SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF ONONDAGA
`COMMERCIAL DIVISION
`
`PRELIMINARY
`CONFERENCE
`STIPULATION AND
`
`ORDER
`
`Commercial Division
`Index No.: 2016—EF—2494
`
`RJI N0.: 33—17—0510
`
`PRESIDING JUSTICE: HON. ANTHONY J. PARIS
`
`1“,."
`
`i OSI RESTAURANT PARTNERS, LLC, st 211., at a].
`5
`
`I’1aintiffs
`
`v.
`
`1m: LLC d/b/a/ FACILITY MAINTENANCE
`
`1 '
`
`Defendant
`
`{113 1034061}
`
`

`

`(1) Appearances:
`
`Counsel for Plaintiff(s):
`
`Client's Name: 081 Restaurant Partners, LLC (“081”), and its affiliates Outback Steakhouse of
`
`Florida, LLC (“Outback”), Carrabba’s Italian Grill, LLC, (“Carrabas”) Bonefish Grill, LLC
`
`(“Bonefish”) , Bone'fish Grill of Florida, LLC (“Bonefish FL”), and OutbacldFleming’s, LLC
`Lead Counsel‘s Name: John G, Powers
`
`Firm Name and Address: Hancock Estabrook LLP, 1500 AXA Tower I, 100 Madison Street,
`
`,Syl‘agusenNY 13202
`
`'l‘elephone Number: (315) 565—4547
`
`Facsimile Number: (3L5) 565_—4647
`
`Email Address: jpowers@hancocklaw.com
`
`Counsel for Defendant(s):
`
`Client‘s Name: lPT, LLC d/b/a Facility Maintenance (“FM”)
`
`Lead Counsel's Name: Donald E. Frechette
`
`
`Firm Name and Address: Locke Lord LLP 20 Church Street, 20th Floor, Hartford, CT 06107
`
`Telephone Number: 860—525—5065
`
`Facsimile Number: 860—527—4198
`
`ljmail Address: donaldfrechetteQDlockelord.com
`
`(2)
`
`Pertinent Dates:
`
`:1. Date of Commencement: June 22, 2016
`
`b. Date of .loinder: N/A
`
`c. Rll Date: February 13, 2017
`
`Ll)(
`
`)
`
`Nature of Case:
`
`Fluvial?! 10 22 NYCRR 202,12(c)(],), provide a brief descriplion qf'thefactual and legal issues
`
`raised in [/76 pleadings.
`
`a.
`
`The legal theories and salient facts supporting plaintiffs’ claims are:
`
`{lel31034061}
`
`2
`
`

`

`Plaintiffs plead claims for breach of contract and breach ofthe implied covenant of good faith and
`fair dealing. Plaintiffs contend that among Defendant’s contractual obligations was the
`responsibility to accurately assess sales tax on work performed by Defendant’s vendors on
`Plaintiff’s behalf and to only invoice Plaintiffs for sales tax amounts actually due and owing.
`Plaintiffs contend that Defendants breached this obligation causing monetary injury to Plaintiffs in
`an amount exceeding $2 Million plus statutory interest. Plaintiffs also seek recovery of their
`attorneys’ fees under applicable contractual fee shifting provisions.
`
`Relief Demanded: Compensatory damages in an amount to be determined at trial but not less than
`$2.1 million dollars; interest, costs and attorney’s fees
`
`’3 claims. lf issue has beenjoined, the legal theories and salient facts
`FM
`b. Defendant
`
`FM’s
`defenses, counterclaims and third—party claims are:
`supporting defendant
`
`
`
`
`Relief demanded:
`
`‘3 claims. If issue has beenjoined, the legal theories and salient facts
`‘5 defenses,
`
`
`Defendant
`c.
`supporting defendant
`counterclaims and third-party claims are
`
`
`
`
`
`Relief demanded:
`
`(4)
`
`Attorneys‘ Consultation:
`
`'l‘hc parties consulted in a good faith effort to reach agreement on the issues identified in
`Uniform Commercial Division Rule 8.* Agreement was reached as follows:
`
`
`
`AGREEMENT
`DATE OF
`‘
`ISSUE DISCUSSED
`CONSULTATION
`REACHED
`
`(Y or N)
`
`Resolution of the case
`6/15/16 to present
`N
`
`
`__ Fact discovery including methods, timing and
`scope
`
`
`6/12/17
`
`Y
`
`
`
`
`
`
`lifxpem disclosure including designation, timing
`and scope
`
`
`6/12/17
`
`Y
`
`The USS OfADI{
`10/24/16
`(already
`
`conducted)
`Voluntary and informal exchange of information
`ongoing
`Y
`
`
`Confidentiality and privilege
`
`6/12/17
`
`Y
`
`{1131034 61}
`
`3
`
`

