Preview
FILED: NEW YORK COUNTY CLERK 12/04/2023 01:12 PM INDEX NO. 160750/2023
NYSCEF DOC. NO. 28 RECEIVED NYSCEF: 12/04/2023
EXHIBIT 3
7815967.1
FILED: NEW YORK COUNTY CLERK 12/04/2023 01:12 PM INDEX NO. 160750/2023
NYSCEF DOC. NO. 28 RECEIVED NYSCEF: 12/04/2023
HINSHAW & CULBERTSON LLP
Attorneys at Law
800 Third Avenue J. Gregory Lahr
13th Floor glahr@hinshawlaw.com
New York, NY 10022
212-471-6200
212-935-1166 (fax)
www.hinshawlaw.com
November 13, 2023
VIA EMAIL
(nemon@clm.com)
Jacob H. Nemon
Carter Ledyard Milburn
28 Liberty Street, 41st Floor
New York, New York 10005
Re: Toptal, LLC v. Sabaina Bukhari, JAMS Ref. No. 542000743
Dear Jacob:
As you know, we represent Respondent Sabaina Bukhari (“Ms. Bukhari”) in the above-
referenced action. Pursuant to Arbitrator Kwok’s Interim Order No. 5 dated September 11, 2023
(“Order No. 5”), enclosed please find additional responsive documents and specific objections to
Toptal, LLC’s (“Toptal”) First Set of Document Demands (the “Demands”). Ms. Bukhari
reiterates the General Objections referenced in her initial Response and Objections to Toptal’s
Demands.
I. Section II.A of Toptal’s Motion to Compel
Order No. 5 directs Ms. Bukhari to provide specific responses to the requests referenced in
Section II.A of Toptal’s Motion to Compel. In accordance with Order No. 5, with respect to
Demands Nos. 6, 7, 11, 14, 15, 17, 18, 19, 30, 31, 25, 26, 27, 28, 32 and 33, Ms. Bukhari has
conducted a thorough search of her computing and telecommunication devices and has no
responsive documents in her possession. Ms. Bukhari has also requested documents to Demand
No. 6 from WorkGenius.
II. Section II.B of Toptal’s Motion to Compel
Order No. 5 directs Ms. Bukhari to produce the documents referenced in Section II.B of Toptal’s
Motion to Compel, which references the Demands in Section II.A but focuses on documents
from Ms. Bukhari’s employment with WorkGenius. To the extent WorkGenius records need to
be requested, Ms. Bukhari must do so and provide records of these requests. Counsel for Ms.
Bukhari subsequently confirmed with Arbitrator Kwok that Ms. Bukhari satisfies Order No. 5 by
simply requesting that WorkGenius provide responsive documents, as Ms. Bukhari has not been
employed by WorkGenius following Order No. 2 and has no ability to compel WorkGenius to
provide documents.
314897338.v1
FILED: NEW YORK COUNTY CLERK 12/04/2023 01:12 PM INDEX NO. 160750/2023
NYSCEF DOC. NO. 28 RECEIVED NYSCEF: 12/04/2023
November 13, 2023
Page 2
In accordance with Order No. 5, Ms. Bukhari has requested responsive documents from
WorkGenius.
III. Section II.C of Toptal’s Motion to Compel
Order No. 5 directs Ms. Bukhari to produce the confidential documents referenced in Section
II.C of Toptal’s Motion to Compel, as well as clarify which documents, if any, are being
withheld on confidentiality grounds. Section II.C does not refer to any specific Demands and
instead objects to Ms. Bukhari’s General Objections Nos. 4 and 5.
In accordance with Order No. 5, Ms. Bukhari is withholding the following documents on
confidentiality grounds:
• July 14, 2023 e-mail chain between Ms. Bukhari, WorkGenius co-founder Daniel Barke
and Ran Mukherjee (counsel for former respondent Yafim Strauss), who represented Ms.
Bukhari solely for the purpose of her employment agreement with WorkGenius, with
respect to the finalization of her employment agreement. These communications are
protected by the attorney-client privilege.
