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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 opposition to the cross-motion of the plaintiff,
IEvolve, Inc. ("IEvolve"), for "spoliation sanctions", seeking the striking of Hickson's
answer and counterclaims and the entry of judgment in favor of IEvolve on its claims
under CPLR §3126.
3. I also make this affidavit in further support of Hickson's motion for an
order quashing the subpoenas IEvolve served upon Hickson's customers and
suppressing the information improperly obtained through the use of those subpoenas
and requiring IEvolve to disgorge all documents received in response to them; an order
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dismissing IEvolve's complaint, with prejudice; and an order the
extending discovery
completion deadline for a period of six (6) months.
sanctions"
4. Preliminarily, IEvolvé's cross-motion for "spoliation is
premature. The parties have not even completed documents,
completely exchanging
and no depositions have yet been conducted. There is no factual or
simply evidentiary
sanctions"
basis for IEvolve to seriously claim that it isentitled to "spoliation at this
juncture of the litigation, based upon the claims being made in its cross-motion.
5. It appears that the real reason IEvolve made this cross-motion at this time
was to divert the Court's attention from the substance of Hickson's motion by devoting
the vast majority of its papers to lengthy assertions and explanations of claimed
wrongdoing on the part of Hickson, rather than to responding to Hickson's motion.
These assertions of wrongdoing are littlemore than reiterations of the allegations in the
complaint, which were denied by Hickson in his answer, and are disputed issues of fact.
6. I will address Hickson's motion and then IEvolve's cross-
Thus, first,
motion.
Hickson's Motion to Quash
7. In its response to Hickson's motion, IEvolve argues that Hickson's motion
to quash its subpoenas duces tecum is "untimely and largely moot", because it"wasn't
made promptly". (Plaintiff's Memorandum of Law ("Memorandum") at 2, 17-18) This
baseless contention ignores the showing I made in my prior affidavit in support of
Hickson's motion that I spent 3 ½ months trying to get IEvolve to voluntarily properly
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limit itssubpoenas to and avoid to involve and burden the Court with
try having
resolving this dispute. However, IEvolve refused to limit its subpoenas, and, in fact, its
did not even respond to letter of September the
attorney my lengthy 20, 2022, detailing
improper aspects of the subpoenas. Under these circumstances, Hickson's motion is
certainly not "untimely", and the issues concerning the subpoenas are not
certainly
"largely moot".
8. IEvolve goes on to argue that Hickson failed to meet a claimed burden to
irrelevant"
demonstrate that the subpoenas only sought "utterly information.
(Memorandum at 18) There is no such burden, and that is not the standard and not the
issue.
9. The issue is that IEvolve's subpoenas were abusively overbroad. They
years'
required Hickson's customers to, among other things, produce several worth of
e-mails relating to all of the IT services Hickson had performed for them while he was
functioning as an employee of, and for, IEvolve, even though IEvolve had all of
already
those e-mails. They also required the customers to produce all of their e-mails as to
what Hickson is doing for them up to the present time, even though he was terminated
by IEvolve almost 3 ½ years ago, and what he is doing for his customers at the present
time is utterly irrelevant to any issue in this case.
10. Thus, IEvolve's subpoenas were anything but "targeted", as it claims.
IEvolve did not limit its requests to e-mails wherein Hickson
supposedly solicited work
on his own behalf, rather than on IEvolve's behalf. It requested all e-mails, relating to
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all of the work that he had done for these customers, for years and years, without
regard to as detailed in prior affidavit.
relevance, my
11. IEvolve also claims that it was not required to provide witness fees to the
subpoenaed parties, because its subpoenas duces tecum did not compel a witness to
attend a deposition or hearing1. (Memorandum at 20) That is simply not true. The
subpoenas explicitly commanded the subpoenaed parties to produce all of the
subpoenaed documents at the offices of IEvolve's attorneys, and the cover letters to the
subpoenas did not instruct otherwise. (See, subpoenas and cover Ex. F to
letters, my
prior affidavit.)
12. Even if,with respect to some of the subpoenas, IEvolve's ended
attorney
up not the subpoenaed to appear at his office, as required IEvolve's
requiring party by
subpoena, a witness fee was still required. In addition, the subpoenaed parties were
also entitled to defrayment of their expenses in with the subpoenas,
complying
pursuant to the mandatory requirement of CPLR §3122(d). Rather than being required
attorneys'
to only appear at IEvolve's offices with their original documents, were
they
abusively and more onerously required to provide IEvolve with copies of all of the
1 IEvolve cites solely toMatter of BU-91-04-1356A, 186 A.D.2d 1054, 588 N.Y.S.2d 954 (4th Dept. 1992), in
support of thiscontention. However, that case is easily distinguishable from facts of the case at bar.