`

`
`
`
`
`
`
`ongoingThe scope, extent, order and form of production Y
`
`
`
`The anticipated cost and burden of data recovery
`and proposed initial allocation of such costs
`
`6/12/17
`
`Each side to
`bear
`their
`own costs
`
`* Concerning electronic discovery, see Item (8)d below.
`COMMENTS:
`
`(5)
`
`Impleader: Do you anticipate the need to add parties? lf so, who and when? NQ
`
`Note: Impleader must be completed no later than 15 days after the end ofthe last party
`
`deposition.
`
`(6)
`
`Early Disposition:
`
`a. This case is appropriate for early disposition by:
`
`i.
`
`the accelerated adjudication procedures of the Commercial Division of
`N/A
`the Supreme Court as set forth in Uniform Commercial Division Rule 9
`
`ADR (identify type and timing) Mediation was conducted on
`N/A
`ii.
`November 28, 2016.
`
`iii.
`
`N/A limited issue discovery in aid of an early dispositive motion or
`
`settlement (identify type and timing)
`
`
`
`iii.
`
`N/A
`
`dispositive motion that will be filed on or before
`
`iv.
`
`N/A
`
`other (identify type and timing)
`
`_
`
`
`This case is not appropriate for early disposition because: The parties already have
`b.
`pagieipatcd in AAA i'i’iediatiori,
`
`
`
`Confidentialitv Order:
`
`The court recognizes that most cases in the Commercial Division involve highly sensitive
`information. In such cases, the parties may be directed to enter into a Confidentiality Agreement
`that the court will "So Order." The parties are encouraged to use the model confidentiality
`agreement found at: http://www.iiycbar.org/pdf/report/ModelConfidentialitypdf
`
`The parties HAVE or X HAVE NOT entered into a Confidentiality Agreement.
`
`The parties X WILL or WILL NOT enter into a Confidentiality Agreement.
`
`If so, then state when: ASAJZ. Ifnot, then state why not:
`
`{113 1<)3-10e1 }
`
`4
`
`

`

`(8)
`
`Disclosure [See generally 22 NYCRR 202.70(g)]:
`
`It is hereby STIPULATED and ORDERED that disclosure shall proceed as follows
`pursuant to the CPLR and the Uniform Commercial Division Rules:
`
`21.
`
`Insurance Coverage shall be furnished on or before: N/A
`
`b. Bill of Particulars:
`
`i.
`
`ii.
`
`Demand(s) for a bill of particulars shall be served on or before, if appropriate,
`September 1, 2017
`
`Response(s) to the demand(s) for a bill ofparticulars shall be served on or
`before: Response according to CPLR.
`
`0. Document Production:
`
`Initial demands for discovery and inspection shall be served on or before 14
`i.
`days from the date of service of Defendant’s Answer.
`
`ii.
`
`iii.
`
`Responses to the demands for discovery and inspection shall be served on or
`before: according to CPLR, or by agreement of the parties.
`
`The parties will provide a statement regarding the completeness of document
`production on or before: March 1, 2018
`
`iv.
`
`lt’documents are withheld are grounds of privilege, the parties agree to employ:
`
`a categorical privilege log
`
`
`a document by document privilege log (X) Note: Pursuant to
`Uniform Commercial Division Rule ] l—e, unless agreed to by the
`parties or otherwise authorized by the court: document production
`must be complete before the date setfor commencement of
`depositions; and no later than one month prior to the close offact
`discovery, each party must provide opposing counsel with a
`statement regarding the completeness of its documentproduction.
`
`COM M lEZN'l‘S: 1,,
`
`d. Electronic Discovery
`
`Will there be electronic discovery in the case?
`
`VYl'iS
`
`NO*
`
`X
`
`NOT SURE **
`
`{17131034061}
`
`’
`
`5
`
`

