Preview
FILED: WESTCHESTER COUNTY CLERK 12/07/2023 03:09 PM INDEX NO. 60767/2018
NYSCEF DOC. NO. 1657 RECEIVED NYSCEF: 12/07/2023
EXHIBIT 1
FILED: WESTCHESTER COUNTY CLERK 12/07/2023 03:09 PM INDEX NO. 60767/2018
NYSCEF DOC. NO. 1657 RECEIVED NYSCEF: 12/07/2023
Olsen, Joshua
From: Vest, Jeremy
Sent: Thursday, December 7, 2023 11:50 AM
To: Olsen, Joshua
Subject: FW: Expert Depositions
Jeremy Vest
Member
Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C.
919 Third Avenue, New York, NY 10022
+1.212.692.6718
JVest@mintz.com | Mintz.com
From: Vest, Jeremy
Sent: Wednesday, December 6, 2023 11:20 AM
To: Robert MacGill
Cc: William S. Ohlemeyer ; Scott Murray ; Matthew
Ciulla ; Thompson, Mackenzie ; Alfred
Donnellan ; Nelida Lara
Subject: RE: Expert Depositions
Mr. MacGill,
How could January 12 not be “good” for Houlihan Lawrence when it already set aside that date
for a deposition of its expert?
Please confirm that Houlihan Lawrence is reserving January 5 for any further deposition it may
wish to take of Mr. Lashway and January 10 for a follow-up mediation session in the event
settlement talks next week prove unsuccessful but warrant a follow-up session.
As for the reasons for the Class’s deposition of Mr. Cusack, as we explained to the Court
yesterday, the Class is concerned about Mr. Cusack’s availability at trial given his “advanced age
and fragile health,” especially in light of Dr. Berk’s recent passing and the uncertainty of when
this matter will proceed to trial.
Regards,
Jeremy
1
FILED: WESTCHESTER COUNTY CLERK 12/07/2023 03:09 PM INDEX NO. 60767/2018
NYSCEF DOC. NO. 1657 RECEIVED NYSCEF: 12/07/2023
Jeremy Vest
Member
Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C.
919 Third Avenue, New York, NY 10022
+1.212.692.6718
JVest@mintz.com | Mintz.com
From: Robert MacGill
Sent: Wednesday, December 6, 2023 10:14 AM
To: Vest, Jeremy
Cc: William S. Ohlemeyer ; Scott Murray ; Matthew
Ciulla ; Thompson, Mackenzie ; Alfred
Donnellan ; Nelida Lara
Subject: Re: Expert Depositions
Jeremy,January 12 is not a go od date for u s. Can you pleas e provide more in for mation a s to the reaso ns this is nece ssary?Best regard s. Robert D. MacGillMacGill P CInlan d Building15 6 E. Market St.Suite 1200Indianapolis, IN 4 6204 W: 317 -96 1-5 085M: 317 -442 -382 5 Robert.MacGill@Ma cGillL
Jeremy,
January 12 is not a good date for us.
Can you please provide more information as to the reasons this is necessary?
Best regards.
Robert D. MacGill
MacGill PC
Inland Building
156 E. Market St.
Suite 1200
Indianapolis, IN 46204
W: 317-961-5085
M: 317-442-3825
Robert.MacGill@MacGillLaw.com
www.MacGillLaw.com
P Please consider the environment before printing this email.
On Dec 6, 2023, at 9:54 AM, Vest, Jeremy wrote:
Mr. MacGill,
Please find the attached deposition notice for Mr. Cusack’s preservation deposition
on January 12, 2024. The Class expects to complete its trial direct examination of
Mr. Cusack during the morning. The Class will reserve the afternoon for Houlihan
Lawrence’s trial cross examination.
2
FILED: WESTCHESTER COUNTY CLERK 12/07/2023 03:09 PM INDEX NO. 60767/2018
NYSCEF DOC. NO. 1657 RECEIVED NYSCEF: 12/07/2023
Regards,
Jeremy
Jeremy Vest
Member
Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C.