There, the subpoenaed party was a physician-party being investigated by the State Board of Professional
Medical Conduct. The subpoena commanded only the production of medical records for fiveof his
patients at the Board's localoffice, and the Court found that, "the Board, under that circumstance, isnot
expenses."
obliged to pay the statutory witness fee or mileage (emphasis added) (186 A.D.2d at 1054)
Here, non-parties to this case have been subpoenaed to produce extensive records. They are entitled to the
benefits and protection of the normal statutory requirements spelled-out in the CPLR provisions cited in
support of Hickson's motion. Itshould alsobe noted thatno other published case has cited to thiscase in
the 30 years since itwas decided.
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requested documents, at their own expense, a requirement and burden that they simply
"provide"
do not have. They do not have to anything. They are merely obligated to
"produce"
the documents for inspection and copying, as set forth in my prior
already
affidavit. As also indicated in my prior affidavit, IEvolve made no offer to defray the
parties'
subpoenaed costs in producing the documents, even though CPLR §3122(d)
non-parties'
requires ("shall") the issuing the subpoenas to the subpoenaed
party defray
expenses in complying with the subpoenas.
13. As previously noted, IEvolve also argues that Hickson's motion to quash
moot"
the subpoenas is "largely because some of the subpoenaed parties responded to
the subpoenas. (Memorandum at 2, 17-18) However, the fact that some of Hickson's
customers complied with improperly overbroad subpoenas without
unknowingly being
paid a witness fee or being advised of their right to have their costs defrayed hardly
legitimizes the subpoenas. Rather, it iswhy Hickson moved for an order requiring
IEvolve to disgorge the documents that were produced and suppressing them from
used in this case.
being
14. IEvolve could have issued proper subpoenas, supported witness fees
by
non-parties'
and offers to the subpoenaed costs, which were targeted and limited
defray
to requesting documents that were relevant to the issues in this case, rather than
harassing them with subpoenas requiring them to produce hordes of irrelevant
documents, at their own expense. However, IEvolve chose to do otherwise, and that is
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why the subpoenas should be quashed and the fruits of the subpoenas
completely
disgorged and not be allowed to be used in this case.
Hickson's Motion for Default Judgment
15. In its response to Hickson's motion, IEvolve continues its steadfast refusal
to produce the documents that this Court ordered IEvolve to produce in its
clearly
order of April 5, 2022. This Court ordered IEvolve to produce all information and
back-up
documentation for Hickson's commission reports. Ex. to prior
monthly (Order, J my
affidavit)
16. IEvolve repeatedly states in itspapers that it produced 20,000 pages of
documents in response to the Court's order. However, the 20,000 pages of documents it
produced have almost nothing to do with its obligation to produce the back-up
information and documentation to Hickson's monthly commission reports. The only
back-up documents to the monthly commission reports that IEvolve produced in those
20,000 pages were copies of IEvolve's invoices to the customers, which were never at
issue.
17. IEvolve relies upon the affidavit of its CEO, David Meller, to attempt to
justify its failure to produce the required back-up information and documentation.
Meller explains how something he refers to as, IEvolve's "sales tool", works. (Meller
tool"
Aff., 127) He states that this "sales is integrated directly with "its products
Micro."
vendor, Ingram (Meller Aff., 127) He explains that, "when I-Evolve submits a
request for a quote from Ingram Micro", the request goes to Ingram Micro and then
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"populates"
Ingram Micro the sales tool "with the quoted cost for I-Evolve", and then
"calculates the customer sales price and the profit for the sale, into account a
taking
mark-up." 'paper'
standard (Meller Aff., 127) He then states, "There is no record for
the gross profit calculation of the sale", and ends that, instead of
up saying producing
"export"
paper records, IEvolve produced an from this "sales tool". (Meller Aff., 127)
18. However, it isimportant to recognize what Meller is careful not to say.
vendor"
Meller does not say that IEvolve's only "products is Ingram Micro, because it
has other vendors. Also, as he says, the process he describes occurs when IEvolve
"requests a quote from Ingram Micro". However, he does not that IEvolve always
say
asks for quotes from Ingram Micro before a customer or that all quotes
quoting
obtained from Ingram Micro are requested this "sales tool". In addition,
utilizing
tool"
Meller does not indicate whether the software for the "sales can be manipulated,
altered or programmed by IEvolve.
