U.S. Home Corp. v. Settlers Crossing, LLC
U.S. Home Corp. v. Settlers Crossing, LLC
2012 WL 13014153 (D. Md. 2012)
October 24, 2012
Connelly, William, United States Magistrate Judge
Summary
The court considered iStar's request to name four new custodians in order to search for documents related to the Bevard project. The court denied iStar's request to name three custodians, and granted iStar's request to name four custodians, including Jon Jaffe, Bob Strudler, Mark Krenzer, and Troy Hammons. The court also ordered that the search of all custodians' emails and other electronic files must be limited to the terms Bevard and Piscataway.
Additional Decisions
U.S. HOME CORPORATION, Plaintiff,
v.
SETTLERS CROSSING, L.L.C., WASHINGTON PARK ESTATES, LLC, BEVARD DEVELOPMENT CO. & STEVEN B. SANDLER, Defendants.
SETTLERS CROSSING, L.L.C., WASHINGTON PARK ESTATES, LLC, BEVARD DEVELOPMENT CO. & iSTAR FINANCIAL, INC., Counterplaintiffs,
v.
U.S. HOME CORPORATION & LENNAR CORPORATION, Counterdefendants
v.
SETTLERS CROSSING, L.L.C., WASHINGTON PARK ESTATES, LLC, BEVARD DEVELOPMENT CO. & STEVEN B. SANDLER, Defendants.
SETTLERS CROSSING, L.L.C., WASHINGTON PARK ESTATES, LLC, BEVARD DEVELOPMENT CO. & iSTAR FINANCIAL, INC., Counterplaintiffs,
v.
U.S. HOME CORPORATION & LENNAR CORPORATION, Counterdefendants
Civil Action No. DKC-08-1863
United States District Court, D. Maryland
Signed October 24, 2012
Counsel
Adam B. Lavinthal, David L. Harris, David S. Sager, Jason E. Halper, Lowenstein Sandler PC, Ryan J. Cooper, Goodell DeVries Leech and Dann LLP, Roseland, NJ, Daniel M. Petrocelli, David Marroso, O'Melveny and Myers LLP, Los Angeles, CA, David Kendall Roberts, O'Melveny and Myers LLP, Rakesh Kilaru, Wilkinson Walsh + Eskovitz LLP, Washington, DC, for Plaintiff.Thomas R. Folk, John J. Sabourin, Jr., Joseph Severino Luchini, Stephen Todd Fowler, Reed Smith LLP, Falls Church, VA, Lawrence Roger Holzman, The Holzman Law Firm, Timothy Francis Maloney, Veronica Byam Nannis, Kara L. Fischer, Joseph Greenwald and Laake PA, Greenbelt, MD, Eric A. Kuwana, Katten Muchin Rosenman LLP, Washington, DC, Jennifer Cecelia Ryan, Timothy J. Patenode, Katten Muchin Rosenman LLP, Chicago, IL, for Defendants.
Connelly, William, United States Magistrate Judge
ORDER
*1 Upon consideration of a series of four letters exchanged by counsel for iStar Financial Inc. (hereinafter “iStar”) and counsel for Lennar Corporation and U.S. Home Corporation (hereinafter collectively “Lennar”) concerning the new search terms and custodians proposed in May 2012 by iStar to Lennar (see attachments to the July 6, 2012 status update by iStar), IT IS this 24th day of October, 2012 by the United States District Court for the District of Maryland, ORDERED:
1. That iStar's request for the designation of new custodians and the application of new search terms BE, and the same hereby IS, GRANTED IN PART & DENIED IN PART as outlined below;
2. That in the Order of April 27, 2012, whereby the Court granted in part and denied in part Lennar's Motion for Clarification of March 9, 2012 Order, the Court stated,
2. That the Court's Order of March 9, 2012 (ECF No. 359) shall be CLARIFIED as follows:
a. That Lennar Corporation (“Lennar”) has fulfilled its obligations to comply with paragraph 2 of the Order as to:
1. Production of and certifications regarding the production of ESI from Rory Dickens; and
2. The statement identifying from which custodians, new or old, documents have been collected;
b. That no additional search terms must be employed for the purpose of locating documents related to the Bevard project;
c. That no additional custodians must be searched for the purposes of locating documents responsive to iStar Financial Inc.'s (“iStar”) discovery requests;
d. That iStar must identify what additional search terms it wishes Lennar to run, and the custodians[1] for whom iStar wishes these search terms to be run against. Lennar will thereafter be given an opportunity to object to these search terms. The Court will ultimately decide which precise search terms must be run and against which custodians these terms must be run.
