COUNTY OF ERIE ) SS.:
CITY OF BUFFALO )
RICHARD A. CLACK, being duly sworn, deposes and says:
1. Iam an attorney at law, duly authorized to practice in the State of New
York, and am the attorney for the defendant, Gerald E. Hickson ("Hickson").
2. I make this affidavit in support of Hickson's motion for:
a. An order, pursuant to CPLR §§2303, 2304 and 3103, quashing the
subpoenas served by the plaintiff, IEvolve, Inc. ("IEvolve"), upon fourteen (14) of
Hickson's customers and suppressing the information improperly obtained through the
use of same and requiring IEvolve to disgorge all documents received in response to
same;
b. An order, pursuant to CPLR §3126(3), dismissing IEvolve's
complaint, with prejudice; and
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c. An order extending the
discovery completion deadline in the
Court's scheduling order, granted March 10, 2022, for a period of six (6) months; and
d. An order granting Hickson such other, further and different relief
as to the Court seems just, proper and equitable, together with the costs and
disbursements of this motion.
Brief Background
3. of brief background, IEvolve is an IT services that
By way company
previously employed Hickson as an IT technician. IEvolve terminated Hickson's
employment on July 15, 2019, claiming that his employment was terminated "for
cause".
4. Hickson denies that IEvolve had just cause to terminate his employment.
Instead, he contends that IEvolve breached his written employment agreement with
IEvolve by unlawfully terminating him without a proper factual or legal basis under
law or the employment agreement for so, and also failed to pay Hickson the
doing
compensation he was entitled to be paid up to and subsequent to the date of his
termination.
5. Hickson also alleges that IEvolve also breached a related asset purchase
agreement between IEvolve and Hickson's wholly-owned IT company, P.C. Business
Solutions, Inc. ("P.C. Business"), IEvolve had purchased certain assets of P.C.
whereby
Business. Pursuant to that asset purchase agreement, IEvolve was required to make 20
quarterly payments to P.C. Business, but failed to make the last two (2) quarterly
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payments that were due on or after the time that Hickson was terminated, totaling
$42,106.67.
6. When IEvolve breached these agreements and terminated Hickson,
Hickson was free to earn a living in his field, and his long-time customers were free to
seek his services after he left IEvolve's employ. Those customers had come to IEvolve
with Hickson when Hickson sold assets of P.C. Business to IEvolve. They had no
interest in remaining as customers of IEvolve, after Hickson was terminated, and they
left and followed him. Hickson had no need to solicit, and did not solicit, those
customers.
Procedural History
7. IEvolve commenced this action on March 18, 2020 by filing a summons
and complaint in the Erie County Clerk's Office. On June 8, 2020, Hickson duly
interposed a answer with counterclaims to the complaint, wherein he denied all
timely
allegations of liability, raised several affirmative defenses and asserted two
counterclaims. On October 13, 2020, IEvolve served a timely reply to Hickson's
counterclaims, his counterclaims and asserting various purported defenses.
denying
(True copies of IEvolve's summons and complaint, Hickson's answer with
counterclaims and IEvolve's reply are annexed hereto as Exhibits A, B and C,
respectively.)
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Discovery Productions by the Parties Relevant to this Motion
8. Hickson has produced detailed reports of all of his sales and invoices to a
listof customers identified by IEvolve that he has done business with since being
terminated by
IEvolve. These customers were customers Hickson brought with him
when he went to work for I-Evolve. In addition, Hickson has produced copies of allof
his emails to those customers for a requested period of time (consisting of over 2,000
pages of documents), as well as certain other requested documents. Hickson produced
those emails in both paper and electronic format.
9. IEvolve has produced Excel versions of the monthly commission
statements it issued to Hickson while he was employed by IEvolve. Under his
employment agreement, Hickson's compensation was based upon the amount of IT
service work he performed and the sales of equipment and other services he made to
customers under a commission schedule that provided varying commission levels for
different categories of work and/or sales. (A true copy of said commission schedule is
annexed hereto as Exhibit D.)
Good Faith Efforts at Resolution of Discovery Disputes
10. I prepared and sent various letters and emails to IEvolve's attorney, and
have had lengthy discussions with him, over a 3 ½ month period of time, concerning
the issues which are the subject of this motion. Unfortunately, these efforts have been
unsuccessful in these issues. These letters and of these emails are
resolving many
annexed hereto as exhibits, and will demonstrate the lengthy and extensive
they clearly
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effort I invested in to resolve these disputes and avoid to bother and
trying having
resort to the Court for a resolution.
Relevant Issues Concerning Case
11. Hickson is attempting to determine whether IEvolve properly paid him
commissions pursuant to the commission schedule in his employment agreement. For
hardware, software and equipment sales, the commission schedule required IEvolve to
pay him a percentage of its gross profit on the items. Other categories of commissions
were based upon formulas involving total revenues and other factors.
12. In order for Hickson to be able to determine whether IEvolve made proper
commission payments to him, IEvolve must produce all of the back-up information and
documents it relied upon in preparing the monthly commission statements to Hickson,
including all of the information and documents it relied upon in making the
representations of itscosts in those monthly commission statements. (See, email from
Clack to Coren of 12/15/21, a true copy of which is annexed hereto as Exhibit E.)