19. Most significantly, Meller does not that IEvolve does not receive paper
say
invoices and other documents from Ingram Micro and its other vendors in connection
with purchases IEvolve makes from them or that any electronic versions of such
documents are not received and cannot be printed and produced. He is very careful to
'paper'
narrowly state that, "There is no record for the gross profit calculation of the
only
quoted sale", not that there are no paper records to the sale itself. (emphasis
relating
added) (Meller Aff., ¶27)
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20. Hickson advises me that IEvolve purchases hardware and software from
various vendors, not just Ingram Micro. Moreover, in each of Hickson's monthly
commission reports, there are thousands of links and references to sources of
literally
information. Thus, it is that there are thousands and thousands of documents,
likely
both paper and electronic, that back-up these monthly commission reports or the sales
that are reflected in them. Yet, IEvolve has produced virtually nothing. It has not even
produced folders of documents maintained by IEvolve's accounting department
any
relative to Hickson's commission payments. Surely, IEvolve has documents backing up
these sales, and yet none were produced.
21. The Court's order of April 5, 2022 was prepared and granted after the
Court had made it very clear during oral argument and in giving its decision
the motion as to what it was and IEvolve to produce -
concerning expecting requiring
all information and documentation itpossessed that backed-up the monthly
commission reports, copies of physical files and all information and
including
documentation that was relevant as to how the commissions had been calculated. And
yet, IEvolve chose to produce nothing, other than IEvolve's invoices to the
absolutely
customers, which were never at issue.
22. It is clear that IEvolve has intentionally failed to comply with this Court's
order of April 5, 2022, and thus the Court is justified in imposing the sanction of
fully
dismissal for done so. Hickson had to go to the trouble of fighting these issues
having
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with IEvolve, then had to make his initial motion to obtain the Court's order, and now
has had to fight this same issue all over again.
Hickson's Motion for Extending Completion Deadline
Discovery
23. Although IEvolve's attorney also seeks a reasonable extension of the
Court's discovery completion date, he states in his responding papers that Hickson "has
needlessly delayed the completion of through tactics and
discovery dilatory discovery
motions."
(Memorandum at 23) Consequently, in considering this aspect of Hickson's
motion, itis important for the Court to know that the 20,000 documents produced
by
IEvolve in response to the Court's order of April 5, 2022 were originally intentionally
produced by IEvolve in a form wherein could not be utilized Hickson. Itturned
they by
out that they had been processed, altered and produced IEvolve's
by e-discovery
vendor for use with a proprietary document review platform that IEvolve's law firm
has and utilizes, but that IEvolve's attorney had no reason to believe that either I or
Hickson had or had access to. I made numerous attempts, unsuccessfully, to try to
access and utilize these documents in the formats in which they were produced. Then, I
went through a lengthy process with IEvolve's attorney repeatedly that
requesting
IEvolve re-produce the documents in a useable form and explaining why were not
they
in a usable form.
24. It was only after a conference was held on October 20, 2022 with the
Court's Confidential Law Clerk, Darryl Colosi, Esq., wherein my inability to use these
documents had been discussed, that IEvolve re-produced the documents in the form I
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had been requesting. What transpired was that, during the conference, Mr. Colosi
stated that Your Honor would come to my office to see whether the documents could be
accessed and utilized. When he said that, IEvolve's attorney conceded that Your Honor
would not be able to utilize them and said that he would speak again with IEvolve's e-
discovery consultant. Later that day, he called and advised me that IEvolve's
consultant had found a to re-produce the documents in the manner I
suddenly way
been requesting for months. Prior to that time, I had been consistently told that it could
not be done.
25. Thus, it was IEvolve, and not Hickson, who caused the delays in
discovery, and that is why Hickson deserves, and the Court is justified in granting, an
additional six (6) months within which to complete discovery. Hickson did not have
any usable documents from IEvolve pursuant to the Court's order of April 5, 2022 until
October 27, 2022, almost seven months later, and, even then, he stilldid not receive the
back-up documentation to the monthly commission reports which were also ordered to
be produced the Court's order of April 5, 2022.
by
IEvolve's Motion for Spoliation Sanctions
sanctions"
26. IEvolve's cross-motion for "spoliation is based solely upon
statements I made to IEvolve's attorney in response to questions he had asked about
Hickson's document production. After Hickson had produced all of the documents in
his possession that he had voluntarily agreed to produce by agreement with IEvolve's
attorney (which agreement was reflected in the Court's order of April 5, 2022), IEvolve's
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attorney advised me that there were no e-mails prior to July 15, 2019, which was the
date IEvolve had terminated Hickson. I responded that Hickson did not have access to
"fresh"
his e-mails prior to July 15, 2019, because he had deleted them and started when
he commenced his new business after
being
terminated by IEvolve.
