Preview
FILED: ERIE COUNTY CLERK 11/30/2022 06:11 PM INDEX NO. 804173/2020
NYSCEF DOC. NO. 86 RECEIVED NYSCEF: 11/30/2022
Exhibit 6
FILED: ERIE COUNTY CLERK 11/30/2022 06:11 PM INDEX NO. 804173/2020
NYSCEF DOC. NO. 86 RECEIVED NYSCEF: 11/30/2022
Jeffrey D. Coren
From: Richard Clack
Sent: Wednesday, November 3, 2021 2:08 PM
To: 'Darryl J. Colosi (dcolosi@nycourts.gov)'
Cc: Jeffrey D. Coren
Subject: RE: IEvolve, Inc. v. Hickson, Index No. 804173/2020 - 11/4/2021 Conference
Attachments: Coren 7-7-21 Letter.pdf; Coren 7-26-21 E-Mail.pdf; E-Mail String 10-13-21.pdf; Natiella
Subpoena.pdf; Clack Letter Responding to Subpoena.pdf
ATTENTION EXTERNAL EMAIL: Use Caution with attachments and links!
Darryl:
Mr. Coren and I initially agreed that the parties would engage in a limited production of their documents pursuant to the
other party’s notice for production of documents. Pursuant to that preliminary agreement, Mr. Hickson produced a
summary listing of all of his new company’s sales by customer and a detailed listing of sales by customer (showing the
date and amount of each invoice).
After that was accomplished, Mr. Coren and I discussed the further production of documents by both sides. In his e-mail
below, Mr. Coren has addressed only issues pertaining to the production of documents by Mr. Hickson. He has not
addressed the status of the further production of documents that I requested.
As a result of our discussions, Mr. Coren sent me a letter, dated July 7, 2001, which is referenced in his e-mail below. A
copy of this letter is attached hereto. We then had discussions regarding his letter, and we agreed as to what further
documents Mr. Hickson would produce at this time. That agreement was confirmed in Mr. Coren’s e-mail to me, dated
July 26, 2021, which I agreed was accurate in my e-mail of July 28, 2021. These e-mails are also attached.
I have already discussed and communicated with Mr. Coren on the issues he raises in his e-mail below. The substance of
these discussions is summarized to some degree in the attached e-mail string ending on October 13, 2021, which is also
attached.
Addressing Mr. Coren's numbered points below, please be advised as follows:
1. Mr. Hickson has produced all of the requested documents, and he produced them in paper form. These
documents largely consisted of e-mails, by customer, ending two months after Mr. Hickson’s company first billed the
customer. Therefore, Mr. Hickson had to review all of his e-mails to find the applicable e-mails. This was a very tedious
process, and he printed e-mails as he underwent this process. Moreover, a printed e-mail shows the exact same
“metadata” as a PDF version of the e-mail, as can be seen from the e-mails attached hereto. Thus, I do not understand
Mr. Coren's point on this issue, and it is a point that we discussed extensively. Moreover, Mr. Coren did not request that
the documents be produced in electronic format, and he can obviously convert them to electronic format by scanning
them himself.
In addition, the only relevance of these e-mails is whether thy show that Mr. Hickson had solicited the
customers, as opposed to the customers having followed him to his new business. As you may recall, these customers
had been longtime customers of Mr. Hickson, and he took them with him when he sold certain assets of his business to
I-Evolve. I-Evolve chose to terminate Mr. Hickson prior to the expiration of his employment contract, and, as a result,
Mr. Hickson formed a new business and his long-time customers followed him to his new business, as I-Evolve certainly
should have expected. Mr. Coren has not indicated that any of these e-mail evidence any solicitation on the part of
1
FILED: ERIE COUNTY CLERK 11/30/2022 06:11 PM INDEX NO. 804173/2020
NYSCEF DOC. NO. 86 RECEIVED NYSCEF: 11/30/2022
Mr. Hickson. Therefore, none of these e-mails may be relevant to any issue in this case. It is of no relevance what Mr.
Hickson was doing with the customers after he was terminated by I-Evolve, if they do not involve a solicitation.
2. Mr. Coren complains that the e-mails that were produced by Mr. Hickson did not have the
attachments. For the reasons already discussed, none of these attachments may have any relevance to any issue in this
case, since the underlying e-mails may be totally irrelevant to this case. Nevertheless, in an e-mail string ending on
October 13, 2021, a copy of which is attached, I advised Mr. Coren that Mr. Hickson could print all of the attachments to
the e-mails and provide them to him, if he really wanted them. However, he never responded to that e-mail.
