Preview
FILED: WESTCHESTER COUNTY CLERK 11/22/2017 05:15 PM INDEX NO. 60992/2016
NYSCEF DOC. NO. 83 RECEIVED NYSCEF: 11/22/2017
EXHIBIT A
FILED: WESTCHESTER COUNTY CLERK 11/22/2017 05:15 PM INDEX NO. 60992/2016
NYSCEF DOC. NO. 83 RECEIVED NYSCEF: 11/22/2017
From: DiMattia, Michael J.
To: Michael Masri
Cc: "brian@condonlawoffices.com"; "Laura@condonlawoffices.com"; DiMattia, Michael J.
Subject: H&R Recruiters v John Carter and TIBCO
Date: Tuesday, April 18, 2017 11:43:00 AM
Attachments: 20170418113513384.pdf
Dear Mr. Masri,
Attached is a copy of Mr. DiMattia’s letter to you in connection to the above-
referenced matter. Thank you.
Regards,
Eileen Chin
Practice Assistant
McGuireWoods LLP
1345 Avenue of the Americas
7th Floor
New York, NY 10105-0106
T: +1 212 548 7080
echin@mcguirewoods.com
VCard | www.mcguirewoods.com
FILED: WESTCHESTER COUNTY CLERK 11/22/2017 05:15 PM INDEX NO. 60992/2016
NYSCEF DOC. NO. 83 RECEIVED NYSCEF: 11/22/2017
McGuireWoods LLP
1345 Avenue of the Ameri cas
Seventh Floor
New York, NY 101 05-01 06
Phone: 212 .548.2 1 00
Fax: 212 .548.2 150
www.mcgu irewoods.com
Michael J. DIMattia
Direct: 212.548.7009
McGUIREWCDDS mdimania@mcguirewoods.com
Fax: 212.715.2312
April18,2017
VIA EMAIL AND
REGULAR MAIL
Michael H. Masri, Esq.
Meltzer, Lippe, Goldstein & Breitstone, LLP
The Chancery
190 Willis A venue
Mineola, NY 11501
Re: H&R Recruiters, LLC dlb/a The Hagan-Ricci Group v. John Carter and TIBCO
Software, Inc.
Index No. 60992/2016
Dear Mr. Masri:
I am writing in response to your April 14, 2017 letter regarding the scheduling of
depositions, and your discovery deficiencies in responding to TIBCO Software, Inc.' s discovery
to date. Contrary to your suggestions, the delay in scheduling depositions has been largely caused
by your lack ofresponsiveness and your client's professed unavailability.
As you are aware, on December 30, 2016, we served H&R Recruiters, LLC d/b/a The
Hagan-Ricci Group with Interrogatories, Requests for Production, and a Notice of Deposition
setting the deposition of Lou Ricci for February 1, 2017.
On January 27, 2017, you notified us for the first time that Mr. Ricci would be unavailable
for his deposition on February 1. Accordingly, we agreed to reschedule it to a mutually agreed-
upon later date.
On February 6, you provided responses to TIBCO's Interrogatories and Requests for
Production. In response to a number of those requests, you stated that you would provide
information "[s]ubject to the parties entering a confidentiality stipulation." In response, on
February 13, we emailed you a standard form confidentiality stipulation used by the Court in this
case.
On behalf of TIBCO, Philip A. Goldstein sent you emails on February 23, February 27,
and March 2 attempting to obtain your execution of the form confidentiality stipulation and to
Atlanta I Austin I Baltimore I Brussels I Charl otte I Charlottesville I Chicago I Dallas I Houston I Jacksonville I London I Los Angeles - Century City
Los Angeles · Downtown I New York I Norfolk I Pittsburgh I Ra leigh I Richmond I San Francisco I Tysons I Washington, D .C. I Wilmington
FILED: WESTCHESTER COUNTY CLERK 11/22/2017 05:15 PM INDEX NO. 60992/2016
NYSCEF DOC. NO. 83 RECEIVED NYSCEF: 11/22/2017
Mr. Masri
April 17, 2017
Page 2
reschedule Ms. Ricci's deposition. We offered several dates in March. However, you did not
accept any of the offered dates and did not return the confidentiality stipulation until March 6.