13. The commission statements are in the form of Excel program spreadsheets
and graphs that cannot be uploaded on the Court's e-filing system so that the Court can
see what they consist of. These commission statements contain various calculations and
figures that are referenced to other source documents of IEvolve, but the source
documents themselves are not included as part of the commission statements. There are
no copies documents accessible in these Excel spreadsheets.
of any
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14. Hickson has a right to see all of the source documents upon which the
commission statements were based, because that is the way he can determine
only
whether he was properly
paid according to his commission schedule with IEvolve.
15. IEvolve's has refused to produce allof the back-
Yet, attorney steadfastly
up information and documentation that IEvolve relied upon in preparing and issuing
its commission statements to Hickson.
monthly
16. Itshould be noted that, in contrast to IEvolve's stonewalling in producing
these critical relevant documents, Hickson produced literally all of the information and
documents requested IEvolve (thousands of pages of information and documents),
by
even though he believes that there is not a single relevant email among them. In this
respect, IEvolve requested all of Hickson's emails to the customers on IEvolve's list for a
period commencing 6 ½ months prior to the time he was terminated by IEvolve until
(60) days after he issued an invoice to the customer from the business he started
sixty
after his termination.
17. IEvolve's only legitimate purpose in seeking these emails is to determine
whether Hickson solicited his former customers, which IEvolve claims would be a
violation of the non-competition provision in his employment agreement, as opposed to
the customers Hickson, as Hickson contends occurred. The emails
merely following
have no other relevance. It is of no relevance exactly what Hickson was saying or doing
in connection with his performance of services for these customers. Moreover, as
related, he has produced reports all of the income he has generated
already showing
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from, and the invoices rendered to, those customers since his termination by IEvolve.
Nevertheless, Hickson produced all of these emails, regardless whether they contained
of
any relevant content.
MOTION TO QUASH SUBPOENAS
18. IEvolve has served fourteen (14) subpoenas duces tecum to Hickson's
current customers, a group of 2 on 85, 1 on July 295, a group of 7 on
serving July
September and a of 4 on September 23rd All of these subpoenas are
166, group
identical, except some of the later ones request production for a slightly
virtually
shorter period of time. (True copies of all of the subpoenas, with the cover letters
along
thereto, are collectively annexed hereto as Exhibit F.)
19. I reviewed the first set of subpoenas served by IEvolve's attorney (the two
subpoenas served on Friday, 86), and it was immediately apparent that they were
July
broad and improper. In addition, IEvolve failed to comply with
completely overly
CPLR §2303 by tendering the required witness fee along with the subpoenas and also
failed to make any offer to the customers to defray the reasonable production expenses
the subpoenaed parties incur in complying
with the subpoenas, as required by
CPLR
§3122(d). In addition, each of the subpoenas failed to comply with CPLR §3101(a)(4) by
not a statement the "circumstances or reasons such disclosure is
including stating
required.'
sought or
20. I related objections to the subpoenas in an email to IEvolve's
promptly my
on 12, 2022. (A true of said email is attached as Exhibit G.) Among
attorney July copy
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other things, I advised IEvolve's that the subpoenas were to broad. I
attorney way
pointed out that they called for production of documents for a period from
extending
4 ½ years before Hickson was terminated by IEvolve up through the present, which is
well over 3 years after his termination. I asked him what right IEvolve had to subpoena
Hickson's customers for: (a) everything they are doing with him today, (b) everything
they have for a 4 ½ year period before IEvolve even fired him, (c) text messages, which
"all"
neither of the parties have even been able to produce, and for requests for of
(d)
"all"
this and of that, regardless of relevance. I advised him, for example, that one of
the subpoena recipients, the Champiou accounting firm, has 160 employees.
21. I further advised IEvolve's attorney that, if we could not agree to a
reasonable scope of production for those two customers, I would be to quash
moving
the subpoenas. I also advised him that the customers would likely be looking for
IEvolve to pay for them to have an IT company search for and produce the items he had
requested, because they are not required by law to bear those costs.
22. IEvolve's attorney responded in an email later that day, brushing off these
valid and serious objections, stating, "There is no basis for Hickson to quash the
subpoenas". (A true copy of this email is annexed hereto as Exhibit H.) He essentially
argued that allcommunications between Hickson and the customers the period of
during
Hickson's employment with IEvolve, and after his termination and to the present
up
time, are all somehow relevant to IEvolve damages. He further contended that the
document requests are not overbroad and "are limited to the provision of IT
generally
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services". He also justified the subpoenas by claiming
that
they were necessary
because
Hickson had deleted his emails prior to July 15, 2019.
23. However, the truth is that solicitations are relevant, and, ifthere were
only
any, they
would have occurred shortly before or after Hickson's termination on July 15,
2019. Moreover, IEvolve's has been provided with information
attorney already
concerning all amounts Hickson billed to and was paid by these customers, up to the
present. Those amounts would be IEvolve's damages, if, in fact, it proved that Hickson
had breached his employment agreement with respect to any of those
actually
customers.