e. That the twenty (20) day deadline in the Order does not apply to the new searches referenced in paragraph 2d, supra. The Court will provide Lennar with additional time to run these new searches[.]
ECF No. 386 at 2.
The parties disagree about the scope and meaning of paragraph 2. In responding to the May 4, 2012 letter from John Rosans, Esquire, counsel for iStar, Louis Rouleau, Esquire, counsel for Lennar, wrote,
[T]he Court clearly ruled that “no additional search terms must be employed for the purpose of locating documents relate to the Bevard project.” (Order ¶ 2(b).) As contemplated by the Court, no additional searches must be run relating to the Bevard-specific Requests for Production Numbers 1, 2, and 3, and any additional searches must related to the sole non-Bevard request at issue: Request for Production Number 8, concerning directives to stop or postpone work in 2007.
*2 Letter from Rouleau, Esq. to Rosans, Esq. of 5/18/12 at 2.
In his letter of June 21, 2012, Mr. Rosans explained his interpretation of the Court's Order.
We do not agree with you that the Court's language in its April 27, 2012 Order shut[s] off iStar's right entirely to propose new search terms relating to the Bevard project. First, the Court recognized in its March 9, 2012 Order that the “negotiated search terms” from 2009, did not cast a wide enough net to capture documents relevant to the parties['] claims and defenses. Second, the Court's Order on reconsideration specifically states that “iStar must identify what additional search terms it wishes Lennar to run,” without limiting iStar to Request for Production No. 8. Apr. 27, 2012 Order (Doc. No. 386), ¶ 2d. Indeed, there is no mention at all of Request for Production No. 8 in that Order. Third, Lennar's own moving papers, as cited above, as well as its proposed order, did not so limit iStar, and in fact, invited iStar to propose additional search terms without expressly limiting iStar to Request for Production No. 8. Fourth, the Court's Order of April 27, 2012, similarly indicates that “no additional custodians must be searched [by Lennar] for purposes of locating documents responsive to [iStar's] discovery requests” generally, then immediately asks iStar to identify custodians, including “newly identified custodians,” against whom searches are to be run. Id., ¶¶ 2c-d. Quite clearly, then, the intention of the Court's Order on clarification was to (a) recognize that, as of that date, Lennar had satisfactorily complied with the Court's previous Order, and (b) direct iStar and Lennar to negotiate new search terms and custodians relevant to past discovery requests and the parties' respective claims and defenses. While the parties may disagree with the potential breadth and burden of the proposed search terms, there simply is nothing to indicate that iStar's terms must be limited to one narrow category of documents (relating to Lennar directives to stop or postpone work in 2007).
Letter from Rosans, Esq. to Rouleau, Esq. of 6/21/12 at 3-4.
Mr. Rosans' interpretation is consistent with the Court's intention in issuing the April 27, 2012 Order clarifying the March 9, 2012 Order. In its memorandum of law in support of its motion for clarification of March 9, 2012 Order, Lennar wrote,
iStar has not proposed any specific, additional search terms that it believes Lennar should run, and Lennar believes it has exhausted the list of search terms that would locate documents related to the Bevard project.
ECF No. 363-1 at 6 (footnote omitted);
Of course, Lennar will run the new search terms the Court believes are necessary; Lennar simply requires additional clarity regarding these precise terms to ensure full and timely compliance with the Court's Order. As the Order stands now, and given that iStar itself has not proposed any specific new key words, Lennar requires additional clarification so that it does not run the risk of embarking on additional electronic searches that will not wholly satisfy the mandate of the Court.