27. As previously noted, there have been no depositions to date in this case,
and thus there has been no testimony by Hickson or anyone else as to the circumstances
under which, and the reasons why, the e-mails had been deleted. Therefore, IEvolve
cannot even begin to claim that it has a basis for making a motion for "spoliation
sanctions"
at this time. In itsMemorandum, IEvolve cites that a sanctions
party seeking
for spoliation of evidence must show, other things, that the control
among party having
over the evidence possessed an obligation to preserve it at the time of its destruction.
(Memorandum at 12) Yet, IEvolve concedes that itdoes even know when the e-mails
were deleted. (Memorandum at 13) Moreover, IEvolve concedes that itdid not issue a
letter"
litigation "hold until more than a year after Hickson was terminated and was
conducting his new business. (Coren Aff., 14) Thus, IEvolve cannot prove that Hickson
possessed an obligation to preserve his e-mails at the time they were deleted, let alone
prove the other elements for a spoliation sanction at this time. Accordingly, IEvolve's
cross-motion should be denied as being totally premature at this point in time.
28. Also, it is important to note that IEvolve bases its cross-motion
cynically
for "spoliation sanctions", in part, upon the fact that, when it came time to produce the
text messages he had voluntarily agreed to produce, Hickson realized that his text
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messages, and those of his employee, Gerald Natiella, had not been migrated to their
new cell phones when he and Mr. Natiella had gotten new phones.
29. The reason this is cynical is that IEvolve failed to advise the Court that
IEvolve itself had been Court ordered to produce its text messages, after resisting
production of itstexts (even though Hickson had previously voluntarily agreed to
produce his texts), and it was similarly unable to do so for precisely the same reasons as
Hickson. IEvolve's attorney, after failing to produce any texts from IEvolve employees,
advised that the employees for whom IEvolve was required to produce texts no longer
had the same cell phones, thereby indirectly admitting that, when they got new cell
phones, their text messages were not migrated to their new phones.
Conclusion
30. For the foregoing reasons, as well as the reasons set forth in my previous
affidavit in support of Hickson's motion, Hickson requests this Honorable Court to
grant:
a. An order denying IEvolve's cross-motion in all respects;
b. An order, pursuant to CPLR §§2303, 2304 and 3103, quashing the
subpoenas served IEvolve upon Hickson's customers and suppressing the
by
information improperly obtained through the use of those subpoenas and
requiring
IEvolve to disgorge all documents received in response to the subpoenas;
c. An order, pursuant to CPLR §3126(3), dismissing IEvolve's
complaint, with prejudice;
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d. An order extending the
discovery
completion deadline for a period
of six (6) months; and
e. 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.