24. Thus, the recipients of the subpoenas are being asked to produce hordes
of irrelevant documents. The issuance of these subpoenas with this scope is a willful
and flagrant abuse IEvolve of itsright to issue non-judicial subpoenas upon non-
by
parties to the case.
25. IEvolve's also stated that neither Hickson, nor his company,
attorney
should not be engaged to perform the document collection in response to the subpoenas
to Hickson's various customers. This would result in costing the subpoenaed
obviously
parties more to respond to and with the subpoenas, which costs, as
money comply
previously noted, IEvolve did not offer to defray, as required by CPLR §3122(d).
26. When IEvolve's attorney issued another batch of 7 subpoenas on
September 16, 2022, and were in the same broad form as Ihad complained
they overly
about more than 2 months earlier, I sent IEvolve's a letter, dated September 20,
attorney
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2022, explaining in full detail the defects with the subpoenas, including the continued
parties'
failure to provide a witness fee and an offer to the subpoenaed
defray
reasonable costs, and asked him to advise as soon as possible if he would promptly cure
the deficiencies and objections cited in my letter. (A true of this letter is annexed
copy
hereto as Exhibit I.)
27. I never received a response to that letter. Instead, IEvolve's attorney
issued another batch of 4 similarly overly broad and otherwise improper subpoenas on
September 23, 2022.. That is why I am making the present motion.
28. Thus, every one of the 14 subpoenas IEvolve issued over a period of 2 ½
months failed to comply with CPLR §2303 by tendering the required witness fee along
with the subpoena. IEvolve's attorney also failed to make any offer in his cover letters
to the subpoenas to defray the reasonable production expenses the subpoenaed parties
incur in complying with the subpoenas, as per CPLR §3122(d). IEvolve also failed to
comply
with CPLR §3101(a)(4) by not including a statement describing the
reasons"
"circumstances or for the sought for discovery.
29. letter of September 20th to IEvolve pointed in full the
My out, detail,
defects in the subpoenas:
"commanded"
a. With respect to the of each subpoena, IEvolve
body
the subpoenaed parties to produce the originals or copies of the documents at its
attorneys'
offices. However, their obligation under the CPLR is only to make available
the documents for inspection and copying, which is commonly done at their own
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offices. They do not have to provide IEvolve with copies of anything. (See, CPLR
§3122(d).)
b. In each subpoena, IEvolve also knowingly asked for documents
that are far beyond the scope of this case. With respect to the subpoena served upon
Andreozzi Bluestein LLP, for example, IEvolve commanded production of documents
from January 1, 2017 to the present. However, I am advised that Andreozzi Bluestein
continued using IEvolve's services until a date late in 2020. So, what justification did
IEvolve have to demand them to produce documents
dating
back to January 1, 2017?
Moreover, why do they have to produce documents to the present? What Andreozzi
Bluestein is doing with Hickson at the present is of no relevance whatsoever to any
issue in this lawsuit. should Andreozzi Bluestein have to go to the trouble of
Why
producing irrelevant documents for such an unnecessarily sweeping period of time?
c. In addition, IEvolve's the subpoena calls for production of text
messages. Pursuant to the discussions IEvolve's attorney and I have had in this case,
we both know that production of texts would involve a tremendous burden and large
expense to a party, let alone a non-party, particularly as the cell phones would likely
not be owned by the subpoenaed party. Neither of the parties were even able to
produce cell phone texts in this case. So, why was IEvolve making such
any
burdensome requests on the subpoenaed parties, some of whom have dozens or more
of employees? Is IEvolve prepared to pay those costs?
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d. With respect to the specific requests for production, IEvolve
communications"
demanded "All in paragraph 1, not limited to an appropriate time
period as previously indicated and not limited to subject, even though the
any only
relevant subject is whether business was solicited from Andreozzi Bluestein while
Hickson or Gerald Natiella were stillemployed by IEvolve or after
("Natiella") shortly
they left IEvolve. There certainly is no justification for asking for records up to the
present.
e. The same objection applies to paragraph 2. IEvolve asked for "All
documents concerning any proposal offer or solicitation . .. for IT Services", even
though for the first several years of the requested production period, Hickson and
Natiella were employed by IEvolve and solicitations at the present are irrelevant. The
only solicitations, ifthere were any, that Andreozzi Bluestein should have to produce
should be similar to what the parties agreed to for Hickson and that is up to 60 days
after Hickson issued his first invoice to a customer, such as Andreozzi Bluestein.
f. Paragraph 3 requests utterly irrelevant documents. Itmakes no
difference what services were provided by Hickson, and IEvolve is not entitled to know
what services were provided, other than possibly for the initial time period previously
referenced.
g. Paragraph 4 is also completely objectionable. If any such offers of
employment were made to Hickson or Natiella, that is of no relevance to this case. They
are free to accept employment as they wish. Also, Hickson has produced to
already
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IEvolve information the amounts he has been paid all of the requested
showing by
customers, including the subpoenaed customers.
30. Some of the subpoenaed customers, through their attorneys, contacted me
about limiting the scope of the subpoenas. Since IEvolve's attorney knew full well that
the subpoenas are
overly broad, I believe he was intentionally harassing Hickson and
his customers by continuing to issue new subpoenas in the same overly broad form,
thereby requiring each of his customers, one after another, to have to involve their
attorneys and/or spend their time trying to negotiate reasonable scopes to the
subpoenas.