*3 Id. at 7-8;
3. That, having resolved the scope and meaning of paragraph 2 from the April 27, 2012 Order, the Court now turns its attention to the disputed list of custodians and proposed search terms;
4. That iStar has identified the following individuals as new custodians whose electronic files must be searched:
(a) Bruce Harvey (b) John White (c) Jon Jaffe (d) Beth May (e) Troy Hammons (f) Theresa Anderson (g) Mark Sustana (h) Bob Strudler (i) Mark Krenzer (j) Carl Sawicki (k) Ashenafi Woldemariam (l) all outside transactional/non-litigation counsel
See Letter from Rosans, Esq. to Rouleau, Esq. of 5/4/12 at 2-3;
5. That the Court resolves the disputed newly identified custodians as follows:
Bruce Harvey: “Mr. Harvey was Lennar's division president on the homebuilding side for Maryland and, therefore, his name appears on emails and other documents regarding Lennar's plans to build on the Bevard Property – even if closing never occurred. Lennar's production to date indicates that, not only was Mr. Harvey kept apprised of the status of the Bevard deal, but that he and his homebuilding team actively participated in providing home price, product, and cost opinions.” Letter from Rosans, Esq. to Rouleau, Esq. of 5/4/12 at 2. In response Mr. Rouleau explained Mr. Harvey's role on the homebuilding side of the Maryland Division, meaning that Mr. Harvey “had no involvement whatsoever in the assessment of the conditions precedent or other matters concerning closing on the Bevard property. Indeed, [Mr.] Harvey ... would only have responsibility for Bevard after closing occurred and Lennar was ready to build homes.” Letter from Rouleau, Esq. to Rosans, Esq. of 7/2/12 at 6. In support of identifying Bruce Harvey as a new custodian, Mr. Rosans has submitted exhibits 8-10, consisting of e-mails were Mr. Harvey is the recipient or originator of e-mails. These e-mails reflect Mr. Harvey's role as stated by Lennar. The Court thus DENIES iStar's request to name Bruce Harvey as a new custodian.
John White: “Similar to Mr. Harvey, documents already produced by Lennar from other custodians indicate that Mr. White was on correspondence regarding Bevard. He was also involved in substantive discussions regarding Lennar's other Maryland deals and otherwise involved in discussions regarding the Maryland division's asset reduction plan, all of which are relevant and warrant a search of his files.” Letter from Rosans, Esq. to Rouleau, Esq. of 5/4/12 at 2. In response Mr. Rouleau explained that Mr. White, like Mr. Harvey, worked on the homebuilding side of the Maryland Division, that Mr. White was not directly involved with the Bevard project and thus Mr. White's direct involvement with the Bevard project would not be triggered until Lennar was ready to build homes, which, necessarily, would not occur until after closing. SeeLetter from Rouleau, Esq. to Rosans, Esq. of 5/18/12 at 5. All parties agree that closing never occurred in this case and, consequently, this litigation ensued. The Court thus DENIES iStar's request to name John White as a new custodian.
*4 Carl Sawicki: Mr. Rosans notes Mr. Sawicki has served as a regional and/or division environmental manager. “[Al]though discovery responses provided by Lennar indicate that environmental managers were ‘typically not involved in land acquisition’ matters, documents produced from other custodians within Lennar indicate that Mr. Sawicki was kept apprised of the status of the Bevard project.” Letter from Rosans, Esq. to Rouleau, Esq. of 5/4/12 at 3. Mr. Sawicki was deposed on March 14, 2011. The Court finds the following testimony pertinent to this dispute.
Q: What was the extent of your work, if any, relating to the Bevard property?
A: I actually had no involvement whatsoever with the Bevard property other than being copied on an e-mail.
* * *
A: You know, my involvement is limited to sediment and erosion control, stormwater management, which typically takes place after purchase and during construction. So unless we actually bought the piece of property and began home building, I really wouldn't have any involvement with it.
Sawicki Dep. 23:8-12, 24:2-7.
All parties agree that closing never occurred in this case and, consequently, this litigation ensued. The Court thus DENIES iStar's request to name Carl Sawicki as a new custodian.