The next day, March 7, 2017, you advised the parties that Mr. Ricci would not be able to
submit to a deposition in March because he was recuperating from a knee replacement. Eventually,
you agreed that Mr. Ricci would likely be available after April 15.
On March 10, 2017, the Comt entered the confidentiality stipulation. Since then, you have
not provided any of the documents that you promised to provide upon the entry of a confidentiality
stipulation.
On March 29, Philip A. Goldstein emailed you again requesting available dates. On March
31, you stated you would speak with your client about dates and that you would follow up with us
on Monday, April 3, which you failed to do.
On April 6, I emailed you regarding available dates for Mr. Ricci's deposition, and the
topics about which you wished to depose a TIBCO representative. You responded in writing that
you were looking to depose "the person with the most knowledge regarding Caiter's employment
with [TIBCO] and preserving electronic data" and that your client was available the last two weeks
of April. Given the lack of adequate notice, it was not surprising that Mr. Carter's attorney was
unavailable on some of the few days that you indicated Mr. Ricci would be available.
I also offered March 1 and 2 as possible dates to depose the TIBCO representative. In
response, on April 14, you unilaterally noticed the deposition of the TIBCO representative for May
4 on topics that were different from those you previously identified. Moreover, I am not available
on May 4, 2017.
In order to move forward with scheduling of deposition, we will need the information that
you promised to provide in response to Defendant TIBCO's discovery requests upon the entry of
the confidentiality stipulation, namely:
• The last known address, telephone number and email address of Richard Schwartz.
(Interrogatory No. 55.)
• The last known address, telephone number and email address of Eugene Grois.
(Interrogatory No. 63.)
• The last known address, telephone number and email address of Theodore Dros
(Intel1'ogatory No. 71.)
• The last known address, telephone number and email address of Ryan Sheftel.
(lntel1'ogatory No. 79.)
• All documents concerning the allegations of paragraph 62 of the Complaint that "Richard
Schwa1tz is a candidate of Plaintiff." (Request No . 57).
• All documents concerning the allegations of paragraph 68 of the Complaint that "Eugene
Grois is a candidate of Plaintiff." (Request No. 63).
• All documents concerning the allegations of paragraph 69 of the Complaint that "Eugene
Grois conducts business with Plaintiff." (Request No. 64).
FILED: WESTCHESTER COUNTY CLERK 11/22/2017 05:15 PM INDEX NO. 60992/2016
NYSCEF DOC. NO. 83 RECEIVED NYSCEF: 11/22/2017
Mr. Masri
April 17, 2017
Page 3
• All documents concerning the allegations of paragraph 74 of the Complaint that
"Theodore Dros is a candidate of Plaintiff." (Request No. 69.)
• All documents concerning the allegations of paragraph 75 of the Complaint that
"Theodore Dros conducts business with Plaintiff." (Request No. 70.)
• All documents concerning the allegations of paragraph 80 of the Complaint that "Ryan
Sheftel is a candidate of Plaintiff." (Request No. 74)
• All documents concerning the allegations of paragraph 81 of the Complaint that "Ryan
Sheftel conducts business with Plaintiff." (Request No. 75).
• All documents concerning the allegations of paragraph 81 of the Complaint that "Ryan
Shefte! conducts business with Plaintiff." (Request No. 76).
• All documents concerning the allegations of paragraph 82 of the Complaint that "Carter
utilized Plaintiffs Proprietary Information, Confidential Information or other information
obtained from Plaintiff in connection with contacting Ryan Shefte!.'' (Request No. 77).
Moreover, a significant number of our discovery requests went unanswered, or you
promised to provide information later. We need responses, or supplemental responses, to a number
of our discovery requests, as follows:
Interrogatory No. 4 requests information regarding damages. In response you stated that
your expert disclosure would provide this information. This is a nonresponsive answer. Please
provide us with the damages HRG alleges it incurred because of the claimed wrongdoing by
TIBCO.
In your response to Interrogatory No. 9, you stated that you are not aware of a candidate
that Carter placed as an employee with a third party following the termination of his employment
with your client, but that discovery is on-going. Please supplement your response with any
information that is responsive to this Interrogatory that you may have learned to date.