31. These subpoenas are so overreaching and otherwise so fail to comply with
the requirements of the CPLR that they constitute abuses of process. I can only
conclude that were intentionally served to harass Hickson's customers and subject
they
them to unreasonable annoyance and expense. Moreover, some of the recipients of the
subpoenas have complied with them, despite not even having been paid a
voluntarily
witness fee or been offered or paid for any of the costs involved in producing the
documents. That has resulted in harassment of them and subjected them to
unreasonable annoyance and expense in irrelevant documents that
producing totally
IEvolve had no right for them to produce.
recipients'
32. Moreover, the subpoenas violate not only the privacy rights,
but Hickson's privacy
rights. IEvolve has absolutely no right to know exactly what
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Hickson is on a day-to-day basis with his various customers, over three years
doing
after he was terminated by IEvolve.
33. In conclusion, IEvolve's subpoenas should be completely and totally
quashed. Moreover, have resulted in IEvolve information
they improperly obtaining
that has prejudiced a substantial right of the both the subpoenaed third-parties and
Hickson. Thus, pursuant to CPLR §3103(c), an order should be entered suppressing the
information improperly obtained through the use of the subpoenas and requiring
IEvolve to disgorge all documents received in response to same.
34. In view of the foregoing, I respectfully submit that Hickson is entitled to
an order, pursuant to CPLR §§2303, 2304 and 3103, quashing the subpoenas and
suppressing the information improperly obtained through the use of same and
requiring IEvolve to disgorge all documents received in response to same.
MOTION FOR DEFAULT JUDGMENT
35. As the Court is aware, Hickson previously had to make a motion to
compel production of documents, due to IEvolve's refusal to agree to produce relevant
documents.
36. When Hickson made his motion, IEvolve fought extremely hard against
producing the back-up documentation to Hickson's monthly commission reports.
However, the Court ruled in Hickson's favor on this point, stating that the documents
were relevant and had to be produced. This ruling was memorialized in the Courts
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order, dated April 5, 2022, a true of which is annexed hereto as Exhibit J. The
copy
"ordering"
operative paragraph is the third paragraph which states,
ORDERED, that the plaintiff produce all back-up
information and documentation for all of the plaintiff's
commission reports for the defendant for the entire
monthly
period of his employment with the plaintiff, including any
such reports generated after he was terminated by the
plaintiff.
37. In the production made by IEvolve in response to this aspect of the
Courts order, IEvolve produced a "file . .. which is exported from the IEvolve sales tool".
(emphasis (See, e-mail from Coren to Clack, dated August 4, 2022, a true copy
added)
of which is annexed hereto as Exhibit K.) That file consisted of new copies of Hickson's
"tabs"
monthly commission reports, in Excel format, wherein in the reports could now
be opened which provide further electronic information concerning aspects of the
reports. However, this is not what I had requested in my prior motion and is not what
"documents"
the Court ordered to be produced. It is not at all. It is essentially
clearly
documents"
computer gibberish. The Court ordered "all back-up information and to be
produced. There are no documents whatsoever accessible and included in these Excel
spreadsheets.
38. IEvolve also produced electronic copies of some actual documents in
response to the Courts order. However, most of the documents produced were copies
of which IEvolve had also resisted and were also the subject of
emails, producing my
prior motion, that were produced in response to the second ordering paragraph of the
Courts order.
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39. From my perusal of the actual documents produced by IEvolve (which
had to be opened one and were as discussed in the October 20th
by one, unsearchable,
Court conference with Confidential Law Clerk, Darryl Colosi, Esq. and were only
reproduced by IEvolve in a usable format a little over a week ago and have not yet been
reviewed), itapp
Preview
FILED: ERIE COUNTY CLERK 11/08/2022 03:55 PM INDEX NO. 804173/2020 NYSCEF DOC. NO. 55 RECEIVED NYSCEF: 11/08/2022 STATE OF NEW YORK SUPREME COURT : COUNTY OF ERIE IEVOLVE, INC., Plaintiff, AFFIDAVIT -vs- Index No. 804173/2020 GERALD E. HICKSON, Defendant. STATE OF NEW YORK) COUNTY OF ERIE ) SS.: CITY OF BUFFALO ) RICHARD A. CLACK, being duly sworn, deposes and says: 1. Iam an attorney at law, duly authorized to practice in the State of New York, and am the attorney for the defendant, Gerald E. Hickson ("Hickson"). 2. I make this affidavit in support of Hickson's motion for: a. An order, pursuant to CPLR §§2303, 2304 and 3103, quashing the subpoenas served by the plaintiff, IEvolve, Inc. ("IEvolve"), upon fourteen (14) of Hickson's customers and suppressing the information improperly obtained through the use of same and requiring IEvolve to disgorge all documents received in response to same; b. An order, pursuant to CPLR §3126(3), dismissing IEvolve's complaint, with prejudice; and 1 of 19 FILED: ERIE COUNTY CLERK 11/08/2022 03:55 PM INDEX NO. 804173/2020 NYSCEF DOC. NO. 55 RECEIVED NYSCEF: 11/08/2022 c. An order extending the discovery completion deadline in the Court's scheduling order, granted March 10, 2022, for a period of six (6) months; and d. An order granting Hickson such other, further and different relief as to the Court seems just, proper and equitable, together with the costs and disbursements of this motion. Brief Background 3. of brief background, IEvolve is an IT services that By way company previously employed Hickson as an IT technician. IEvolve terminated Hickson's employment on July 15, 2019, claiming that his employment was terminated "for cause". 