`

`*[fihere will be no ESI in [his case, then skip ahead to 8e.
`
`**If the parties are not sure whether Ihe case is reasonably likely to include ESI, then refer to
`Ihe non—exhaustive list of considerations provided in 22 NYCRR 202.12 (b) (1).
`
`i.
`
`Attorneys' Consultation
`
`The parties consulted in a good faith effort to reach agreement on the following ESI issues.
`Agreement was reached as follows:
`
`AGREEMENT
`
`DATE OF
`ISSUE DISCUSSED
`CONSULTATION
`REACHED
`
`(Y or N)
`
`Identification of potentially relevant
`types or categories ofESI and the
`
`relevant time frame
`4
`Disclosure oi" the applications and
`6/12/17
`Y
`
`manncljn which the ESI is maintained
`identification ol‘ potentially relevant
`sources of ESI and whether the ESI is
`
`6/12/17
`
`6/12/17
`
`Y
`
`Y
`
`
`
`
`
`
`
`
`
`reasonably accessible
`rImplementation of a preservation plan
`6/12/17
`1Y
`
`for potentially relevant ESI
`Identification ofthe individual(s)
`_
`responsible for preservation ofESI
`ISSUE DISCUSSED
`DATE OF
`AGREEMENT
`
`
`
`6/12/17
`
`Y
`
`
`‘
`(Y or N)
`
`CONSULTATION
`
`REACHED
`
`The scope, extent, order and form of
`6/ 12/17
`Y
`
`“production of ESI
`Identification, redaction, labeling and
`
`6/12/17
`
`Y
`
`logging of privileged or confidential
`ESI
`
`
`Claw—back or other provisions for
`6/12/17
`Y
`
`privileged or protected ESI
`The scope or method for searching
`i and reviewing ESI
`‘ The anticipated cost and burden of
`data recovery and proposed initial
`
`allocation of such costs
`L
`
`6/12/17
`
`6/12/17
`
`Y
`
`Y
`
`ii. Directives concerning electronic discovery:
`
`(A) Preservation: [Uniform Commercial Division Rule 8(b)(i)—(v)]: Separately for each party,
`
`indicate whether a preservation plan has been created, a custodian for each computer/server has
`
`been identified, and an individual responsible the preservation ofrelevant ESI has been
`
`{ii3103406i}
`
`6
`
`

`

`designated. Do not list the names of the custodians or the designated individuals; state only the
`
`fact that it has been done or is in the process of being done.
`
`Plaintiff
`
`Defendant
`
`Defendant
`
`
`Yes
`No
`In process
`
`Yes
`No
`In process
`Yes In process No
`
`
`
`
`
`(B) Production [22 NYCRR 202.70(g)(8)(vi) and (iX)]: Indicate whether the parties have
`
`agreed on the scope and method for searching and reviewing ESI (i.e. the relevant search terms
`
`or technology—assisted review), the extent, order and form of production, and a projected
`
`production schedule. Do not list the actual terms of the review butjust the fact that it has been
`
`done or is in the process of being done.
`
`Agreement has been reached:
`
`Yes
`
`No X In process
`
`(C) Privilege Logs and Redaetions [Uniform Commercial Division Rule 8(b)(vii):). lfthe
`
`parties intend to treat ES] differently than other production (see Item (8)0. above), state how the
`
`parties will provide for the identification, redaction, and logging of privileged or otherwise
`confidential ESI:
`
`ESI shall be identified and logged by file name and directory cross reference and shall be converted
`to .pdf if redaction is required. Claw—Back Provisions [Uniform Commercial Division Rule
`8(b)(viii)]: State how the parties intend to deal with inadvertent production: The parties will agree
`to a claw back provision as part of a Stipulated Confidentiality Agreement.
`
`(1)) Costs [Uniform Commercial Division Rule 8(b)(x)]: Unless agreed to by the parties
`
`or otherwise ordered by the conit, each party shall bear its own costs of production.
`
`iii.
`
`Judicial Intervention
`
`The parties anticipate the need forjudicial intervention regarding the following issues
`
`concerning the scope and methods of preserving and/or producing 1381: N/A
`
`iv.
`
`Additional Directives
`
`Set forth any additional directives or issues related to 1381: N/A
`
`e. lnterrogatories:
`
`Preliminary interrogatories shall be served on or before: 14 days from the date of
`i.
`service of Defendant’s Answer.
`
`ii.
`
`Claim/contention interrogatories shall be served on or before: October 15, 2017
`
`flote; P11787407” to Uni/arm Commercial Division Rule 1 [—62, unless agreed to by the parties or
`otherwise authorized by the court, interrogatories are limited to 25 in number, including subparts,
`and restricted to thefollowing topics: names ofwitnesses with
`
`{tours/tom}
`
`7
`
`