919 Third Avenue, New York, NY 10022
+1.212.692.6718
JVest@mintz.com | Mintz.com
From: Robert MacGill
Sent: Tuesday, December 5, 2023 9:56 AM
To: Vest, Jeremy
Cc: William S. Ohlemeyer ; Scott Murray
; Matthew Ciulla ; Thompson,
Mackenzie ; Alfred Donnellan ; Nelida
Lara
Subject: Re: Expert Depositions
Thanks for the respons e, Jeremy. We need to relea se the dates we provide d now given d ema nds in other ca ses. Ca n you pr ovide more in for mation o n Mr. Cu sack an d your ne eds with hi s testimo ny?Best regards. Ro bert D. MacGillMacGill P CInlan d Building15 6 E. Market St.Suite 1200Indianap
Thanks for the response, Jeremy.
We need to release the dates we provided now given demands in other cases.
Can you provide more information on Mr. Cusack and your needs with his testimony?
Best regards.
Robert D. MacGill
MacGill PC
Inland Building
156 E. Market St.
Suite 1200
Indianapolis, IN 46204
W: 317-961-5085
M: 317-442-3825
Robert.MacGill@MacGillLaw.com
www.MacGillLaw.com
P Please consider the environment before printing this email.
3
FILED: WESTCHESTER COUNTY CLERK 12/07/2023 03:09 PM INDEX NO. 60767/2018
NYSCEF DOC. NO. 1657 RECEIVED NYSCEF: 12/07/2023
On Dec 5, 2023, at 9:34 AM, Vest, Jeremy wrote:
Mr. MacGill,
The Class does not require depositions of Houlihan Lawrence’s experts
and believes that the time is better spent preparing dispositive
motions and preserving Mr. Cusack’s testimony in the event of his
unavailability for trial. We will so advise the Court today. Please
continue to reserve January 5, 10, and 12 for this case.
Regards,
Jeremy
Jeremy Vest
Member
Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C.
919 Third Avenue, New York, NY 10022
+1.212.692.6718
JVest@mintz.com | Mintz.com
From: Robert MacGill
Sent: Monday, December 4, 2023 2:46 PM
To: Vest, Jeremy ; William S. Ohlemeyer
Cc: Scott Murray ; Matthew Ciulla
; Thompson, Mackenzie
; Alfred Donnellan ;
Nelida Lara
Subject: Re: Expert Depositions
Bill and Jeremy,I a m following u p on th e email bel ow. Can y ou pleas e let us know a bout the proposed dates? Robert D. MacGillMacGill P CInlan d Building15 6 E. Market St.Suite 1200Indianap olis, IN 4 6204 W: 317 -96 1-5 085M : 317 -442 -38 25 Robert.Ma cGill@Ma cGillLaw. comwww.MacGillLaw.comP Pl
Bill and Jeremy,
I am following up on the email below.
Can you please let us know about the proposed dates?
Robert D. MacGill
MacGill PC
Inland Building
156 E. Market St.
Suite 1200
4
FILED: WESTCHESTER COUNTY CLERK 12/07/2023 03:09 PM INDEX NO. 60767/2018
NYSCEF DOC. NO. 1657 RECEIVED NYSCEF: 12/07/2023
Indianapolis, IN 46204
W: 317-961-5085
M: 317-442-3825
Robert.MacGill@MacGillLaw.com
www.MacGillLaw.com
P Please consider the environment before printing this email.
On Mon, Nov 27, 2023 at 11:14 AM Robert MacGill wrote:
Bill and Jeremy,
We have followed up with our experts about deposition dates.
Gary Kleinrichert is available to be deposed in Fort Lauderdale on January 5.
We would like to schedule Joe Rand for January 10 in White Plains and will check with him if the
date works for you.
Debra Aron is available on January 12 in Chicago.
Please let us know if these dates work for you. If not, please propose alternative
dates. Please note that we are not available on January 2-4 or January 8 or 9.
We are available January 15-19 if those dates work better on your calendar and are happy to
check with our experts on those dates as well .
Best regards.
Robert D. MacGill
MacGill PC
Inland Building
156 E. Market St.
Suite 1200
Indianapolis, IN 46204
W: 317-961-5085
M: 317-442-3825
Robert.MacGill@MacGillLaw.com
www.MacGillLaw.com
P Please consider the environment before printing this email.