4. Hickson denies that IEvolve had just cause to terminate his employment. Instead, he contends that IEvolve breached his written employment agreement with IEvolve by unlawfully terminating him without a proper factual or legal basis under law or the employment agreement for so, and also failed to pay Hickson the doing compensation he was entitled to be paid up to and subsequent to the date of his termination. 5. Hickson also alleges that IEvolve also breached a related asset purchase agreement between IEvolve and Hickson's wholly-owned IT company, P.C. Business Solutions, Inc. ("P.C. Business"), IEvolve had purchased certain assets of P.C. whereby Business. Pursuant to that asset purchase agreement, IEvolve was required to make 20 quarterly payments to P.C. Business, but failed to make the last two (2) quarterly 2 of 19 FILED: ERIE COUNTY CLERK 11/08/2022 03:55 PM INDEX NO. 804173/2020 NYSCEF DOC. NO. 55 RECEIVED NYSCEF: 11/08/2022 payments that were due on or after the time that Hickson was terminated, totaling $42,106.67. 6. When IEvolve breached these agreements and terminated Hickson, Hickson was free to earn a living in his field, and his long-time customers were free to seek his services after he left IEvolve's employ. Those customers had come to IEvolve with Hickson when Hickson sold assets of P.C. Business to IEvolve. They had no interest in remaining as customers of IEvolve, after Hickson was terminated, and they left and followed him. Hickson had no need to solicit, and did not solicit, those customers. Procedural History 7. IEvolve commenced this action on March 18, 2020 by filing a summons and complaint in the Erie County Clerk's Office. On June 8, 2020, Hickson duly interposed a answer with counterclaims to the complaint, wherein he denied all timely allegations of liability, raised several affirmative defenses and asserted two counterclaims. On October 13, 2020, IEvolve served a timely reply to Hickson's counterclaims, his counterclaims and asserting various purported defenses. denying (True copies of IEvolve's summons and complaint, Hickson's answer with counterclaims and IEvolve's reply are annexed hereto as Exhibits A, B and C, respectively.) 3 of 19 FILED: ERIE COUNTY CLERK 11/08/2022 03:55 PM INDEX NO. 804173/2020 NYSCEF DOC. NO. 55 RECEIVED NYSCEF: 11/08/2022 Discovery Productions by the Parties Relevant to this Motion 8. Hickson has produced detailed reports of all of his sales and invoices to a listof customers identified by IEvolve that he has done business with since being terminated by IEvolve. These customers were customers Hickson brought with him when he went to work for I-Evolve. In addition, Hickson has produced copies of allof his emails to those customers for a requested period of time (consisting of over 2,000 pages of documents), as well as certain other requested documents. Hickson produced those emails in both paper and electronic format. 9. IEvolve has produced Excel versions of the monthly commission statements it issued to Hickson while he was employed by IEvolve. Under his employment agreement, Hickson's compensation was based upon the amount of IT service work he performed and the sales of equipment and other services he made to customers under a commission schedule that provided varying commission levels for different categories of work and/or sales. (A true copy of said commission schedule is annexed hereto as Exhibit D.) Good Faith Efforts at Resolution of Discovery Disputes 10. I prepared and sent various letters and emails to IEvolve's attorney, and have had lengthy discussions with him, over a 3 ½ month period of time, concerning the issues which are the subject of this motion. Unfortunately, these efforts have been unsuccessful in these issues. These letters and of these emails are resolving many annexed hereto as exhibits, and will demonstrate the lengthy and extensive they clearly 4 of 19 FILED: ERIE COUNTY CLERK 11/08/2022 03:55 PM INDEX NO. 804173/2020 NYSCEF DOC. NO. 55 RECEIVED NYSCEF: 11/08/2022 effort I invested in to resolve these disputes and avoid to bother and trying having resort to the Court for a resolution. Relevant Issues Concerning Case 11. Hickson is attempting to determine whether IEvolve properly paid him commissions pursuant to the commission schedule in his employment agreement. For hardware, software and equipment sales, the commission schedule required IEvolve to pay him a percentage of its gross profit on the items. Other categories of commissions were based upon formulas involving total revenues and other factors. 12. In order for Hickson to be able to determine whether IEvolve made proper commission payments to him, IEvolve must produce all of the back-up information and documents it relied upon in preparing the monthly commission statements to Hickson, including all of the information and documents it relied upon in making the representations of itscosts in those monthly commission statements. (See, email from Clack to Coren of 12/15/21, a true copy of which is annexed hereto as Exhibit E.) 13. The commission statements are in the form of Excel program spreadsheets and graphs that cannot be uploaded on the Court's e-filing system so that the Court can see what they consist of. These commission statements contain various calculations and figures that are referenced to other source documents of IEvolve, but the source documents themselves are not included as part of the commission statements. There are no copies documents accessible in these Excel spreadsheets. of any 5 of 19 FILED: ERIE COUNTY CLERK 11/08/2022 03:55 PM INDEX NO. 804173/2020 NYSCEF DOC. NO. 55 RECEIVED NYSCEF: 11/08/2022 14. Hickson has a right to see all of the source documents upon which the commission statements were based, because that is the way he can determine only whether he was properly paid according to his commission schedule with IEvolve. 