RICHARD A. CLACK
Sworn to before me this
day of December, 2022
HEATHER M. BAUMEISTER
NotaryPublic,Stateof New York
Reg.No. 02BA6403845
in Erie County
Qualified
Commission ExpiresFebruary3,20
Notary Public
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Preview
FILED: ERIE COUNTY CLERK 12/14/2022 04:46 PM INDEX NO. 804173/2020 NYSCEF DOC. NO. 94 RECEIVED NYSCEF: 12/14/2022 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 opposition to the cross-motion of the plaintiff, IEvolve, Inc. ("IEvolve"), for "spoliation sanctions", seeking the striking of Hickson's answer and counterclaims and the entry of judgment in favor of IEvolve on its claims under CPLR §3126. 3. I also make this affidavit in further support of Hickson's motion for an order quashing the subpoenas IEvolve served upon Hickson's customers and suppressing the information improperly obtained through the use of those subpoenas and requiring IEvolve to disgorge all documents received in response to them; an order 1 of 13 FILED: ERIE COUNTY CLERK 12/14/2022 04:46 PM INDEX NO. 804173/2020 NYSCEF DOC. NO. 94 RECEIVED NYSCEF: 12/14/2022 dismissing IEvolve's complaint, with prejudice; and an order the extending discovery completion deadline for a period of six (6) months. sanctions" 4. Preliminarily, IEvolvé's cross-motion for "spoliation is premature. The parties have not even completed documents, completely exchanging and no depositions have yet been conducted. There is no factual or simply evidentiary sanctions" basis for IEvolve to seriously claim that it isentitled to "spoliation at this juncture of the litigation, based upon the claims being made in its cross-motion. 5. It appears that the real reason IEvolve made this cross-motion at this time was to divert the Court's attention from the substance of Hickson's motion by devoting the vast majority of its papers to lengthy assertions and explanations of claimed wrongdoing on the part of Hickson, rather than to responding to Hickson's motion. These assertions of wrongdoing are littlemore than reiterations of the allegations in the complaint, which were denied by Hickson in his answer, and are disputed issues of fact. 6. I will address Hickson's motion and then IEvolve's cross- Thus, first, motion. Hickson's Motion to Quash 7. In its response to Hickson's motion, IEvolve argues that Hickson's motion to quash its subpoenas duces tecum is "untimely and largely moot", because it"wasn't made promptly". (Plaintiff's Memorandum of Law ("Memorandum") at 2, 17-18) This baseless contention ignores the showing I made in my prior affidavit in support of Hickson's motion that I spent 3 ½ months trying to get IEvolve to voluntarily properly 2 of 13 FILED: ERIE COUNTY CLERK 12/14/2022 04:46 PM INDEX NO. 804173/2020 NYSCEF DOC. NO. 94 RECEIVED NYSCEF: 12/14/2022 limit itssubpoenas to and avoid to involve and burden the Court with try having resolving this dispute. However, IEvolve refused to limit its subpoenas, and, in fact, its did not even respond to letter of September the attorney my lengthy 20, 2022, detailing improper aspects of the subpoenas. Under these circumstances, Hickson's motion is certainly not "untimely", and the issues concerning the subpoenas are not certainly "largely moot". 8. IEvolve goes on to argue that Hickson failed to meet a claimed burden to irrelevant" demonstrate that the subpoenas only sought "utterly information. (Memorandum at 18) There is no such burden, and that is not the standard and not the issue. 9. The issue is that IEvolve's subpoenas were abusively overbroad. They years' required Hickson's customers to, among other things, produce several worth of e-mails relating to all of the IT services Hickson had performed for them while he was functioning as an employee of, and for, IEvolve, even though IEvolve had all of already those e-mails. They also required the customers to produce all of their e-mails as to what Hickson is doing for them up to the present time, even though he was terminated by IEvolve almost 3 ½ years ago, and what he is doing for his customers at the present time is utterly irrelevant to any issue in this case. 10. Thus, IEvolve's subpoenas were anything but "targeted", as it claims. IEvolve did not limit its requests to e-mails wherein Hickson supposedly solicited work on his own behalf, rather than on IEvolve's behalf. It requested all e-mails, relating to 3 of 13 FILED: ERIE COUNTY CLERK 12/14/2022 04:46 PM INDEX NO. 804173/2020 NYSCEF DOC. NO. 94 RECEIVED NYSCEF: 12/14/2022 all of the work that he had done for these customers, for years and years, without regard to as detailed in prior affidavit. relevance, my 11. IEvolve also claims that it was not required to provide witness fees to the subpoenaed parties, because its subpoenas duces tecum did not compel a witness to attend a deposition or hearing1. (Memorandum at 20) That is simply not true. The subpoenas explicitly commanded the subpoenaed parties to produce all of the subpoenaed documents at the offices of IEvolve's attorneys, and the cover letters to the subpoenas did not instruct otherwise. (See, subpoenas and cover Ex. F to letters, my prior affidavit.) 