Ashenafi Woldemariam: For the reasons similar to Mr. Sawicki, iStar requests the files of Mr. Woldemariam be searched. Despite Lennar's response that Mr. Woldemariam was primarily responsible for stormwater management issues and that he did not have a role regarding the Bevard property or the Purchase Agreement, counsel for iStar nevertheless insists Mr. Woldemariam's files be searched. “If [Mr. Woldemariam] had no role in the Bevard project, then there should not be many (if any) documents for Lennar or its counsel to review based on the Bevard and Piscataway search terms.” Letter from Rosans, Esq. to Rouleau, Esq. of 6/21/12 at 7. As counsel for Lennar asserts, “just because someone received an email certainly does not mean that person was involved in a meaningful way with the project, or would have non-duplicative materials.” Letter from Rouleau, Esq. to Rosans, Esq. of 7/2/12 at 5. iStar fails to demonstrate the relevancy of searching Mr. Woldemariam's files. Although iStar does not believe the task would be that burdensome, the relevancy must be established before addressing the issue of burdensomeness. The Court DENIES iStar's request to name Ashenafi Woldemariam as a new custodian.
Mark Sustana: “Mr. Sustana serves as both secretary and general counsel for Lennar. His role as general counsel does not automatically cloak all of his documents or correspondence in the attorney-client or work-product privileges. Moreover, documents already produced by Lennar indicate that a ‘Mark’ – which we presume to be Mr. Sustana – served in the role of ‘deal manager’ on the Bevard deal and other Maryland deals by October 15, 2007. Thus, it appears obvious that Mr. Sustana's files and communications would have included non-privileged business information related to his ‘deal manager’ hat.” Letter from Rosans, Esq. to Rouleau, Esq. of 5/4/12 at 3. In the letter of July 2, 2012 counsel for Lennar explained Mr. Sustana's involvement with the Bevard project. “Mark Sustana, Esq. is Lennar's general counsel. As Mr. Sustana explained under oath, ‘I am not a business person and have never served as one at Lennar. The only role I have served is to provide legal analysis and advice.’ (Doc. No. 417-3, Sustana Decl. ¶ 9.) Moreover, Mr. Sustana did not draft any of the transactional documents relating to Bevard, and served solely as a legal counselor with respect to the Bevard project. (Id. ¶ 18.) Accordingly, Mr. Sustana's materials are covered by privilege, and any non-privileged materials would be duplicative of documents previously produced in discovery. (See, e.g., Ex. 10, emails sent to B. Bilzin, outside counsel, copying R. Beckwitt, R. Jacoby, R. Kunkle, E. Haddad and other custodians previously produced in discovery.)” Letter from Rouleau, Esq. to Rosans, Esq., of 7/2/12 at 7. That the Court has addressed a similar issue about Mr. Sustana's files in the Memorandum Opinion & Order of September 6, 2012 (ECF No. 455). For the reasons articulated in the September 6, 2012 ruling as well as the reasons outlined by Mr. Rouleau, the Court DENIES iStar's request to name Mark Sustana as a new custodian.
*5 Troy Hammons: “As Controller of the Maryland division, Mr. Hammons was involved in discussions regarding the ‘mothballing’ of the Bevard project in the fall of 2007, as well as the Maryland division's asset reduction plan. Not only would documents generated by Mr. Hammons regarding the Bevard and other Maryland projects be relevant, but correspondence sent to and from Mr. Hammons would be highly relevant.” Letter from Rosans, Esq. to Rouleau, Esq. of 5/4/12 at 2. In his response Mr. Rouleau acknowledged that Mr. Hammons is a former Controller of the Maryland Land Division. Mr. Rouleau asserts all accounting documents concerning Bevard have been produced. See Letter from Rouleau, Esq. to Rosans, Esq. of 5/18/12 at 6. In his June 21, 2012 letter Mr. Rosans notes Mr. Hammons was kept apprised of the original Corporate Investment Committee (“CIC”) approval of the Bevard deal in November 2005. “Mr. Hammons was involved in discussions concerning the ‘mothballing’ of the Bevard Property in and around the fall of 2007.” Letter from Rosans, Esq. to Rouleau, Esq. of 6/21/12 at 9. Mr. Rosans proposes limited search terms for Mr. Hammons' files. In responding to Mr. Rosans, Mr. Rouleau explains that Mr. Hammons, at most, “served a supportive role to other[ ] employees in the Maryland Division, such as Robert Jacoby and Chris Lannin, and accordingly would only have duplicative materials.” Letter from Rouleau, Esq. to Rosans, Esq. of 7/2/12 at 6. Further, Mr. Rouleau asserts Lennar's accounting is irrelevant to issues in this litigation. Id. Exhibit 14 to Mr. Rosans' July 2, 2012 letter is a September 12, 2007 e-mail from Jarod D. Blaney to Troy Hammons regarding mothballed communities. This e-mail begins, “We have been instructed to – and will –mothball the Bevard community (3080200) for what will most definitely be 1 year or more. Based on market conditions, this stance will be re-evaluated in the spring of FY08 as to how much longer the community should be mothballed.” Because Mr. Hammons received such a directive, and may have receive other directives regarding other Maryland communities, the Court hereby GRANTS iStar's request to name Troy Hammons as a new custodian. The search of Mr. Hammons' e-mails and other electronic files SHALL BE LIMITED TO the terms Bevard and Piscataway.