15. IEvolve's has refused to produce allof the back- Yet, attorney steadfastly up information and documentation that IEvolve relied upon in preparing and issuing its commission statements to Hickson. monthly 16. Itshould be noted that, in contrast to IEvolve's stonewalling in producing these critical relevant documents, Hickson produced literally all of the information and documents requested IEvolve (thousands of pages of information and documents), by even though he believes that there is not a single relevant email among them. In this respect, IEvolve requested all of Hickson's emails to the customers on IEvolve's list for a period commencing 6 ½ months prior to the time he was terminated by IEvolve until (60) days after he issued an invoice to the customer from the business he started sixty after his termination. 17. IEvolve's only legitimate purpose in seeking these emails is to determine whether Hickson solicited his former customers, which IEvolve claims would be a violation of the non-competition provision in his employment agreement, as opposed to the customers Hickson, as Hickson contends occurred. The emails merely following have no other relevance. It is of no relevance exactly what Hickson was saying or doing in connection with his performance of services for these customers. Moreover, as related, he has produced reports all of the income he has generated already showing 6 of 19 FILED: ERIE COUNTY CLERK 11/08/2022 03:55 PM INDEX NO. 804173/2020 NYSCEF DOC. NO. 55 RECEIVED NYSCEF: 11/08/2022 from, and the invoices rendered to, those customers since his termination by IEvolve. Nevertheless, Hickson produced all of these emails, regardless whether they contained of any relevant content. MOTION TO QUASH SUBPOENAS 18. IEvolve has served fourteen (14) subpoenas duces tecum to Hickson's current customers, a group of 2 on 85, 1 on July 295, a group of 7 on serving July September and a of 4 on September 23rd All of these subpoenas are 166, group identical, except some of the later ones request production for a slightly virtually shorter period of time. (True copies of all of the subpoenas, with the cover letters along thereto, are collectively annexed hereto as Exhibit F.) 19. I reviewed the first set of subpoenas served by IEvolve's attorney (the two subpoenas served on Friday, 86), and it was immediately apparent that they were July broad and improper. In addition, IEvolve failed to comply with completely overly CPLR §2303 by tendering the required witness fee along with the subpoenas and also failed to make any offer to the customers to defray the reasonable production expenses the subpoenaed parties incur in complying with the subpoenas, as required by CPLR §3122(d). In addition, each of the subpoenas failed to comply with CPLR §3101(a)(4) by not a statement the "circumstances or reasons such disclosure is including stating required.' sought or 20. I related objections to the subpoenas in an email to IEvolve's promptly my on 12, 2022. (A true of said email is attached as Exhibit G.) Among attorney July copy 7 of 19 FILED: ERIE COUNTY CLERK 11/08/2022 03:55 PM INDEX NO. 804173/2020 NYSCEF DOC. NO. 55 RECEIVED NYSCEF: 11/08/2022 other things, I advised IEvolve's that the subpoenas were to broad. I attorney way pointed out that they called for production of documents for a period from extending 4 ½ years before Hickson was terminated by IEvolve up through the present, which is well over 3 years after his termination. I asked him what right IEvolve had to subpoena Hickson's customers for: (a) everything they are doing with him today, (b) everything they have for a 4 ½ year period before IEvolve even fired him, (c) text messages, which "all" neither of the parties have even been able to produce, and for requests for of (d) "all" this and of that, regardless of relevance. I advised him, for example, that one of the subpoena recipients, the Champiou accounting firm, has 160 employees. 21. I further advised IEvolve's attorney that, if we could not agree to a reasonable scope of production for those two customers, I would be to quash moving the subpoenas. I also advised him that the customers would likely be looking for IEvolve to pay for them to have an IT company search for and produce the items he had requested, because they are not required by law to bear those costs. 22. IEvolve's attorney responded in an email later that day, brushing off these valid and serious objections, stating, "There is no basis for Hickson to quash the subpoenas". (A true copy of this email is annexed hereto as Exhibit H.) He essentially argued that allcommunications between Hickson and the customers the period of during Hickson's employment with IEvolve, and after his termination and to the present up time, are all somehow relevant to IEvolve damages. He further contended that the document requests are not overbroad and "are limited to the provision of IT generally 8 of 19 FILED: ERIE COUNTY CLERK 11/08/2022 03:55 PM INDEX NO. 804173/2020 NYSCEF DOC. NO. 55 RECEIVED NYSCEF: 11/08/2022 services". He also justified the subpoenas by claiming that they were necessary because Hickson had deleted his emails prior to July 15, 2019. 