12. Even if,with respect to some of the subpoenas, IEvolve's ended attorney up not the subpoenaed to appear at his office, as required IEvolve's requiring party by subpoena, a witness fee was still required. In addition, the subpoenaed parties were also entitled to defrayment of their expenses in with the subpoenas, complying pursuant to the mandatory requirement of CPLR §3122(d). Rather than being required attorneys' to only appear at IEvolve's offices with their original documents, were they abusively and more onerously required to provide IEvolve with copies of all of the 1 IEvolve cites solely toMatter of BU-91-04-1356A, 186 A.D.2d 1054, 588 N.Y.S.2d 954 (4th Dept. 1992), in support of thiscontention. However, that case is easily distinguishable from facts of the case at bar. There, the subpoenaed party was a physician-party being investigated by the State Board of Professional Medical Conduct. The subpoena commanded only the production of medical records for fiveof his patients at the Board's localoffice, and the Court found that, "the Board, under that circumstance, isnot expenses." obliged to pay the statutory witness fee or mileage (emphasis added) (186 A.D.2d at 1054) Here, non-parties to this case have been subpoenaed to produce extensive records. They are entitled to the benefits and protection of the normal statutory requirements spelled-out in the CPLR provisions cited in support of Hickson's motion. Itshould alsobe noted thatno other published case has cited to thiscase in the 30 years since itwas decided. 4 of 13 FILED: ERIE COUNTY CLERK 12/14/2022 04:46 PM INDEX NO. 804173/2020 NYSCEF DOC. NO. 94 RECEIVED NYSCEF: 12/14/2022 requested documents, at their own expense, a requirement and burden that they simply "provide" do not have. They do not have to anything. They are merely obligated to "produce" the documents for inspection and copying, as set forth in my prior already affidavit. As also indicated in my prior affidavit, IEvolve made no offer to defray the parties' subpoenaed costs in producing the documents, even though CPLR §3122(d) non-parties' requires ("shall") the issuing the subpoenas to the subpoenaed party defray expenses in complying with the subpoenas. 13. As previously noted, IEvolve also argues that Hickson's motion to quash moot" the subpoenas is "largely because some of the subpoenaed parties responded to the subpoenas. (Memorandum at 2, 17-18) However, the fact that some of Hickson's customers complied with improperly overbroad subpoenas without unknowingly being paid a witness fee or being advised of their right to have their costs defrayed hardly legitimizes the subpoenas. Rather, it iswhy Hickson moved for an order requiring IEvolve to disgorge the documents that were produced and suppressing them from used in this case. being 14. IEvolve could have issued proper subpoenas, supported witness fees by non-parties' and offers to the subpoenaed costs, which were targeted and limited defray to requesting documents that were relevant to the issues in this case, rather than harassing them with subpoenas requiring them to produce hordes of irrelevant documents, at their own expense. However, IEvolve chose to do otherwise, and that is 5 of 13 FILED: ERIE COUNTY CLERK 12/14/2022 04:46 PM INDEX NO. 804173/2020 NYSCEF DOC. NO. 94 RECEIVED NYSCEF: 12/14/2022 why the subpoenas should be quashed and the fruits of the subpoenas completely disgorged and not be allowed to be used in this case. Hickson's Motion for Default Judgment 15. In its response to Hickson's motion, IEvolve continues its steadfast refusal to produce the documents that this Court ordered IEvolve to produce in its clearly order of April 5, 2022. This Court ordered IEvolve to produce all information and back-up documentation for Hickson's commission reports. Ex. to prior monthly (Order, J my affidavit) 16. IEvolve repeatedly states in itspapers that it produced 20,000 pages of documents in response to the Court's order. However, the 20,000 pages of documents it produced have almost nothing to do with its obligation to produce the back-up information and documentation to Hickson's monthly commission reports. The only back-up documents to the monthly commission reports that IEvolve produced in those 20,000 pages were copies of IEvolve's invoices to the customers, which were never at issue. 17. IEvolve relies upon the affidavit of its CEO, David Meller, to attempt to justify its failure to produce the required back-up information and documentation. Meller explains how something he refers to as, IEvolve's "sales tool", works. (Meller tool" Aff., 127) He states that this "sales is integrated directly with "its products Micro." vendor, Ingram (Meller Aff., 127) He explains that, "when I-Evolve submits a request for a quote from Ingram Micro", the request goes to Ingram Micro and then 6 of 13 FILED: ERIE COUNTY CLERK 12/14/2022 04:46 PM INDEX NO. 804173/2020 NYSCEF DOC. NO. 94 RECEIVED NYSCEF: 12/14/2022 "populates" Ingram Micro the sales tool "with the quoted cost for I-Evolve", and then "calculates the customer sales price and the profit for the sale, into account a taking mark-up." 