Theresa Anderson: Like Troy Hammons, Ms. Anderson is a former Controller of the Maryland Land Division. Although Ms. Anderson is a recipient of e-mails concerning the Bevard property and other deals from the Maryland Land Division, her role appears to be truly supportive. For instance, in the e-mail of July 12, 2006, Mr. Jacoby addresses the following remarks to Ms. Anderson: “Theresa – I know you are out of town on [T]uesday. I would like to have at my disposal a one page for all communities['] gross margin analysis and if possible, the PTD reports brought up to date.” Letter from Rosans, Esq. to Rouleau, Esq. of 6/21/12, Ex. 15. Further, the mere fact that Ms. Anderson and Mr. Hammons receive courtesy copies of a November 25, 2005 memorandum from Robert Jacoby regarding the CIC approval of the purchase of Bevard Farm Estates is not significant to the issues in this litigation since Ms. Anderson and Mr. Hammons were Controllers of the Maryland Land Division, i.e.,accountants, and thus they, naturally, would be notified of the approval of a purchase. For these reasons the Court DENIES iStar's request to name Theresa Anderson as a new custodian.
Bob Strudler: “According to Lennar's own interrogatory responses, Mr. Strudler has been the only CIC member from 2005 that Lennar can identify. And, the Maryland division's request for CIC approval of the purchase of WPE in November 2005 appears to have been directed to Mr. Strudler. Therefore, a search of his files is warranted.” Letter from Rosans, Esq. to Rouleau, Esq. of 5/4/12 at 3. Mr. Rouleau responded to this request in his May 18, 2012 letter. “Mr. Strudler passed away in 2006. It is unlikely that his electronic materials would still exist. Regardless, we have seen no indication that Mr. Strudler had any other involvement in the Bevard project, besides presumably reviewing the Bevard Greenbook, which has already been produced in this litigation.” Letter from Rouleau, Esq. to Rosans, Esq. of 5/18/12 at 6. Mr. Rosans, in turn, responded to Mr. Rouleau's letter. “You have represented that Mr. Strudler passed away in 2006. However, Lennar has identified no other CIC member from 2005, with involvement in or oversight of the Bevard transaction. The Maryland division's request for CIC approval of the purchase of WPE in November of 2005 appears to have been directed to Mr. Strudler. See Ex. 18 (USH_00401018-19). To the extent hard copy files or electronic files exist for Mr. Strudler, we believe they should be searched. We are willing to limit any electronic search of Mr. Strudler's files to the terms Bevard and Piscataway.” Letter from Rosans, Esq. to Rouleau, Esq. of 6/21/12 at 10. Finally, Mr. Rouleau replied. “Bob Strudler passed away in 2006, and it is unlikely that his electronic materials or hard copy documents still exist. Given that you have not identified any documents showing substantive involvement by Mr. Strudler in the Bevard project, besides his apparent review of the Greenbook, an attempt to search Mr. Strudler's files would be futile.” Letter from Rouleau, Esq. to Rosans, Esq. of 7/2/12 at 6. The Court disagrees. Since Lennar has not identified any other CIC member from 2005, Lennar must search its databases for any electronic files of Bob Strudler. For this reason the Court GRANTS iStar's request to name Bob Strudler as a new custodian. The search of Mr. Strudler's e-mails and other electronic files SHALL BE LIMITED TO the terms Bevard and Piscataway.