3. I already addressed this issue with Mr. Coren. Mr. Hickson has produced all e-mails in his possession for
the relevant time periods. I advised Mr. Coren that Mr. Hickson advised me that he started “fresh" with e-mails in his
new company and does not have any earlier e-mails. However, the vast majority of the time he was employed by I-
Evolve, e-mails that he received from, or sent to, customers under his own e-mail address were automatically forwarded
to I-Evolve, and thus I-Evolve already has most of those e-mails.
Mr. Coren also complains that the e-mails that were produced were only from or received by Mr. Hickson
himself, and not by his employee, Gerald Natiella. The reason for that is that Mr. Coren previously served a subpoena
upon Mr. Natiella, and I had responded to the subpoena on his behalf. Copies of this subpoenas and of my letter in
response are also attached. After I advised Mr. Coren that Mr. Natiella would produce the documents which were
responsive to the subpoena at an agreeable location, date and time after entry of a suitable Commercial Division
stipulated confidentiality order, I never heard any further from Mr. Coren concerning those documents. I thought that
they were a dead issue.
In addition, Mr. Natiella also went to work at I-Evolve with Mr. Hickson when I-Evolve purchased certain assets
of Mr. Hickson’s business, but Mr. Natiella did not leave I-Evolve until September 17, 2020, which was well over a year
after Mr. Hickson had been terminated by I-Evolve on July 15, 2019. Obviously, e-mails from that late date would have
no relevance to this case, since Mr. Hickson was already doing business with all the customers in question.
I believe Mr. Hickson has fully complied with the agreement I reached with Mr. Coren, as reflected in his e-mail to me of
July 26, 2021.
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, November 3, 2021 11:46 AM
To: 'Darryl J. Colosi'
Cc: Richard Clack
Subject: IEvolve, Inc. v. Hickson, Index No. 804173/2020 - 11/4/2021 Conference
Darryl,
We represent plaintiff I-Evolve. In advance of the November 4 conference, we write to advise the Court concerning
discovery disputes related to deficiencies in defendant’s document production.
2
FILED: ERIE COUNTY CLERK 11/30/2022 06:11 PM INDEX NO. 804173/2020
NYSCEF DOC. NO. 86 RECEIVED NYSCEF: 11/30/2022
As you may recall, defendant is a former employee of I-Evolve, and this case primarily concerns defendant’s breach of
non-compete/non-solicitation provisions in his employment agreement.
In July 2021, following months of discussion between counsel, the parties agreed to narrow the set of documents
responsive to I-Evolve’s document requests to include communications between defendant and 52 specified current or
former I-Evolve customers beginning on January 1, 2019.
On September 1, 2021, defendant produced a box of approximately 2,330 pages of documents. Despite the fact that
defendant works as an IT consultant, defendant’s production consisted of printed emails. The documents were not
produced in electronic format, and therefore do not contain any of the standard metadata fields, such as date, sender,
recipient, and subject.
I-Evolve raised several issues concerning defendant’s production, including:
(1) The documents were not produced in electronic format or with any metadata. As a result, I-Evolve cannot
determine whether the documents are responsive to its requests. For instance, I-Evolve cannot always
determine the customer based on the sender/recipient of an email, or sort the correspondence by date.
Although the parties did not enter into a formal ESI protocol, producing this basic ESI metadata is customary in
this type of commercial case, especially when performing a comprehensive electronic search with respect to 52
customers. Defendant has refused to reproduce the emails in electronic format with metadata.
(2) Defendant’s production appears to be missing virtually all of the email attachments, whether those
attachments appear in the middle of an email chain or attached to the final email. The production is, therefore,
incomplete. Defendant has offered to print the email attachments and produce them in hard copy, which
presents the same issue regarding metadata. Further, it is unclear whether this offer relates to attachments for
all emails in the chain.
(3) Defendant’s production does not appear to include a single email prior to August 2019. Defendant claims this
is because his client deleted those emails prior to the start of litigation.
(4) In its document requests, I-Evolve requested all communications to/from Mr. Hickson and any employee or
agent of Mr. Hickson. Defendant, however, did not search the email records for any custodian except for Mr.
Hickson, despite the fact that Mr. Hickson’s employees are copied on some emails. Defendant contends that I-
Evolve’s proposal to narrow the set of responsive documents did not include searching other employees.
We respectfully request the Court’s assistance in resolving these discovery disputes at the November 4 conference. In
addition, in light of these discovery issues (and the trial schedules for both counsel), we request an extension of the
deadline to complete party depositions.
Respectfully,
Jeffrey Coren
Jeffrey D. Coren
Senior Associate
PhillipsLytle LP
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
3
FILED: ERIE COUNTY CLERK 11/30/2022 06:11 PM INDEX NO. 804173/2020
NYSCEF DOC. NO. 86 RECEIVED NYSCEF: 11/30/2022
Thft before you pdol ad no
a hoe.