'paper' standard (Meller Aff., 127) He then states, "There is no record for the gross profit calculation of the sale", and ends that, instead of up saying producing "export" paper records, IEvolve produced an from this "sales tool". (Meller Aff., 127) 18. However, it isimportant to recognize what Meller is careful not to say. vendor" Meller does not say that IEvolve's only "products is Ingram Micro, because it has other vendors. Also, as he says, the process he describes occurs when IEvolve "requests a quote from Ingram Micro". However, he does not that IEvolve always say asks for quotes from Ingram Micro before a customer or that all quotes quoting obtained from Ingram Micro are requested this "sales tool". In addition, utilizing tool" Meller does not indicate whether the software for the "sales can be manipulated, altered or programmed by IEvolve. 19. Most significantly, Meller does not that IEvolve does not receive paper say invoices and other documents from Ingram Micro and its other vendors in connection with purchases IEvolve makes from them or that any electronic versions of such documents are not received and cannot be printed and produced. He is very careful to 'paper' narrowly state that, "There is no record for the gross profit calculation of the only quoted sale", not that there are no paper records to the sale itself. (emphasis relating added) (Meller Aff., ¶27) 7 of 13 FILED: ERIE COUNTY CLERK 12/14/2022 04:46 PM INDEX NO. 804173/2020 NYSCEF DOC. NO. 94 RECEIVED NYSCEF: 12/14/2022 20. Hickson advises me that IEvolve purchases hardware and software from various vendors, not just Ingram Micro. Moreover, in each of Hickson's monthly commission reports, there are thousands of links and references to sources of literally information. Thus, it is that there are thousands and thousands of documents, likely both paper and electronic, that back-up these monthly commission reports or the sales that are reflected in them. Yet, IEvolve has produced virtually nothing. It has not even produced folders of documents maintained by IEvolve's accounting department any relative to Hickson's commission payments. Surely, IEvolve has documents backing up these sales, and yet none were produced. 21. The Court's order of April 5, 2022 was prepared and granted after the Court had made it very clear during oral argument and in giving its decision the motion as to what it was and IEvolve to produce - concerning expecting requiring all information and documentation itpossessed that backed-up the monthly commission reports, copies of physical files and all information and including documentation that was relevant as to how the commissions had been calculated. And yet, IEvolve chose to produce nothing, other than IEvolve's invoices to the absolutely customers, which were never at issue. 22. It is clear that IEvolve has intentionally failed to comply with this Court's order of April 5, 2022, and thus the Court is justified in imposing the sanction of fully dismissal for done so. Hickson had to go to the trouble of fighting these issues having 8 of 13 FILED: ERIE COUNTY CLERK 12/14/2022 04:46 PM INDEX NO. 804173/2020 NYSCEF DOC. NO. 94 RECEIVED NYSCEF: 12/14/2022 with IEvolve, then had to make his initial motion to obtain the Court's order, and now has had to fight this same issue all over again. Hickson's Motion for Extending Completion Deadline Discovery 23. Although IEvolve's attorney also seeks a reasonable extension of the Court's discovery completion date, he states in his responding papers that Hickson "has needlessly delayed the completion of through tactics and discovery dilatory discovery motions." (Memorandum at 23) Consequently, in considering this aspect of Hickson's motion, itis important for the Court to know that the 20,000 documents produced by IEvolve in response to the Court's order of April 5, 2022 were originally intentionally produced by IEvolve in a form wherein could not be utilized Hickson. Itturned they by out that they had been processed, altered and produced IEvolve's by e-discovery vendor for use with a proprietary document review platform that IEvolve's law firm has and utilizes, but that IEvolve's attorney had no reason to believe that either I or Hickson had or had access to. I made numerous attempts, unsuccessfully, to try to access and utilize these documents in the formats in which they were produced. Then, I went through a lengthy process with IEvolve's attorney repeatedly that requesting IEvolve re-produce the documents in a useable form and explaining why were not they in a usable form. 24. It was only after a conference was held on October 20, 2022 with the Court's Confidential Law Clerk, Darryl Colosi, Esq., wherein my inability to use these documents had been discussed, that IEvolve re-produced the documents in the form I 9 of 13 FILED: ERIE COUNTY CLERK 12/14/2022 04:46 PM INDEX NO. 804173/2020 NYSCEF DOC. NO. 94 RECEIVED NYSCEF: 12/14/2022 had been requesting. What transpired was that, during the conference, Mr. Colosi stated that Your Honor would come to my office to see whether the documents could be accessed and utilized. When he said that, IEvolve's attorney conceded that Your Honor would not be able to utilize them and said that he would speak again with