*6 Mark Krenzer: “From the documents produced to date, Mr. Krenzer appears to have been an asset manager for the CIC with oversight of the Bevard deal for, at a minimum, part of 2006. Therefore, a search of his files is warranted.” Letter from Rosans, Esq. to Rouleau, Esq. of 5/4/12 at 3. Mr. Rouleau responded to this request. “Mr. Krenzer was a member of the CIC in 2006 and 2007. He was responsible for Lennar's Texas region and was not involved in Bevard. (See Copland Dep. 28:17-25.) Accordingly, Mr. Krenzer was not the CIC member responsible for the Bevard project – that was Blake Copeland, whose files have already been searched and produced.” Letter from Rouleau, Esq. to Rosans, Esq. of 5/18/12 at 6. Mr. Rosans thereafter replied. “Your representation in your May 18, 2012 letter, that Mr. Krenzer ‘was not involved in Bevard,’ and your representation during our call that he simply was one of many who was copied on emails referencing Bevard, do not comport with the handful of documents Lennar has produced from other custodians with Mr. Krenzer's name on them. To the contrary, he appears to have been the Bevard CIC asset manager for 2006 at least. And, in that role or otherwise, it appears that he drafted ‘Purchase Summaries' for the Bevard Property and was responsible for providing substantive updates regarding the Bevard deal to Lennar's President and Chief Executive Officer, Stuart Miller. See, e.g., Ex. 19 (USH-00036364-67), Ex. 20 (USH_00492929-30). We are willing to limit any electronic search of Mr. Krenzer's files to the terms Bevard and Piscataway.” Letter from Rosans, Esq. to Rouleau, Esq. of 6/21/12 at 10-11. Finally, Mr. Rouleau responded. “Mark Krenzer was a member of the CIC in 2006 and 2007 and was responsible for Lennar's Texas region. (See Ex. 8, Copeland Dep. 28:17-25.) Blake Copeland, not Mr. Krenzer, was the CIC member responsible for the Bevard project. Ms. Copeland's files have already been searched and produced. (Doc. No. 382-1, Ames Decl. ¶¶ 4, 11 n.2, 15.)” Letter from Rouleau, Esq. to Rosans, Esq. of 7/2/12 at 6-7. The Court has reviewed Ms. Copeland's testimony were she states Mark Krenzer was responsible for the Texas region. However, Exhibits 19 and 20 of Mr. Rosans' June 21, 2012 letter clearly reflect Mr. Krenzer's involvement with the Bevard property. For instance, in the August 3, 2006 e-mail, Mr. Krenzer wrote, “I've attached a copy of my MAG 7 summary for the Bevard Community in Maryland. Please feel free to contact me if you have any questions.” Ex. 19 at 2 (emphasis added). Also, in e-mails from July of 2006 Mr. Krenzer requested updates from Robert Jacoby about the Bevard deal. For these reasons the Court GRANTS iStar's request to name Mark Krenzer as a new custodian. The search of Mr. Krenzer's e-mails and other electronic files SHALL BE LIMITED TO the terms Bevard and Piscataway.