23. However, the truth is that solicitations are relevant, and, ifthere were only any, they would have occurred shortly before or after Hickson's termination on July 15, 2019. Moreover, IEvolve's has been provided with information attorney already concerning all amounts Hickson billed to and was paid by these customers, up to the present. Those amounts would be IEvolve's damages, if, in fact, it proved that Hickson had breached his employment agreement with respect to any of those actually customers. 24. Thus, the recipients of the subpoenas are being asked to produce hordes of irrelevant documents. The issuance of these subpoenas with this scope is a willful and flagrant abuse IEvolve of itsright to issue non-judicial subpoenas upon non- by parties to the case. 25. IEvolve's also stated that neither Hickson, nor his company, attorney should not be engaged to perform the document collection in response to the subpoenas to Hickson's various customers. This would result in costing the subpoenaed obviously parties more to respond to and with the subpoenas, which costs, as money comply previously noted, IEvolve did not offer to defray, as required by CPLR §3122(d). 26. When IEvolve's attorney issued another batch of 7 subpoenas on September 16, 2022, and were in the same broad form as Ihad complained they overly about more than 2 months earlier, I sent IEvolve's a letter, dated September 20, attorney 9 of 19 FILED: ERIE COUNTY CLERK 11/08/2022 03:55 PM INDEX NO. 804173/2020 NYSCEF DOC. NO. 55 RECEIVED NYSCEF: 11/08/2022 2022, explaining in full detail the defects with the subpoenas, including the continued parties' failure to provide a witness fee and an offer to the subpoenaed defray reasonable costs, and asked him to advise as soon as possible if he would promptly cure the deficiencies and objections cited in my letter. (A true of this letter is annexed copy hereto as Exhibit I.) 27. I never received a response to that letter. Instead, IEvolve's attorney issued another batch of 4 similarly overly broad and otherwise improper subpoenas on September 23, 2022.. That is why I am making the present motion. 28. Thus, every one of the 14 subpoenas IEvolve issued over a period of 2 ½ months failed to comply with CPLR §2303 by tendering the required witness fee along with the subpoena. IEvolve's attorney also failed to make any offer in his cover letters to the subpoenas to defray the reasonable production expenses the subpoenaed parties incur in complying with the subpoenas, as per CPLR §3122(d). IEvolve also failed to comply with CPLR §3101(a)(4) by not including a statement describing the reasons" "circumstances or for the sought for discovery. 29. letter of September 20th to IEvolve pointed in full the My out, detail, defects in the subpoenas: "commanded" a. With respect to the of each subpoena, IEvolve body the subpoenaed parties to produce the originals or copies of the documents at its attorneys' offices. However, their obligation under the CPLR is only to make available the documents for inspection and copying, which is commonly done at their own 10 of 19 FILED: ERIE COUNTY CLERK 11/08/2022 03:55 PM INDEX NO. 804173/2020 NYSCEF DOC. NO. 55 RECEIVED NYSCEF: 11/08/2022 offices. They do not have to provide IEvolve with copies of anything. (See, CPLR §3122(d).) b. In each subpoena, IEvolve also knowingly asked for documents that are far beyond the scope of this case. With respect to the subpoena served upon Andreozzi Bluestein LLP, for example, IEvolve commanded production of documents from January 1, 2017 to the present. However, I am advised that Andreozzi Bluestein continued using IEvolve's services until a date late in 2020. So, what justification did IEvolve have to demand them to produce documents dating back to January 1, 2017? Moreover, why do they have to produce documents to the present? What Andreozzi Bluestein is doing with Hickson at the present is of no relevance whatsoever to any issue in this lawsuit. should Andreozzi Bluestein have to go to the trouble of Why producing irrelevant documents for such an unnecessarily sweeping period of time? c. In addition, IEvolve's the subpoena calls for production of text messages. Pursuant to the discussions IEvolve's attorney and I have had in this case, we both know that production of texts would involve a tremendous burden and large expense to a party, let alone a non-party, particularly as the cell phones would likely not be owned by the subpoenaed party. Neither of the parties were even able to produce cell phone texts in this case. So, why was IEvolve making such any burdensome requests on the subpoenaed parties, some of whom have dozens or more of employees? Is IEvolve prepared to pay those costs? 11 of 19 FILED: ERIE COUNTY CLERK 11/08/2022 03:55 PM INDEX NO. 804173/2020 NYSCEF DOC. NO. 55 RECEIVED NYSCEF: 11/08/2022 d. With respect to the specific requests for production, IEvolve communications" demanded "All in paragraph 1, not limited to an appropriate time period as previously indicated and not limited to subject, even though the any only relevant subject is whether business was solicited from Andreozzi Bluestein while Hickson or Gerald Natiella were stillemployed by IEvolve or after ("Natiella") shortly they left IEvolve. There certainly is no justification for asking for records up to the present. e. The same objection applies to paragraph 2. IEvolve asked for "All documents concerning any proposal offer or solicitation . .. for IT Services", even though for the first several years of the requested production period, Hickson and Natiella were employed by IEvolve and solicitations at the present are irrelevant. The only solicitations, ifthere were any, that Andreozzi Bluestein should have to produce should be similar to what the parties agreed to for Hickson and that is up to 60 days after Hickson issued his first invoice to a customer, such as Andreozzi Bluestein. f. Paragraph 3 requests utterly irrelevant documents. Itmakes no difference what services were provided by Hickson, and IEvolve is not entitled to know what services were provided, other than possibly for the initial time period previously referenced. g. Paragraph 4 is also completely objectionable. If any such offers of employment were made to Hickson or Natiella, that is of no relevance to this case. They are free to accept employment as they wish. Also, Hickson has produced to already 12 of 19 FILED: ERIE COUNTY CLERK 11/08/2022 03:55 PM INDEX NO. 804173/2020 NYSCEF DOC. NO. 55 RECEIVED NYSCEF: 11/08/2022 IEvolve information the amounts he has been paid all of the requested showing by customers, including the subpoenaed customers. 