IEvolve's e- discovery consultant. Later that day, he called and advised me that IEvolve's consultant had found a to re-produce the documents in the manner I suddenly way been requesting for months. Prior to that time, I had been consistently told that it could not be done. 25. Thus, it was IEvolve, and not Hickson, who caused the delays in discovery, and that is why Hickson deserves, and the Court is justified in granting, an additional six (6) months within which to complete discovery. Hickson did not have any usable documents from IEvolve pursuant to the Court's order of April 5, 2022 until October 27, 2022, almost seven months later, and, even then, he stilldid not receive the back-up documentation to the monthly commission reports which were also ordered to be produced the Court's order of April 5, 2022. by IEvolve's Motion for Spoliation Sanctions sanctions" 26. IEvolve's cross-motion for "spoliation is based solely upon statements I made to IEvolve's attorney in response to questions he had asked about Hickson's document production. After Hickson had produced all of the documents in his possession that he had voluntarily agreed to produce by agreement with IEvolve's attorney (which agreement was reflected in the Court's order of April 5, 2022), IEvolve's 10 of 13 FILED: ERIE COUNTY CLERK 12/14/2022 04:46 PM INDEX NO. 804173/2020 NYSCEF DOC. NO. 94 RECEIVED NYSCEF: 12/14/2022 attorney advised me that there were no e-mails prior to July 15, 2019, which was the date IEvolve had terminated Hickson. I responded that Hickson did not have access to "fresh" his e-mails prior to July 15, 2019, because he had deleted them and started when he commenced his new business after being terminated by IEvolve. 27. As previously noted, there have been no depositions to date in this case, and thus there has been no testimony by Hickson or anyone else as to the circumstances under which, and the reasons why, the e-mails had been deleted. Therefore, IEvolve cannot even begin to claim that it has a basis for making a motion for "spoliation sanctions" at this time. In itsMemorandum, IEvolve cites that a sanctions party seeking for spoliation of evidence must show, other things, that the control among party having over the evidence possessed an obligation to preserve it at the time of its destruction. (Memorandum at 12) Yet, IEvolve concedes that itdoes even know when the e-mails were deleted. (Memorandum at 13) Moreover, IEvolve concedes that itdid not issue a letter" litigation "hold until more than a year after Hickson was terminated and was conducting his new business. (Coren Aff., 14) Thus, IEvolve cannot prove that Hickson possessed an obligation to preserve his e-mails at the time they were deleted, let alone prove the other elements for a spoliation sanction at this time. Accordingly, IEvolve's cross-motion should be denied as being totally premature at this point in time. 28. Also, it is important to note that IEvolve bases its cross-motion cynically for "spoliation sanctions", in part, upon the fact that, when it came time to produce the text messages he had voluntarily agreed to produce, Hickson realized that his text 11 of 13 FILED: ERIE COUNTY CLERK 12/14/2022 04:46 PM INDEX NO. 804173/2020 NYSCEF DOC. NO. 94 RECEIVED NYSCEF: 12/14/2022 messages, and those of his employee, Gerald Natiella, had not been migrated to their new cell phones when he and Mr. Natiella had gotten new phones. 29. The reason this is cynical is that IEvolve failed to advise the Court that IEvolve itself had been Court ordered to produce its text messages, after resisting production of itstexts (even though Hickson had previously voluntarily agreed to produce his texts), and it was similarly unable to do so for precisely the same reasons as Hickson. IEvolve's attorney, after failing to produce any texts from IEvolve employees, advised that the employees for whom IEvolve was required to produce texts no longer had the same cell phones, thereby indirectly admitting that, when they got new cell phones, their text messages were not migrated to their new phones. Conclusion 30. For the foregoing reasons, as well as the reasons set forth in my previous affidavit in support of Hickson's motion, Hickson requests this Honorable Court to grant: a. An order denying IEvolve's cross-motion in all respects; b. An order, pursuant to CPLR §§2303, 2304 and 3103, quashing the subpoenas served IEvolve upon Hickson's customers and suppressing the by information improperly obtained through the use of those subpoenas and requiring IEvolve to disgorge all documents received in response to the subpoenas; c. An order, pursuant to CPLR §3126(3), dismissing IEvolve's complaint, with prejudice; 12 of 13 FILED: ERIE COUNTY CLERK 12/14/2022 04:46 PM INDEX NO. 804173/2020 NYSCEF DOC. NO. 94 RECEIVED NYSCEF: 12/14/2022 d. An order extending the discovery completion deadline for a period of six (6) months; and e. 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. RICHARD A. CLACK Sworn to before me this day of December, 2022 HEATHER M. BAUMEISTER NotaryPublic,Stateof New York Reg.No. 02BA6403845 in Erie County Qualified Commission ExpiresFebruary3,20 Notary Public 13 of 13