Interrogatory Nos. 44, 97, 114, and 116 request that you identify the confidential and/or
proprietary information that Caiier misappropriated, used, or disclosed. In response to these three
interrogatories, your answers were non-responsive and evasive. In response to each interrogatory
you failed to specifically identify any alleged HRG proprietary or confidential information that
Mr. Carter misappropriated, used or disclosed. Instead, you stated, "[a]ll nonpublic information,
all contractually protected information, and all information entrusted to Carter as secret." Please
identify with reasonable specificity what information you are referring to in each of these
responses.
In response to Interrogatory Nos. 92, 95, and 100, you stated that you reserve the right to
supplement. Please inform us whether you have any additional information to provide.
In response to Request Nos. 5-7, 36, 37, 44, you asserted improper objections based on
relevance. The inf01mation requested in each of these Requests is relevant or reasonably
calculated to lead to the discovery ofrelevant information to both your client's claims and
TIBCO's defenses. Accordingly, please provide the responsive documents.
FILED: WESTCHESTER COUNTY CLERK 11/22/2017 05:15 PM INDEX NO. 60992/2016
NYSCEF DOC. NO. 83 RECEIVED NYSCEF: 11/22/2017
Mr. Masri
April 17, 2017
Page 4
In response to Request Nos. 14-15, you assert that you are not "cunently aware of any
such documents in [your] possession." Please advise as to whether this remains the case and, if
not, please supplement your response accordingly.
In response to Request Nos. 19, 21, 22, 47, you stated that you will provide the requested
documents with your expert disclosure. As with your Interrogatory answers, this is a
nonresponsive answer. Please provide us with the requested information.
In response to Request Nos. 45, 48-50, 52, 54, 56, 58- 62, 65-68, 71, 74, 78- 99, and
101-104, you asserted some variation on the theme that you have not currently identified any
additional responsive documents, but note that discovery was not yet completed. Please advise
as to whether you have additional information to provide and supplement your response
accordingly.
In response to Request Nos. 100 and 105, you asserted that the Request is "so vague that
it is impossible to respond." This is another improper objection because these Requests ask for
documents that directly relate to allegations of your Complaint. Please state whether you have
any responsive documents and provide them.
You also failed to object or provide any response with respect to Request Nos. 72 and 73 .
We ask that you provide this information immediately.
Given these circumstances, I agree that the patties should request a one month extension
of time to complete depositions. In addition, please tell us your availability to depose witnesses or
attend depositions in May.
cc: Brian K. Condon (via email)
Laura M. Catina (via email)
89046783_1
Preview
FILED: WESTCHESTER COUNTY CLERK 11/22/2017 05:15 PM INDEX NO. 60992/2016 NYSCEF DOC. NO. 83 RECEIVED NYSCEF: 11/22/2017 EXHIBIT A FILED: WESTCHESTER COUNTY CLERK 11/22/2017 05:15 PM INDEX NO. 60992/2016 NYSCEF DOC. NO. 83 RECEIVED NYSCEF: 11/22/2017 From: DiMattia, Michael J. To: Michael Masri Cc: "brian@condonlawoffices.com"; "Laura@condonlawoffices.com"; DiMattia, Michael J. Subject: H&R Recruiters v John Carter and TIBCO Date: Tuesday, April 18, 2017 11:43:00 AM Attachments: 20170418113513384.pdf Dear Mr. Masri, Attached is a copy of Mr. DiMattia’s letter to you in connection to the above- referenced matter. Thank you. Regards, Eileen Chin Practice Assistant McGuireWoods LLP 1345 Avenue of the Americas 7th Floor New York, NY 10105-0106 T: +1 212 548 7080 echin@mcguirewoods.com VCard | www.mcguirewoods.com FILED: WESTCHESTER COUNTY CLERK 11/22/2017 05:15 PM INDEX NO. 60992/2016 NYSCEF DOC. NO. 83 RECEIVED NYSCEF: 11/22/2017 McGuireWoods LLP 1345 Avenue of the Ameri cas Seventh Floor New York, NY 101 05-01 06 Phone: 212 .548.2 1 00 Fax: 212 .548.2 150 www.mcgu irewoods.com Michael J. DIMattia Direct: 212.548.7009 McGUIREWCDDS mdimania@mcguirewoods.com Fax: 212.715.2312 April18,2017 VIA EMAIL AND REGULAR MAIL Michael H. Masri, Esq. Meltzer, Lippe, Goldstein & Breitstone, LLP The Chancery 190 Willis A venue Mineola, NY 11501 Re: H&R Recruiters, LLC dlb/a The Hagan-Ricci Group v. John Carter and TIBCO Software, Inc. Index No. 60992/2016 Dear Mr. Masri: I am writing in response to your April 14, 2017 letter regarding the scheduling of depositions, and your discovery deficiencies in responding to TIBCO Software, Inc.' s discovery to date. Contrary to your suggestions, the