30. Some of the subpoenaed customers, through their attorneys, contacted me about limiting the scope of the subpoenas. Since IEvolve's attorney knew full well that the subpoenas are overly broad, I believe he was intentionally harassing Hickson and his customers by continuing to issue new subpoenas in the same overly broad form, thereby requiring each of his customers, one after another, to have to involve their attorneys and/or spend their time trying to negotiate reasonable scopes to the subpoenas. 31. These subpoenas are so overreaching and otherwise so fail to comply with the requirements of the CPLR that they constitute abuses of process. I can only conclude that were intentionally served to harass Hickson's customers and subject they them to unreasonable annoyance and expense. Moreover, some of the recipients of the subpoenas have complied with them, despite not even having been paid a voluntarily witness fee or been offered or paid for any of the costs involved in producing the documents. That has resulted in harassment of them and subjected them to unreasonable annoyance and expense in irrelevant documents that producing totally IEvolve had no right for them to produce. recipients' 32. Moreover, the subpoenas violate not only the privacy rights, but Hickson's privacy rights. IEvolve has absolutely no right to know exactly what 13 of 19 FILED: ERIE COUNTY CLERK 11/08/2022 03:55 PM INDEX NO. 804173/2020 NYSCEF DOC. NO. 55 RECEIVED NYSCEF: 11/08/2022 Hickson is on a day-to-day basis with his various customers, over three years doing after he was terminated by IEvolve. 33. In conclusion, IEvolve's subpoenas should be completely and totally quashed. Moreover, have resulted in IEvolve information they improperly obtaining that has prejudiced a substantial right of the both the subpoenaed third-parties and Hickson. Thus, pursuant to CPLR §3103(c), an order should be entered suppressing the information improperly obtained through the use of the subpoenas and requiring IEvolve to disgorge all documents received in response to same. 34. In view of the foregoing, I respectfully submit that Hickson is entitled to an order, pursuant to CPLR §§2303, 2304 and 3103, quashing the subpoenas and suppressing the information improperly obtained through the use of same and requiring IEvolve to disgorge all documents received in response to same. MOTION FOR DEFAULT JUDGMENT 35. As the Court is aware, Hickson previously had to make a motion to compel production of documents, due to IEvolve's refusal to agree to produce relevant documents. 36. When Hickson made his motion, IEvolve fought extremely hard against producing the back-up documentation to Hickson's monthly commission reports. However, the Court ruled in Hickson's favor on this point, stating that the documents were relevant and had to be produced. This ruling was memorialized in the Courts 14 of 19 FILED: ERIE COUNTY CLERK 11/08/2022 03:55 PM INDEX NO. 804173/2020 NYSCEF DOC. NO. 55 RECEIVED NYSCEF: 11/08/2022 order, dated April 5, 2022, a true of which is annexed hereto as Exhibit J. The copy "ordering" operative paragraph is the third paragraph which states, ORDERED, that the plaintiff produce all back-up information and documentation for all of the plaintiff's commission reports for the defendant for the entire monthly period of his employment with the plaintiff, including any such reports generated after he was terminated by the plaintiff. 37. In the production made by IEvolve in response to this aspect of the Courts order, IEvolve produced a "file . .. which is exported from the IEvolve sales tool". (emphasis (See, e-mail from Coren to Clack, dated August 4, 2022, a true copy added) of which is annexed hereto as Exhibit K.) That file consisted of new copies of Hickson's "tabs" monthly commission reports, in Excel format, wherein in the reports could now be opened which provide further electronic information concerning aspects of the reports. However, this is not what I had requested in my prior motion and is not what "documents" the Court ordered to be produced. It is not at all. It is essentially clearly documents" computer gibberish. The Court ordered "all back-up information and to be produced. There are no documents whatsoever accessible and included in these Excel spreadsheets. 38. IEvolve also produced electronic copies of some actual documents in response to the Courts order. However, most of the documents produced were copies of which IEvolve had also resisted and were also the subject of emails, producing my prior motion, that were produced in response to the second ordering paragraph of the Courts order. 15 of 19 FILED: ERIE COUNTY CLERK 11/08/2022 03:55 PM INDEX NO. 804173/2020 NYSCEF DOC. NO. 55 RECEIVED NYSCEF: 11/08/2022 39. From my perusal of the actual documents produced by IEvolve (which had to be opened one and were as discussed in the October 20th by one, unsearchable, Court conference with Confidential Law Clerk, Darryl Colosi, Esq. and were only reproduced by IEvolve in a usable format a little over a week ago and have not yet been reviewed), itapp