`

`knowledge ofinfozr‘mation material and necessary to the subject matter ofthe action, computation of
`each category of damage alleged, and the existence, custodian, location and general description of
`material and necessary document, including pertinent insurance agreements, and other physical
`evidence. At the conclusion of other discovery, and at least 30 days prior to the discovery cut—ofl date,
`interrogatories seeking the claims and contentions of the opposing party may be served unless the
`court has ordered otherwise.
`
`COMMENTS: ,
`
`
`
`ll.
`
`Depositions of Fact Witnesses
`
`i.
`
`ii.
`
`Depositions shall commence on or after fieptember l, 2017
`
`Choose (A) or (B) and (C):
`
`A.
`
`Deponent
`
`Date
`
`Place
`
`
`
`
`
`
`
`
`
`
`
`
`
`B.
`
`Depositions of all parties shall be completed on or before: July 1, 2018
`
`C.
`
`Depositions ofall non—party fact witnesses shall be completed on or
`before July l, 20] 8
`
`Note: Pursuant to Uniform Commercial Division Rule 1 l—d, unless agreed to by the parties or
`otherwise authorized by the court, the number of depositions taken by plaintiffls or by defendants, or
`by third~par1y defendants, shall be limited to l0 and depositions shall be limited to 7 hours per
`deponent. See Uniform Commercial Division Rule 1 l—flor special rules regarding depositions of
`entities including identification ofindividuals and subject matter.
`
`In the event
`COMMENTS: At present, the parties believe that such limitations will be sufficient.
`additional, depositions become necessary the parties shall confer in good faith regarding such
`additional discovery, and seek court involvement only 1f necessary.
`
`0‘0'
`
`Fact Discovery shall be completed on or before: July 1, 2018
`
`h. Expert Disclosure:
`
`{inimiosi}
`
`8
`
`

`

`
`Plaintiff(s) X MAY or
`
`WILL NOT introduce expert testimony at trial
`
`Defendant FM X MAY or
`testimony at trial
`
`WILL NOT introduce expert
`
`Defendant
`
`
`_
`
`MAY orWlLL NOT introduce
`
`The parties shall complete expert disclosure on or before: October 1, 2018
`
`ii.
`
`iii.
`
`iv.
`
`Note: Pursuant to Uniform Commercial Division Rule 13(c), if a party intends to introduce
`expert testimony at trial or in support ofa motionfor summary judgment, no later than 30 days
`prior to the completion offact discovery, the parties shall confer on a schedulefor expert
`disclosure ~- including the identification ofexperts, exchange of'reports, and depositions of
`tein/ying experts —- all ofwhich shall be completed no later than 4 months after the completion
`o/fact discover Unless agreed to by the parties or otherwise authorized by the court, expert
`disclosure must be accompanied by a written report, prepared and signed by the witness, if‘either
`(/1) the witness is retained or specially employed to provide expert testimony in the case, or (B)
`the witness is a party’s employee whose duties regularly involve giving expert testimony. The
`report must contain: (/1) a complete statement of'all opinions the witness will express and the
`basis and the reasonsfor them; (B) the data or other information considered by the witness in
`forming the opinion(s),' (D) any exhibits that will be used to summarize or support the opinion(s),'
`(1)) the witness’s qualifications, including a list ofall publications authored in the previous 10
`a list ofall other cases at which the witness testified as an expert at trial or by
`years; (E)
`during the previous/our years,“ and (F) a statement of the compensation to be paid to
`deposition
`the witness for the study and testimony in the case.
`
`Absent good cause, the court will preclude the use of expert disclosure not timely provided.
`
`COMMENTS:
`
`
`
`i.
`
`Other
`
`Disclosure:
`
`i.
`
`ii.
`
`iii.
`
`Names and addresses of all witnesses, statements and photographs shall be
`
`exchanged on or before: As requested in discovery
`
`Requests for admissions shall be served on or before: as needed
`Other (specify)
`
`COMMENTS:
`
`
`
`.1. Progress Reports:
`
`{113 ] 034001;
`
`