NOTICE: This email and any attachments are for the exclusive, confidential use of the
intended recipient. We do not waive attorney client or work product privilege by the
transmission of this message. If you are not the intended recipient, please: notify us
immediately, delete this message, and refrain from taking any action in reliance on this
message.
STATEMENT OF CONFIDENTIALITY:
The information contained in this electronic message and any attachments
to this message are intended for the exclusive use of the addressee(s)
and may contain confidential or privileged information. If you are not
the intended recipient, or the person responsible for delivering the
email to the intended recipient, be advised you have received this
message in error and that any use, dissemination, forwarding, printing,
or copying is strictly prohibited. Please notify the Mintz, Levin, Cohn,
5
FILED: WESTCHESTER COUNTY CLERK 12/07/2023 03:09 PM INDEX NO. 60767/2018
NYSCEF DOC. NO. 1657 RECEIVED NYSCEF: 12/07/2023
Ferris, Glovsky and Popeo sender immediately, and destroy all copies
of this message and any attachments.
NOTICE: This email and any attachments are for the exclusive, confidential use of the intended recipient.
We do not waive attorney client or work product privilege by the transmission of this message. If you are
not the intended recipient, please: notify us immediately, delete this message, and refrain from taking any
action in reliance on this message.
STATEMENT OF CONFIDENTIALITY:
The information contained in this electronic message and any attachments
to this message are intended for the exclusive use of the addressee(s)
and may contain confidential or privileged information. If you are not
the intended recipient, or the person responsible for delivering the
email to the intended recipient, be advised you have received this
message in error and that any use, dissemination, forwarding, printing,
or copying is strictly prohibited. Please notify the Mintz, Levin, Cohn,
Ferris, Glovsky and Popeo sender immediately, and destroy all copies
of this message and any attachments.
<2023-12-06 Cusack Depo Notice.pdf>
NOTICE: This email and any attachments are for the exclusive, confidential use of the intended recipient. We do not
waive attorney client or work product privilege by the transmission of this message. If you are not the intended recipient,
please: notify us immediately, delete this message, and refrain from taking any action in reliance on this message.
6
Preview
FILED: WESTCHESTER COUNTY CLERK 12/07/2023 03:09 PM INDEX NO. 60767/2018 NYSCEF DOC. NO. 1657 RECEIVED NYSCEF: 12/07/2023 EXHIBIT 1 FILED: WESTCHESTER COUNTY CLERK 12/07/2023 03:09 PM INDEX NO. 60767/2018 NYSCEF DOC. NO. 1657 RECEIVED NYSCEF: 12/07/2023 Olsen, Joshua From: Vest, Jeremy Sent: Thursday, December 7, 2023 11:50 AM To: Olsen, Joshua Subject: FW: Expert Depositions Jeremy Vest Member Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C. 919 Third Avenue, New York, NY 10022 +1.212.692.6718 JVest@mintz.com | Mintz.com From: Vest, Jeremy Sent: Wednesday, December 6, 2023 11:20 AM To: Robert MacGill Cc: William S. Ohlemeyer ; Scott Murray ; Matthew Ciulla ; Thompson, Mackenzie ; Alfred Donnellan ; Nelida Lara Subject: RE: Expert Depositions Mr. MacGill, How could January 12 not be “good” for Houlihan Lawrence when it already set aside that date for a deposition of its expert? Please confirm that Houlihan Lawrence is reserving January 5 for any further deposition it may wish to take of Mr. Lashway and January 10 for a follow-up mediation session in the event settlement talks next week prove unsuccessful but warrant a follow-up session. As for the reasons for the Class’s deposition of Mr. Cusack, as we explained to the Court yesterday, the Class is concerned about Mr. Cusack’s availability at trial given his “advanced age and fragile health,” especially in light of Dr. Berk’s recent passing and the uncertainty of when this matter will