Jon Jaffe: “Documents already produced to date by Lennar indicate that Mr. Jaffe was involved in discussions regarding attempts to land bank the Bevard deal, land impairments generally, and how the Bevard asset would be treated by Lennar for internal accounting purposes. As Chief Operating Officer, his involvement was not limited to post-litigation settlement negotiations. Therefore, a search of his files is warranted.” Letter from Rosans, Esq. to Rouleau, Esq. of 5/4/12 at 2. Mr. Rouleau responded. “Jon Jaffe's only significant involvement in Bevard relates to settlement negotiations between iStar and Lennar. Further, any materials in Mr. Jaffe's possession would be duplicative documents already produced in discovery, such as spreadsheets regarding Lennar's deals nationwide. (See, e.g., Jan. 29, 2009 Email to J. Jaffe, copying R. Beckwitt, B. Copeland, & M. White, all of whom were previously searched and produced in discovery [ush_00118744].)” Letter from Rouleau, Esq. to Rosans, Esq. of 5/18/12 at 5. Mr. Rosans replied. “You have represented that the only significant involvement in the Bevard deal of Mr. Jaffe, Lennar's Chief Operating Office[r], has related to post-litigation settlement negotiations between iStar and Lennar. However, Mr. Jaffe was kept apprised of the original Corporate Investment Committee (“CIC”) approval of the deal in November 2005 (Ex. 11; USH_00646421), kept apprised of the deal status during negotiation of the ‘Second Amendment’ in the spring of 2007 (Ex. 12; USH-00036447), and also participated in key ‘Ops Meetings' where strategy regarding the Bevard deal was discussed by Lennar's management team (Ex. 13; USH_00541138-39). To limit any purported burden, we would propose limiting a search of Mr. Jaffe's email and other electronic files to the terms Bevard and Piscataway.” Letter from Rosans, Esq. to Rouleau, Esq. of 6/21/12 at 9. Mr. Rouleau replied. “Jon Jaffe's primary involvement in Bevard relates to settlement negotiations between iStar and Lennar. Further, any materials in Mr. Jaffe's possession would be duplicative of documents already produced in discovery, such as spreadsheets regarding Lennar's deals nationwide. (See, e.g., Ex. 9, Jan. 29, 2009 email to J. Jaffe (copying R. Beckwitt, B. Copeland, & M. White, all of whom were previously searched and produced in discovery).)” Letter from Rouleau, Esq. to Rosans, Esq. of 7/2/12 at 7. In light of Mr. Jaffe's high level position, as Lennar's Chief Operating Officer and further considering that Rick Beckwitt ensured Mr. Jaffe was kept apprised of the Bevard project, as reflected in the March 27, 2007 e-mail from Mr. Beckwitt to Mr. Jaffe, whereby Mr. Beckwitt forwarded to Mr. Jaffe a report from Robert Jacoby, the Court finds e-mails Mr. Jaffe received regarding Bevard is relevant. For these reasons the Court GRANTS iStar's request to name Jon Jaffe as a new custodian. The search of Mr. Jaffe's e-mails and other electronic files SHALL BE LIMITED TO the terms Bevard and Piscataway.
*7 Beth May: Counsel for Lennar has agreed to iStar's request that Ms. May be added as a new custodian, conditioned on this concession resolving fully the dispute regarding search terms and custodians. See Letter from Rouleau, Esq. to Rosans, Esq. of 7/2/12 at 8. The Court has determined that some of the custodians identified by iStar are appropriate. The Court also finds, for the reasons stated by iStar's counsel, Ms. May's electronic materials must be searched. See Letter from Rosans, Esq. to Rouleau, Esq. of 5/4/12 at 2 (“Lennar's Reply was simply wrong when it stated that Ms. May was not involved in the Bevard project. Multiple documents already produced clearly indicate that Ms. May was instructed, no later than October 1, 2007, to look for ways to ‘off load’ the Bevard deal with third party land banks or financing partners, and that Ms. May in fact engaged in that pursuit. To date, Lennar has produced no documents generated from Ms. May or located within her files that would speak to her efforts in this capacity.”). For these reasons, the Court GRANTS iStar's request to name Beth May as a new custodian. The search of Ms. May's e-mails and other electronic files SHALL BE LIMITED TO August 2007 through 2008 using the following search terms: Bevard, Piscataway, LandSource / “Land Source” / Land-Source, Acacia, Starwood, “Morgan Stanley”, land /2 bank!/ landbank!/ land-bank!/ “off book” / “offbook” / off-book, and offload / off-load / “off load”.