delay in scheduling depositions has been largely caused by your lack ofresponsiveness and your client's professed unavailability. As you are aware, on December 30, 2016, we served H&R Recruiters, LLC d/b/a The Hagan-Ricci Group with Interrogatories, Requests for Production, and a Notice of Deposition setting the deposition of Lou Ricci for February 1, 2017. On January 27, 2017, you notified us for the first time that Mr. Ricci would be unavailable for his deposition on February 1. Accordingly, we agreed to reschedule it to a mutually agreed- upon later date. On February 6, you provided responses to TIBCO's Interrogatories and Requests for Production. In response to a number of those requests, you stated that you would provide information "[s]ubject to the parties entering a confidentiality stipulation." In response, on February 13, we emailed you a standard form confidentiality stipulation used by the Court in this case. On behalf of TIBCO, Philip A. Goldstein sent you emails on February 23, February 27, and March 2 attempting to obtain your execution of the form confidentiality stipulation and to Atlanta I Austin I Baltimore I Brussels I Charl otte I Charlottesville I Chicago I Dallas I Houston I Jacksonville I London I Los Angeles - Century City Los Angeles · Downtown I New York I Norfolk I Pittsburgh I Ra leigh I Richmond I San Francisco I Tysons I Washington, D .C. I Wilmington FILED: WESTCHESTER COUNTY CLERK 11/22/2017 05:15 PM INDEX NO. 60992/2016 NYSCEF DOC. NO. 83 RECEIVED NYSCEF: 11/22/2017 Mr. Masri April 17, 2017 Page 2 reschedule Ms. Ricci's deposition. We offered several dates in March. However, you did not accept any of the offered dates and did not return the confidentiality stipulation until March 6. The next day, March 7, 2017, you advised the parties that Mr. Ricci would not be able to submit to a deposition in March because he was recuperating from a knee replacement. Eventually, you agreed that Mr. Ricci would likely be available after April 15. On March 10, 2017, the Comt entered the confidentiality stipulation. Since then, you have not provided any of the documents that you promised to provide upon the entry of a confidentiality stipulation. On March 29, Philip A. Goldstein emailed you again requesting available dates. On March 31, you stated you would speak with your client about dates and that you would follow up with us on Monday, April 3, which you failed to do. On April 6, I emailed you regarding available dates for Mr. Ricci's deposition, and the topics about which you wished to depose a TIBCO representative. You responded in writing that you were looking to depose "the person with the most knowledge regarding Caiter's employment with [TIBCO] and preserving electronic data" and that your client was available the last two weeks of April. Given the lack of adequate notice, it was not surprising that Mr. Carter's attorney was unavailable on some of the few days that you indicated Mr. Ricci would be available. I also offered March 1 and 2 as possible dates to depose the TIBCO representative. In response, on April 14, you unilaterally noticed the deposition of the TIBCO representative for May 4 on topics that were different from those you previously identified. Moreover, I am not available on May 4, 2017. In order to move forward with scheduling of deposition, we will need the information that you promised to provide in response to Defendant TIBCO's discovery requests upon the entry of the confidentiality stipulation, namely: • The last known address, telephone number and email address of Richard Schwartz. (Interrogatory No. 55.) • The last known address, telephone number and email address of Eugene Grois. (Interrogatory No. 63.) • The last known address, telephone number and email address of Theodore Dros (Intel1'ogatory No. 71.) • The last known address, telephone number and email address of Ryan Sheftel. (lntel1'ogatory No. 79.) • All documents concerning the allegations of paragraph 62 of the Complaint that "Richard Schwa1tz is a candidate of Plaintiff." (Request No . 