IV. Section II.D of Toptal's Motion to Compel
Order No. 5 directs Ms. Bukhari to produce the confidential documents referenced in Section
II.D of Toptal’s Motion to Compel. Specifically, Ms. Bukhari is required to produce documents
in response to Demand Nos. 2, 5, 8, 9, 10, 11, 12, 13, 16, 19, 20, 21, 22, 23, 24, 29, 35 and 36. In
accordance with Order No. 5, Ms. Bukhari’s responses and objections to these Demands are as
follows:
2. All nonprivileged documents and communications relied on by you in preparing,
formulating or drafting the Bukhari Answer and Bukhari Declaration.
RESPONSE: See enclosed documents, as well as previously disclosed documents.
5. Your employment offer letters, employment agreements, stock options
agreements or applicable policies, bonus agreements or applicable policies, indemnity
agreements and any other agreements concerning the terms and conditions of your employment
or any other engagement for WorkGenius, JBC, or any WorkGenius or JBC subsidiaries or
affiliate.
RESPONSE: See BUK00013 to BUK00037.
8. Your W-2 and all other tax documents and records from WorkGenius, JBC, or
any other entity that paid you for the year 2022.
RESPONSE: See BUK00038 to BUK00042.
314897338.v1
FILED: NEW YORK COUNTY CLERK 12/04/2023 01:12 PM INDEX NO. 160750/2023
NYSCEF DOC. NO. 28 RECEIVED NYSCEF: 12/04/2023
November 13, 2023
Page 3
9. All of your paystubs from WorkGenius, JBC, or any other entity that paid you for
services or work performed during the Relevant Period.
RESPONSE: See BUK00043 to BUK00060.
10. A report of all individuals or entities you solicited on behalf of WorkGenius, JBC,
or any of their subsidiaries or affiliates, including the gross revenues earned by WorkGenius,
JBC, or any of their subsidiaries or affiliates on account of such individuals or entities.
RESPONSE: Ms. Bukhari has conducted a thorough search of her computing and
telecommunication devices and has no responsive documents in her possession.
11. A report of all Toptal Personnel or Toptal Talent you solicited to perform services
or work for WorkGenius, JBC, or any of their subsidiaries or affiliates, including the gross
revenues earned by WorkGenius, JBC or any of their subsidiaries or affiliates on account of such
individuals.
RESPONSE: Ms. Bukhari has conducted a thorough search of her computing and
telecommunication devices and has no responsive documents in her possession.
12. A report that details any commissions or other monetary renumeration you earned
for the work or services you performed for WorkGenius, JBC, or any of their subsidiaries or
affiliates.
RESPONSE: Ms. Bukhari has conducted a thorough search of her computing and
telecommunication devices and has no responsive documents in her possession. In accordance
with Order No. 5, Ms. Bukhari has requested responsive documents from WorkGenius.
13. Copies of all Toptal Proprietary Information presently in your possession, custody
and control.
RESPONSE: Ms. Bukhari has conducted a thorough search of her computing and
telecommunication devices and has no responsive documents in her possession.
16. All communications between WorkGenius, JBC, or any of their subsidiaries or
affiliates and you concerning solicitations, discussions, negotiations, offers, agreements or
arrangements for you to provide services to WorkGenius or its affiliates (including without
limitation JBC), whether as an employee, independent contractor, consultant or in any other
capacity.
RESPONSE: See BUK00061 to BUK00063.
19. All communications between WorkGenius, JBC, or any of their subsidiaries or
affiliates and you concerning its policies, protocols or strategies with respect to soliciting,
314897338.v1
FILED: NEW YORK COUNTY CLERK 12/04/2023 01:12 PM INDEX NO. 160750/2023
NYSCEF DOC. NO. 28 RECEIVED NYSCEF: 12/04/2023
November 13, 2023
Page 4
recruiting, interviewing and vetting processes for individuals who have already been approved as
Toptal Talent.
RESPONSE: Ms. Bukhari has conducted a thorough search of her computing and
telecommunication devices and has no responsive documents in her possession.
20. All communications regarding the voluntary or involuntary termination of your
employment with WorkGenius or JBC, JBC, or any affiliate or subsidiary of WorkGenius or
JBC.
RESPONSE: See BUK00064 to BUK00065.
21. All communications concerning the transfer of your employment from
WorkGenius to JBC as a result of this Proceeding or Order No. 2.
RESPONSE: Ms. Bukhari has conducted a thorough search of her computing and
telecommunication devices and has no responsive documents in her possession.