This electronic transmission and any attachments hereto are intended only for the use of the individual or entity to which it is addressed and
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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.
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Preview
FILED: ERIE COUNTY CLERK 11/30/2022 06:11 PM INDEX NO. 804173/2020 NYSCEF DOC. NO. 86 RECEIVED NYSCEF: 11/30/2022 Exhibit 6 FILED: ERIE COUNTY CLERK 11/30/2022 06:11 PM INDEX NO. 804173/2020 NYSCEF DOC. NO. 86 RECEIVED NYSCEF: 11/30/2022 Jeffrey D. Coren From: Richard Clack Sent: Wednesday, November 3, 2021 2:08 PM To: 'Darryl J. Colosi (dcolosi@nycourts.gov)' Cc: Jeffrey D. Coren Subject: RE: IEvolve, Inc. v. Hickson, Index No. 804173/2020 - 11/4/2021 Conference Attachments: Coren 7-7-21 Letter.pdf; Coren 7-26-21 E-Mail.pdf; E-Mail String 10-13-21.pdf; Natiella Subpoena.pdf; Clack Letter Responding to Subpoena.pdf ATTENTION EXTERNAL EMAIL: Use Caution with attachments and links! Darryl: Mr. Coren and I initially agreed that the parties would engage in a limited production of their documents pursuant to the other party’s notice for production of documents. Pursuant to that preliminary agreement, Mr. Hickson produced a summary listing of all of his new company’s sales by customer and a detailed listing of sales by customer (showing the date and amount of each invoice). After that was accomplished, Mr. Coren and I discussed the further production of documents by both sides. In his e-mail below, Mr. Coren has addressed only issues pertaining to the production of documents by Mr. Hickson. He has not addressed the status of the further production of documents that I requested. As a result of our discussions, Mr. Coren sent me a letter, dated July 7, 2001, which is referenced in his e-mail below. A copy of this letter is attached hereto. We then had discussions regarding his letter, and we agreed as to what further documents Mr. Hickson would produce at this time. That agreement was confirmed in Mr. Coren’s e-mail to me, dated July 26, 2021, which I agreed was accurate in my e-mail of July 28, 2021. These e-mails are also attached. I have already discussed and communicated with Mr. Coren on the issues he raises in his e-mail below. The substance of these discussions is summarized to some degree in the attached e-mail string ending on October 13, 2021, which is also attached. Addressing Mr. Coren's numbered points below, please be advised as follows: 1. Mr. Hickson has produced all of the requested documents, and he produced them in paper form. These documents largely consisted of e-mails, by customer, ending two months after Mr. Hickson’s company first billed the customer. Therefore, Mr. Hickson had to review all of his e-mails to find the applicable e-mails. This was a very tedious process, and he printed e-mails as he underwent this process. Moreover, a printed e-mail shows the exact same “metadata” as a PDF version of the e-mail, as can be seen from the e-mails attached hereto. Thus, I do not understand Mr. Coren's point on this issue, and it is a point that we discussed extensively. Moreover, Mr. Coren did not request that the documents be produced in electronic format, and he can obviously convert them to electronic format by scanning them himself. In addition, the only relevance of these e-mails is whether thy show that Mr. Hickson had solicited the customers, as opposed to the customers having followed him to his new business. As you may recall, these customers had been longtime customers of Mr. Hickson, and he took them with him when he sold certain assets of his business to I-Evolve. I-Evolve chose to terminate Mr. Hickson prior to the expiration of his employment contract, and, as a result, Mr. Hickson formed a new business and his long-time customers followed him to his new business, as I-Evolve certainly should have expected. Mr. Coren has not indicated that any of these e-mail evidence any solicitation on the part of 1 FILED: ERIE COUNTY CLERK 11/30/2022 06:11 PM INDEX NO. 804173/2020 NYSCEF DOC. NO. 86 RECEIVED NYSCEF: 11/30/2022 Mr. Hickson. Therefore, none of these e-mails may be relevant to any issue in this case. It is of no relevance what Mr. Hickson was doing with the customers after he was terminated by I-Evolve, if they do not involve a solicitation. 2. Mr. Coren complains that the e-mails that were produced by Mr. Hickson did not have the attachments. For the reasons already discussed, none of these attachments may have any relevance to any issue in this case, since the underlying e-mails may be totally irrelevant to this case. Nevertheless, in an e-mail string ending on October 13, 2021, a copy of which is attached, I advised Mr. Coren that Mr. Hickson could print all of the attachments to the e-mails and provide them to him, if he really wanted them. However, he never responded to that e-mail. 3. I already addressed this issue with Mr. Coren. Mr. Hickson has produced all e-mails in his possession for the relevant time periods. I advised Mr. Coren that Mr. Hickson advised me that he started “fresh" with e-mails in his new company and does not have any earlier e-mails. However, the vast majority of the time he was employed