proceed to trial. Regards, Jeremy 1 FILED: WESTCHESTER COUNTY CLERK 12/07/2023 03:09 PM INDEX NO. 60767/2018 NYSCEF DOC. NO. 1657 RECEIVED NYSCEF: 12/07/2023 Jeremy Vest Member Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C. 919 Third Avenue, New York, NY 10022 +1.212.692.6718 JVest@mintz.com | Mintz.com From: Robert MacGill Sent: Wednesday, December 6, 2023 10:14 AM To: Vest, Jeremy Cc: William S. Ohlemeyer ; Scott Murray ; Matthew Ciulla ; Thompson, Mackenzie ; Alfred Donnellan ; Nelida Lara Subject: Re: Expert Depositions Jeremy,January 12 is not a go od date for u s. Can you pleas e provide more in for mation a s to the reaso ns this is nece ssary?Best regard s. Robert D. MacGillMacGill P CInlan d Building15 6 E. Market St.Suite 1200Indianapolis, IN 4 6204 W: 317 -96 1-5 085M: 317 -442 -382 5 Robert.MacGill@Ma cGillL Jeremy, January 12 is not a good date for us. Can you please provide more information as to the reasons this is necessary? Best regards. Robert D. MacGill MacGill PC Inland Building 156 E. Market St. Suite 1200 Indianapolis, IN 46204 W: 317-961-5085 M: 317-442-3825 Robert.MacGill@MacGillLaw.com www.MacGillLaw.com P Please consider the environment before printing this email. On Dec 6, 2023, at 9:54 AM, Vest, Jeremy wrote: Mr. MacGill, Please find the attached deposition notice for Mr. Cusack’s preservation deposition on January 12, 2024. The Class expects to complete its trial direct examination of Mr. Cusack during the morning. The Class will reserve the afternoon for Houlihan Lawrence’s trial cross examination. 2 FILED: WESTCHESTER COUNTY CLERK 12/07/2023 03:09 PM INDEX NO. 60767/2018 NYSCEF DOC. NO. 1657 RECEIVED NYSCEF: 12/07/2023 Regards, Jeremy Jeremy Vest Member Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C. 919 Third Avenue, New York, NY 10022 +1.212.692.6718 JVest@mintz.com | Mintz.com From: Robert MacGill Sent: Tuesday, December 5, 2023 9:56 AM To: Vest, Jeremy Cc: William S. Ohlemeyer ; Scott Murray ; Matthew Ciulla ; Thompson, Mackenzie ; Alfred Donnellan ; Nelida Lara Subject: Re: Expert Depositions Thanks for the respons e, Jeremy. We need to relea se the dates we provide d now given d ema nds in other ca ses. Ca n you pr ovide more in for mation o n Mr. Cu sack an d your ne eds with hi s testimo ny?Best regards. Ro bert D. MacGillMacGill P CInlan d Building15 6 E. Market St.Suite 1200Indianap Thanks for the response, Jeremy. We need to release the dates we provided now given demands in other cases. Can you provide more information on Mr. Cusack and your needs with his testimony? Best regards. Robert D. MacGill MacGill PC Inland Building 156 E. Market St. Suite 1200 Indianapolis, IN 46204 W: 317-961-5085 M: 317-442-3825 Robert.MacGill@MacGillLaw.com www.MacGillLaw.com P Please consider the environment before printing this email. 3 FILED: WESTCHESTER COUNTY CLERK 12/07/2023 03:09 PM INDEX NO. 60767/2018 NYSCEF DOC. NO. 1657 RECEIVED NYSCEF: 12/07/2023 On Dec 5, 2023, at 9:34 AM, Vest, Jeremy wrote: Mr. MacGill, The Class does not require depositions of Houlihan Lawrence’s experts and believes that the time is better spent preparing dispositive motions and preserving Mr. Cusack’s testimony in the event of his unavailability for trial. We will so advise the Court today. Please continue to reserve January 5, 10, and 12 for this case. Regards, Jeremy Jeremy Vest Member Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C. 919 Third Avenue, New York, NY 10022 +1.212.692.6718 JVest@mintz.com | Mintz.com From: Robert MacGill Sent: Monday, December 4, 2023 2:46 PM To: Vest, Jeremy ; William S. Ohlemeyer Cc: Scott Murray ; Matthew Ciulla ; Thompson, Mackenzie ; Alfred Donnellan ; Nelida Lara Subject: Re: Expert Depositions Bill and Jeremy,I a m following u p on th e email bel ow. Can y ou pleas e let us know a bout the proposed dates? Robert D. MacGillMacGill P CInlan d Building15 6 E. Market St.Suite 1200Indianap olis, IN 4 6204 W: 317 -96 1-5 085M : 317 -442 -38 25 Robert.Ma cGill@Ma cGillLaw. comwww.MacGillLaw.comP Pl Bill and Jeremy, I am following up on the email below. Can you please let us know about the proposed dates? Robert D. MacGill MacGill PC Inland Building 156 E. Market St. Suite 1200 4 FILED: WESTCHESTER COUNTY CLERK 12/07/2023 03:09 PM INDEX NO. 60767/2018 NYSCEF DOC. NO. 1657 RECEIVED NYSCEF: 12/07/2023 Indianapolis, IN 46204 W: 317-961-5085 M: 317-442-3825 Robert.MacGill@MacGillLaw.com www.MacGillLaw.com P Please consider the environment before printing this email. On Mon, Nov 27, 2023 at 11:14 AM Robert MacGill wrote: Bill and Jeremy, We have followed up with our experts about deposition dates. Gary Kleinrichert is available to be deposed in Fort Lauderdale on January 5. We would like to schedule Joe Rand for January 10 in White Plains and will check with him if the date works for you. Debra Aron is available on January 12 in Chicago. Please let us know if these dates work for you. If not, please propose alternative dates. Please note that we are not available on January 2-4 or January 8 or 9. We are available January 15-19 if those dates work better on your calendar and are happy to check with our experts on those dates as well . Best regards. Robert D. MacGill MacGill PC Inland Building 156 E. Market St. Suite 1200 Indianapolis, IN 46204 W: 317-961-5085 M: 317-442-3825 Robert.MacGill@MacGillLaw.com www.MacGillLaw.com P Please consider the environment before printing this email. NOTICE: This email and any attachments are for the exclusive, confidential use of the intended recipient. We do not waive attorney client or work product privilege by the transmission of this message. If you are not the intended recipient, please: notify us immediately, delete this message, and refrain from taking any action in reliance on this message. STATEMENT OF CONFIDENTIALITY: The information contained in this electronic message and any attachments to this message are intended for the exclusive use of the addressee(s) and may contain confidential or privileged information. If you are not the intended recipient, or the person responsible for delivering the email to the intended recipient, be advised you have received this message in error and that any use, dissemination, forwarding, printing, or copying is strictly prohibited. Please notify the Mintz, Levin, Cohn, 5 FILED: WESTCHESTER COUNTY CLERK 12/07/2023 03:09 PM INDEX NO. 60767/2018 NYSCEF DOC. NO. 1657 RECEIVED NYSCEF: 12/07/2023 Ferris, Glovsky and Popeo sender immediately, and destroy all copies of this message and any attachments. NOTICE: This email and any attachments are for the exclusive, confidential use of the intended recipient. We do not waive attorney client or work product privilege by the transmission of this message. If you are not the intended recipient, please: notify us immediately, delete this message, and refrain from taking any action in reliance on this message. STATEMENT OF CONFIDENTIALITY: The information contained in this electronic message and any attachments to this message are intended for the exclusive use of the addressee(s) and may contain confidential or privileged information. If you are not the intended recipient, or the person responsible for delivering the email to the intended recipient, be advised you have received this message in error and that any use, dissemination, forwarding, printing, or copying is strictly prohibited. Please notify the Mintz, Levin, Cohn, Ferris, Glovsky and Popeo sender immediately, and destroy all copies of this message and any attachments. <2023-12-06 Cusack Depo Notice.pdf> NOTICE: This email and any attachments are for the exclusive, confidential use of the intended recipient. We do not waive attorney client or work product privilege by the transmission of this message. If you are not the intended recipient, please: notify us immediately, delete this message, and refrain from taking any action in reliance on this message. 6