22. All communications concerning this Proceeding or WorkGenius’ agreement to
indemnify or defend claims by Toptal against you.
RESPONSE: See BUK00066 to BUK00067.
23. All records of payments made by WorkGenius, JBC, or any of their subsidiaries
or affiliates to you or on your behalf in connection with the duty to indemnify or defend you.
RESPONSE: Ms. Bukhari has conducted a thorough search of her computing and
telecommunication devices and has no responsive documents in her possession. In accordance
with Order No. 5, Ms. Bukhari has requested responsive documents from WorkGenius.
24. All communications between you and WorkGenius, JBC, or any other entity or
individual concerning Order No. 2.
RESPONSE: See BUK00068 to BUK00071.
29. All communications between Oblianda and you.
RESPONSE: Ms. Bukhari has conducted a thorough search of her computing and
telecommunication devices and has no responsive documents in her possession.
35. Your offer letter or agreement for any employment or services for any position
you have undertaken since the issuance of Order No. 2.
RESPONSE: See BUK00072 to BUK00081.
314897338.v1
FILED: NEW YORK COUNTY CLERK 12/04/2023 01:12 PM INDEX NO. 160750/2023
NYSCEF DOC. NO. 28 RECEIVED NYSCEF: 12/04/2023
November 13, 2023
Page 5
36. All documents and communications concerning any compensation paid or to be
paid to you by WorkGenius, JBC, or any other entity since the issuance of Order No. 2.
RESPONSE: See BUK00082 to BUK00088.
Very truly yours,
J. Gregory Lahr
314897338.v1
FILED: NEW YORK COUNTY CLERK 12/04/2023 01:12 PM INDEX NO. 160750/2023
NYSCEF DOC. NO. 28 RECEIVED NYSCEF: 12/04/2023
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
-----------------------------------------------------------------X
TOPTAL, LLC,
Index No. 160750/2023
Petitioner,
-v- REPLY AFFIRMATION
WORKGENIUS, INC,
Respondent,
-and-
SABAINA BUKHARI.
Notice Respondent.
-----------------------------------------------------------------X
CARTER LEDYARD & MILBURN LLP
28 Liberty Street, 41st Floor
New York, NY 10005
(212) 732-3200
11239703.1
Preview
FILED: NEW YORK COUNTY CLERK 12/04/2023 01:12 PM INDEX NO. 160750/2023 NYSCEF DOC. NO. 28 RECEIVED NYSCEF: 12/04/2023 EXHIBIT 3 7815967.1 FILED: NEW YORK COUNTY CLERK 12/04/2023 01:12 PM INDEX NO. 160750/2023 NYSCEF DOC. NO. 28 RECEIVED NYSCEF: 12/04/2023 HINSHAW & CULBERTSON LLP Attorneys at Law 800 Third Avenue J. Gregory Lahr 13th Floor glahr@hinshawlaw.com New York, NY 10022 212-471-6200 212-935-1166 (fax) www.hinshawlaw.com November 13, 2023 VIA EMAIL (nemon@clm.com) Jacob H. Nemon Carter Ledyard Milburn 28 Liberty Street, 41st Floor New York, New York 10005 Re: Toptal, LLC v. Sabaina Bukhari, JAMS Ref. No. 542000743 Dear Jacob: As you know, we represent Respondent Sabaina Bukhari (“Ms. Bukhari”) in the above- referenced action. Pursuant to Arbitrator Kwok’s Interim Order No. 5 dated September 11, 2023 (“Order No. 5”), enclosed please find additional responsive documents and specific objections to Toptal, LLC’s (“Toptal”) First Set of Document Demands (the “Demands”). Ms. Bukhari reiterates the General Objections referenced in her initial Response and Objections to Toptal’s Demands. I. Section II.A of Toptal’s Motion to Compel Order No. 5 directs Ms. Bukhari to provide specific responses to the requests referenced in Section II.A of Toptal’s Motion to Compel. In accordance with Order No. 5, with respect to Demands Nos. 6, 7, 11, 14, 15, 17, 18, 19, 30, 31, 25, 26, 27, 28, 32 and 33, Ms. Bukhari has conducted a thorough search of her computing and telecommunication devices and has no responsive documents in her possession. Ms. Bukhari has also requested documents to Demand No. 6 from WorkGenius. II. Section II.B of Toptal’s Motion to Compel Order No. 5 directs Ms. Bukhari to produce the documents referenced in Section II.B of Toptal’s Motion to Compel, which references the Demands in Section II.A but focuses on documents from Ms. Bukhari’s employment with WorkGenius. To the extent WorkGenius records need to be requested, Ms. Bukhari must do so and provide records of these requests. Counsel for Ms. Bukhari subsequently confirmed with Arbitrator Kwok that Ms. Bukhari satisfies Order No. 5 by simply requesting that WorkGenius provide responsive documents, as Ms. Bukhari has not been employed by WorkGenius following Order No. 2 and has no ability to compel WorkGenius to provide documents. 