57). • All documents concerning the allegations of paragraph 68 of the Complaint that "Eugene Grois is a candidate of Plaintiff." (Request No. 63). • All documents concerning the allegations of paragraph 69 of the Complaint that "Eugene Grois conducts business with Plaintiff." (Request No. 64). FILED: WESTCHESTER COUNTY CLERK 11/22/2017 05:15 PM INDEX NO. 60992/2016 NYSCEF DOC. NO. 83 RECEIVED NYSCEF: 11/22/2017 Mr. Masri April 17, 2017 Page 3 • All documents concerning the allegations of paragraph 74 of the Complaint that "Theodore Dros is a candidate of Plaintiff." (Request No. 69.) • All documents concerning the allegations of paragraph 75 of the Complaint that "Theodore Dros conducts business with Plaintiff." (Request No. 70.) • All documents concerning the allegations of paragraph 80 of the Complaint that "Ryan Sheftel is a candidate of Plaintiff." (Request No. 74) • All documents concerning the allegations of paragraph 81 of the Complaint that "Ryan Sheftel conducts business with Plaintiff." (Request No. 75). • All documents concerning the allegations of paragraph 81 of the Complaint that "Ryan Shefte! conducts business with Plaintiff." (Request No. 76). • All documents concerning the allegations of paragraph 82 of the Complaint that "Carter utilized Plaintiffs Proprietary Information, Confidential Information or other information obtained from Plaintiff in connection with contacting Ryan Shefte!.'' (Request No. 77). Moreover, a significant number of our discovery requests went unanswered, or you promised to provide information later. We need responses, or supplemental responses, to a number of our discovery requests, as follows: Interrogatory No. 4 requests information regarding damages. In response you stated that your expert disclosure would provide this information. This is a nonresponsive answer. Please provide us with the damages HRG alleges it incurred because of the claimed wrongdoing by TIBCO. In your response to Interrogatory No. 9, you stated that you are not aware of a candidate that Carter placed as an employee with a third party following the termination of his employment with your client, but that discovery is on-going. Please supplement your response with any information that is responsive to this Interrogatory that you may have learned to date. Interrogatory Nos. 44, 97, 114, and 116 request that you identify the confidential and/or proprietary information that Caiier misappropriated, used, or disclosed. In response to these three interrogatories, your answers were non-responsive and evasive. In response to each interrogatory you failed to specifically identify any alleged HRG proprietary or confidential information that Mr. Carter misappropriated, used or disclosed. Instead, you stated, "[a]ll nonpublic information, all contractually protected information, and all information entrusted to Carter as secret." Please identify with reasonable specificity what information you are referring to in each of these responses. In response to Interrogatory Nos. 92, 95, and 100, you stated that you reserve the right to supplement. Please inform us whether you have any additional information to provide. In response to Request Nos. 5-7, 36, 37, 44, you asserted improper objections based on relevance. The inf01mation requested in each of these Requests is relevant or reasonably calculated to lead to the discovery ofrelevant information to both your client's claims and TIBCO's defenses. Accordingly, please provide the responsive documents. FILED: WESTCHESTER COUNTY CLERK 11/22/2017 05:15 PM INDEX NO. 60992/2016 NYSCEF DOC. NO. 83 RECEIVED NYSCEF: 11/22/2017 Mr. Masri April 17, 2017 Page 4 In response to Request Nos. 14-15, you assert that you are not "cunently aware of any such documents in [your] possession." Please advise as to whether this remains the case and, if not, please supplement your response accordingly. In response to Request Nos. 19, 21, 22, 47, you stated that you will provide the requested documents with your expert disclosure. As with your Interrogatory answers, this is a nonresponsive answer. Please provide us with the requested information. In response to Request Nos. 45, 48-50, 52, 54, 56, 58- 62, 65-68, 71, 74, 78- 99, and 101-104, you asserted some variation on the theme that you have not currently identified any additional responsive documents, but note that discovery was not yet completed. Please advise as to whether you have additional information to provide and supplement your response accordingly. In response to Request Nos. 100 and 105, you asserted that the Request is "so vague that it is impossible to respond." This is another improper objection because these Requests ask for documents that directly relate to allegations of your Complaint. Please state whether you have any responsive documents and provide them. You also failed to object or provide any response with respect to Request Nos. 72 and 73 . We ask that you provide this information immediately. Given these circumstances, I agree that the patties should request a one month extension of time to complete depositions. In addition, please tell us your availability to depose witnesses or attend depositions in May. cc: Brian K. Condon (via email) Laura M. Catina (via email) 89046783_1