by I- Evolve, e-mails that he received from, or sent to, customers under his own e-mail address were automatically forwarded to I-Evolve, and thus I-Evolve already has most of those e-mails. Mr. Coren also complains that the e-mails that were produced were only from or received by Mr. Hickson himself, and not by his employee, Gerald Natiella. The reason for that is that Mr. Coren previously served a subpoena upon Mr. Natiella, and I had responded to the subpoena on his behalf. Copies of this subpoenas and of my letter in response are also attached. After I advised Mr. Coren that Mr. Natiella would produce the documents which were responsive to the subpoena at an agreeable location, date and time after entry of a suitable Commercial Division stipulated confidentiality order, I never heard any further from Mr. Coren concerning those documents. I thought that they were a dead issue. In addition, Mr. Natiella also went to work at I-Evolve with Mr. Hickson when I-Evolve purchased certain assets of Mr. Hickson’s business, but Mr. Natiella did not leave I-Evolve until September 17, 2020, which was well over a year after Mr. Hickson had been terminated by I-Evolve on July 15, 2019. Obviously, e-mails from that late date would have no relevance to this case, since Mr. Hickson was already doing business with all the customers in question. I believe Mr. Hickson has fully complied with the agreement I reached with Mr. Coren, as reflected in his e-mail to me of July 26, 2021. 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, November 3, 2021 11:46 AM To: 'Darryl J. Colosi' Cc: Richard Clack Subject: IEvolve, Inc. v. Hickson, Index No. 804173/2020 - 11/4/2021 Conference Darryl, We represent plaintiff I-Evolve. In advance of the November 4 conference, we write to advise the Court concerning discovery disputes related to deficiencies in defendant’s document production. 2 FILED: ERIE COUNTY CLERK 11/30/2022 06:11 PM INDEX NO. 804173/2020 NYSCEF DOC. NO. 86 RECEIVED NYSCEF: 11/30/2022 As you may recall, defendant is a former employee of I-Evolve, and this case primarily concerns defendant’s breach of non-compete/non-solicitation provisions in his employment agreement. In July 2021, following months of discussion between counsel, the parties agreed to narrow the set of documents responsive to I-Evolve’s document requests to include communications between defendant and 52 specified current or former I-Evolve customers beginning on January 1, 2019. On September 1, 2021, defendant produced a box of approximately 2,330 pages of documents. Despite the fact that defendant works as an IT consultant, defendant’s production consisted of printed emails. The documents were not produced in electronic format, and therefore do not contain any of the standard metadata fields, such as date, sender, recipient, and subject. I-Evolve raised several issues concerning defendant’s production, including: (1) The documents were not produced in electronic format or with any metadata. As a result, I-Evolve cannot determine whether the documents are responsive to its requests. For instance, I-Evolve cannot always determine the customer based on the sender/recipient of an email, or sort the correspondence by date. Although the parties did not enter into a formal ESI protocol, producing this basic ESI metadata is customary in this type of commercial case, especially when performing a comprehensive electronic search with respect to 52 customers. Defendant has refused to reproduce the emails in electronic format with metadata. (2) Defendant’s production appears to be missing virtually all of the email attachments, whether those attachments appear in the middle of an email chain or attached to the final email. The production is, therefore, incomplete. Defendant has offered to print the email attachments and produce them in hard copy, which presents the same issue regarding metadata. Further, it is unclear whether this offer relates to attachments for all emails in the chain. (3) Defendant’s production does not appear to include a single email prior to August 2019. Defendant claims this is because his client deleted those emails prior to the start of litigation. (4) In its document requests, I-Evolve requested all communications to/from Mr. Hickson and any employee or agent of Mr. Hickson. Defendant, however, did not search the email records for any custodian except for Mr. Hickson, despite the fact that Mr. Hickson’s employees are copied on some emails. Defendant contends that I- Evolve’s proposal to narrow the set of responsive documents did not include searching other employees. We respectfully request the Court’s assistance in resolving these discovery disputes at the November 4 conference. In addition, in light of these discovery issues (and the trial schedules for both counsel), we request an extension of the deadline to complete party depositions. Respectfully, Jeffrey Coren Jeffrey D. Coren Senior Associate PhillipsLytle LP 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 3 FILED: ERIE COUNTY CLERK 11/30/2022 06:11 PM INDEX NO. 804173/2020 NYSCEF DOC. NO. 86 RECEIVED NYSCEF: 11/30/2022 Thft before you pdol ad no a hoe. 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