314897338.v1 FILED: NEW YORK COUNTY CLERK 12/04/2023 01:12 PM INDEX NO. 160750/2023 NYSCEF DOC. NO. 28 RECEIVED NYSCEF: 12/04/2023 November 13, 2023 Page 2 In accordance with Order No. 5, Ms. Bukhari has requested responsive documents from WorkGenius. III. Section II.C of Toptal’s Motion to Compel Order No. 5 directs Ms. Bukhari to produce the confidential documents referenced in Section II.C of Toptal’s Motion to Compel, as well as clarify which documents, if any, are being withheld on confidentiality grounds. Section II.C does not refer to any specific Demands and instead objects to Ms. Bukhari’s General Objections Nos. 4 and 5. In accordance with Order No. 5, Ms. Bukhari is withholding the following documents on confidentiality grounds: • July 14, 2023 e-mail chain between Ms. Bukhari, WorkGenius co-founder Daniel Barke and Ran Mukherjee (counsel for former respondent Yafim Strauss), who represented Ms. Bukhari solely for the purpose of her employment agreement with WorkGenius, with respect to the finalization of her employment agreement. These communications are protected by the attorney-client privilege. IV. Section II.D of Toptal's Motion to Compel Order No. 5 directs Ms. Bukhari to produce the confidential documents referenced in Section II.D of Toptal’s Motion to Compel. Specifically, Ms. Bukhari is required to produce documents in response to Demand Nos. 2, 5, 8, 9, 10, 11, 12, 13, 16, 19, 20, 21, 22, 23, 24, 29, 35 and 36. In accordance with Order No. 5, Ms. Bukhari’s responses and objections to these Demands are as follows: 2. All nonprivileged documents and communications relied on by you in preparing, formulating or drafting the Bukhari Answer and Bukhari Declaration. RESPONSE: See enclosed documents, as well as previously disclosed documents. 5. Your employment offer letters, employment agreements, stock options agreements or applicable policies, bonus agreements or applicable policies, indemnity agreements and any other agreements concerning the terms and conditions of your employment or any other engagement for WorkGenius, JBC, or any WorkGenius or JBC subsidiaries or affiliate. RESPONSE: See BUK00013 to BUK00037. 8. Your W-2 and all other tax documents and records from WorkGenius, JBC, or any other entity that paid you for the year 2022. RESPONSE: See BUK00038 to BUK00042. 314897338.v1 FILED: NEW YORK COUNTY CLERK 12/04/2023 01:12 PM INDEX NO. 160750/2023 NYSCEF DOC. NO. 28 RECEIVED NYSCEF: 12/04/2023 November 13, 2023 Page 3 9. All of your paystubs from WorkGenius, JBC, or any other entity that paid you for services or work performed during the Relevant Period. RESPONSE: See BUK00043 to BUK00060. 10. A report of all individuals or entities you solicited on behalf of WorkGenius, JBC, or any of their subsidiaries or affiliates, including the gross revenues earned by WorkGenius, JBC, or any of their subsidiaries or affiliates on account of such individuals or entities. RESPONSE: Ms. Bukhari has conducted a thorough search of her computing and telecommunication devices and has no responsive documents in her possession. 11. A report of all Toptal Personnel or Toptal Talent you solicited to perform services or work for WorkGenius, JBC, or any of their subsidiaries or affiliates, including the gross revenues earned by WorkGenius, JBC or any of their subsidiaries or affiliates on account of such individuals. RESPONSE: Ms. Bukhari has conducted a thorough search of her computing and telecommunication devices and has no responsive documents in her possession. 