All outside transactional/non-litigation counsel: Counsel for iStar sought records from these unidentified individuals. “Lennar has represented that it has produced documents from Steve Engel and Matthew Wineman, the primary transaction attorney for the Bevard project, but Lennar has not indicated if it collected, searched, and reviewed documents from any other pre-litigation counsel. Indeed, judging from Lennar's privilege log of August 19, 2011, specifically, Exhibit A thereto, Lennar appears to have engaged multiple transaction counsel pre-litigation – from Mr. Wineman's firm and otherwise. If Lennar did not collect, search for, and produce non-privileged documents from these searches, it must do so now.” Letter from Rosans, Esq. to Rouleau, Esq. of 5/4/12 at 3. Mr. Rouleau responded in his letter. “Lennar has already produced all documents from Matt Wineman, Esq. – Lennar's primary transactional attorney and drafter of documents such as the Purchase Agreement, the amendments, and the Consent & Estoppel – as well as Steve Engel, Esq., another outside consultant who worked on Bevard. Any other counsel had, at most, limited exposure to the Bevard project, their documents are privileged, and those documents that are not privileged would be duplicative of materials already produced in discovery. (See, e.g., Emails sent to B. Bilzin, outside counsel, copying R. Beckwitt, R. Jacoby, R. Kunkle, E. Haddad and other custodians previously produced in discovery [ush_00398069; ush-00039056].)” Letter from Rouleau, Esq. to Rosans, Esq. of 5/18/12 at 6-7. In his letter of June 21, 2012 Mr. Rosans did not address the topic of all outside transactional/non-litigation counsel as new custodians. Mr. Rouleau noted this omission in his letter of July 2, 2012. “We note that your most recent letter does not address your initial position that Matt Wineman, Esq. and Lennar's other transactional attorneys needed to be searched, and accordingly we assume you are no longer pursuing these additional custodians.” Letter from Rouleau, Esq. to Rosans, Esq. of 7/2/12 at 7 n.8. The Court finds iStar has withdrawn the request as to all outside transactional/non-litigation counsel and thus FINDS AS MOOT iStar's request to name these individuals as new custodians;
6. That, having resolved the issue of the newly identified custodians, the Court now turns its attention to the proposed and counter-proposed search terms;
7. That the Court has reviewed iStar's proposed search terms, as amended, in Mr. Rosans' letter of June 21, 2012 and Mr. Rouleau's reply letter of July 2, 2012. The Court is concerned about the breadth of some of iStar's proposed search terms. The Court therefore modifies these search terms as follows:
a. Terms regarding a “text amendment”: the Court approves the search terms “text amendment,” Marilyn! and Bland for the period of March 2006 to October 2007;
*8 b. Terms regarding land banking: the Court approves the search terms LandSource / “Land Source” / Land-Source, “off book”/ offbook / off-book and offload /off-load / “off load” for the period of 2006 to 2008 and these search terms must be run in conjunction with Bevard or Piscataway. The Court approves the search terms Acacia, Starwood and “Morgan Stanley” for the period of August 2007 to 2008;
c. Terms regarding environmental matters: the Court approves the search terms “Recognized Environmental Condition,” sewage /3 lagoon, spray /3 field, “waste water” / waste-water / wastewater, (sand or gravel) /3 (mine! or mining)and remediat! for the period of 2004 to 2007 and these search terms must be run in conjunction with Maryland or the individual names of other Maryland deals (such as “Fairway Village”, “Heritage Ridge”, “Longboat Estates”, and “Tanyard Cove”);
8. That it is the Court's understanding that the parties have reached an agreement with regard to some terms. This Order does not address those matters already resolved by the parties;
9. That if there are other search terms in dispute not addressed by this Order and not resolved by agreement of the parties, the Court directs counsel to so notify the Court in the weekly status report; and
10. That Lennar must provide the Court (and opposing counsel) an estimate regarding how quickly the approved (and agreed upon) search terms can be run against both previously designated custodians and the custodians approved by the Court in this Order. The Court directs Lennar to provide this information by Friday, November 2, 2012in its weekly status report.
Footnotes
The Court is aware that iStar identified additional custodians in its Response and Lennar, in its Reply, outlined why these custodians would lack responsive documents. This Order does not address the naming of these additional custodians and Lennar's objections. The parties are hereby given permission to formalize the naming of these newly identified custodians and the objections to these newly identified custodians.