`

`i.
`
`ii.
`
`On March 1, 2018 the paities shall provide the court with a written report regarding the
`status of discovery specifically identifying what discovery has been completed and
`what discovery, if any, remains outstanding.
`
`/\ meeting place conference call is scheduled for March 8, 2018 at which times the
`parties shall report to the Court the status ofdiscovery. The court will provide counsel
`with call—in in formation one week prior to the conference call.
`
`(9) Motions — Generally:
`
`'l)laintil"f(s) anticipate making the following motions: Summary Judgment on liability and
`a.
`discrete issues of damages
`
`b.
`
`Defendant FM anticipates making the following motions: Summary Judgment
`
`e.
`
`Defendant
`
`anticipates making the following motions:
`
`
`filot‘c: Form of l’ap_‘rs
`
`_
`
`~
`
`—
`
`—
`
`The notice of motion or order to show cause shall include a statement
`
`ofthe precise relief sought
`All dispositive motions must include a copy of the pleadings
`Exhibit tabs are required
`
`— If a document to be annexed to an affidavit or affirmation is voluminous and only
`discrete portions are relevant to the motion, counsel shall attach only the pertinent
`excerpts and submit the full exhibit separately
`Memoranda of law shall not exceed 25 pages in length; reply memoranda of law
`shall not exceed 10 pages in length
`Sur—replies and post—argument submissions are not allowed without advance
`express permission of the Court.
`
`(10) Summarv Jud ‘ment and Other Disnositive Motions:
`
`a.
`
`b.
`
`Unless otherwise authorized by the court, all dispositive motions shall be made no later
`
`than the 30th day after filing of the trial note of issue.
`
`P
`'ud 'ment, other than a motion for summar
`U on an motion for summar
`5
`/
`lieu ofa com alaint; there shall be a se )arat‘e, short and concise statement
`
`.
`
`'ud nnent in
`in numbered
`
`paragraphs, of the material facts as to which the moving party contends there is no
`genuine issue to be tried.
`
`{1131034061}
`
`10
`
`

`

`Papers opposing a motion for summaryjudgment shall include correspondingly
`numbered paragraphs responding to each numbered paragraph in the statement of the
`moving party and, if necessary, additional numbered paragraphs containing a separate
`short and concise statement of the material facts as to which that party contends there
`
`exists a genuine issue to be tried.
`
`Each numbered paragraph in the statement ofmaterial facts required ofthe moving
`party will be deemed admitted for purposes of the motion unless specifically
`controverted by a correspondingly numbered paragraph in the statement required of
`
`the opposing party.
`
`Each statement of material fact by the movant or opponent, including each statement
`controverting any statement of material fact, must be followed by citation to evidence
`submitted in support of or in opposition to the motion.
`
`(in
`
`Settlement Conference will be held on no earlier than October 1, 2018 (to be set by the Court).
`
`(12)
`
`l\' otc:
`
`’1
`J
`
`)
`
`(
`
`l
`
`Trial Note of Issue: Plaintiff shall file a note of issue/certificate ofreadiness on or
`before October 1, 2018
`
`Trial note of issue must befiled within 12 months ofthe date oflhe RRfiZingfor a
`
`Standard case or wit/71771 J 5 months off‘he RRfiZingfor a complex case.
`
`Trial:
`
`21‘
`
`Plaintifl'ts) anticipates the trial ofthis action will take 3—4 days
`
`Dcfendant(s) anticipates the trial ofthis action will take
`
`days
`
`A final pretrial conference will be held on November 12, 2018 (to be set by Court)
`
`The trial of this action will commence on November 26, 2018
`
`Note:
`
`All pre—trial filings and submissions required by Uniform Commercial Division Rules
`27, 28, 29, 3] and 32 (including motions in Iimine, indexed exhibit binder, witness list,
`
`identification of deposition testimony (with transcripts), pre—trial memorandum,
`requests to charge (with reference to PJI numbers or specific case citations) andjury verdict
`sheet) shall be filed and exchanged with opposing counsel at least 5 days before the final pre-
`trial conference.
`
`Failure to comply with any of these deadlines, rules or directives may result in the imposition of
`costs or sanctions or other action authorized by law.
`
`{Mitosioai}
`
`ll
`
`

`

`ey for Plai
`
`f1'(s)
`
`E.<þúe*
`
`Attomey for Defenclant(s)
`
`Attorney for Defendant(s)
`
`l)¡\'f'l':D:
`
`/t
`
`7
`
`SO OI{l)EttllD: I
`
`l-lon. Anthorry .1. Paris, JSC
`
`{ n3 r 03406. r }
`
`12
`
`