12. A report that details any commissions or other monetary renumeration you earned for the work or services you performed for WorkGenius, JBC, or any of their subsidiaries or affiliates. RESPONSE: Ms. Bukhari has conducted a thorough search of her computing and telecommunication devices and has no responsive documents in her possession. In accordance with Order No. 5, Ms. Bukhari has requested responsive documents from WorkGenius. 13. Copies of all Toptal Proprietary Information presently in your possession, custody and control. RESPONSE: Ms. Bukhari has conducted a thorough search of her computing and telecommunication devices and has no responsive documents in her possession. 16. All communications between WorkGenius, JBC, or any of their subsidiaries or affiliates and you concerning solicitations, discussions, negotiations, offers, agreements or arrangements for you to provide services to WorkGenius or its affiliates (including without limitation JBC), whether as an employee, independent contractor, consultant or in any other capacity. RESPONSE: See BUK00061 to BUK00063. 19. All communications between WorkGenius, JBC, or any of their subsidiaries or affiliates and you concerning its policies, protocols or strategies with respect to soliciting, 314897338.v1 FILED: NEW YORK COUNTY CLERK 12/04/2023 01:12 PM INDEX NO. 160750/2023 NYSCEF DOC. NO. 28 RECEIVED NYSCEF: 12/04/2023 November 13, 2023 Page 4 recruiting, interviewing and vetting processes for individuals who have already been approved as Toptal Talent. RESPONSE: Ms. Bukhari has conducted a thorough search of her computing and telecommunication devices and has no responsive documents in her possession. 20. All communications regarding the voluntary or involuntary termination of your employment with WorkGenius or JBC, JBC, or any affiliate or subsidiary of WorkGenius or JBC. RESPONSE: See BUK00064 to BUK00065. 21. All communications concerning the transfer of your employment from WorkGenius to JBC as a result of this Proceeding or Order No. 2. RESPONSE: Ms. Bukhari has conducted a thorough search of her computing and telecommunication devices and has no responsive documents in her possession. 22. All communications concerning this Proceeding or WorkGenius’ agreement to indemnify or defend claims by Toptal against you. RESPONSE: See BUK00066 to BUK00067. 23. All records of payments made by WorkGenius, JBC, or any of their subsidiaries or affiliates to you or on your behalf in connection with the duty to indemnify or defend you. RESPONSE: Ms. Bukhari has conducted a thorough search of her computing and telecommunication devices and has no responsive documents in her possession. In accordance with Order No. 5, Ms. Bukhari has requested responsive documents from WorkGenius. 24. All communications between you and WorkGenius, JBC, or any other entity or individual concerning Order No. 2. RESPONSE: See BUK00068 to BUK00071. 29. All communications between Oblianda and you. RESPONSE: Ms. Bukhari has conducted a thorough search of her computing and telecommunication devices and has no responsive documents in her possession. 35. Your offer letter or agreement for any employment or services for any position you have undertaken since the issuance of Order No. 2. RESPONSE: See BUK00072 to BUK00081. 314897338.v1 FILED: NEW YORK COUNTY CLERK 12/04/2023 01:12 PM INDEX NO. 160750/2023 NYSCEF DOC. NO. 28 RECEIVED NYSCEF: 12/04/2023 November 13, 2023 Page 5 36. All documents and communications concerning any compensation paid or to be paid to you by WorkGenius, JBC, or any other entity since the issuance of Order No. 2. RESPONSE: See BUK00082 to BUK00088. Very truly yours, J. Gregory Lahr 314897338.v1 FILED: NEW YORK COUNTY CLERK 12/04/2023 01:12 PM INDEX NO. 160750/2023 NYSCEF DOC. NO. 28 RECEIVED NYSCEF: 12/04/2023 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK -----------------------------------------------------------------X TOPTAL, LLC, Index No. 160750/2023 Petitioner, -v- REPLY AFFIRMATION WORKGENIUS, INC, Respondent, -and- SABAINA BUKHARI. Notice Respondent. -----------------------------------------------------------------X CARTER LEDYARD & MILBURN LLP 28 Liberty Street, 41st Floor New York, NY 10005 (212) 732-3200 11239703.1