Exhibit A

M.Washington
From:
Michael Barnett < mbarnett@loeb.com > Friday, September 27, 2013 5:38 PM FRCHoldContact Michael Zweig RE: Electronic Discovery | Please Provide Info on 1998-1999 WMA Backup Tapes Searched in Rowe

Sent
To: Cc: Subject:

Mr. Washington, Please be advised that w e are stiii in the process of consulting with our client as to what electronic data in the form of emaiis still exists from 1998-1999. W e will advise you and the Arbitrator of our findings in accordance with the deadlines that the Arbitrator has set. Sincerely, Michael F r o m : M.Washington [mailto:humanriqhts.areamust(ia)Qmail.com] S e n t : Friday, September 27, 2013 3:05 PM

To: Michael Barnett; Michael Zweig Subject: RE: Electronic Discovery | Please Provide Info on 1998-1999 WMA Backup Tapes Searched in Rowe
No Michael Barnett, you are incorrect. Since you were not involved in this case when Arbitrator Gregory issued his second Interim Decision, I must remind you that he stated: "As to Exhibit [31 ] and any and all potentially forthcoming preferred evidence, I continue my A p r i l ] 8, 2013 .First Interim Decision Order in full force and effect. Each pa!ly has the continuing dut\ o f facilitating discover^'. Pursuant to New York law, discovery requests, and the statutory law against unlawful employment discrimination, shall be liberally construed." [pg. 13.] I n his third Interim Decision issued, after admitting "Exhibit 3 1 " "into the evidence o f record," he stated, " I ORDER that Respondent W M E cooperate with the e-discoveiy expert o f Claimant's choice to facilitate access to and be permitted to retrieve the emails contained on W M E ' s i 998-1999 back up tapes." [pg. 2.] He never asked for the Respondents to put together a discover}' protocol, although he did state that you could submit "a proposed protective order regarding any such emails that may be obtained by Claimant's expert." [pg. 2] I cannot obtain quotes from e-discoveiy companies until these preiiminaiy questions are answered. By refusing to have William Morris' IT department answer these very basic questions, you are preventing me .fi'om submitting by October 7, 2013 "an itemized list o f the projected reasonable costs associated with this retrieval" due to the fact that these e-discovery companies cannot provide me a quote until they have more information about William Morris' J 998-1999 back up tapes. I f these questions are not answered by the end o f the da;y, 1 w i l l have no choice but to address this issue with the Arbifrator on Monday. Best, Majxus

CONRDENTIALITY NOTICE: This e-mail transmission, and any documents, files or previous e-mail messages attached to it may contain confidential information that is legally privileged. If you are not the intended recipient, or a person responsible for delivering it to the intended recipient, you are hereby notified that any review, disclosure, copying, distribution or use of any of the information contained in or attached to this transmission is STRICTLY PROHIBITED. I f you have received this transmission in error, please immediately notify the sender. Please destroy the original transmission and its attachments without reading or saving in any manner. Thank you.

From: Michael Barnett [mallto: mbarnett(aioeb.coml Sent: Friday, September 27, 2013 1:41 PM To: FRCHoldContact Cc: Michael Zweig; Christian Carbone Subject: Re: Electronic Discover/ | Please Provide Info on 1998-1999 WMA Backup Tapes Searched in Rowe Dear Mr. Washington: Your e-mail to Michael Zweig (below) has been referred to me for a response. We are in the process of putting together a discovery protocol and protective order, per the Arbitrator's Third Interim Decision, and intend to follow the timeline set forth in his Decision. Thank you, Michael Barnett

From: M.Washington [mailto:humanriQhts.areamust(Q)amail.com1 Sent: Friday, September 27, 2013 1:05 PM To: Michael Zweig Subject: Re: Electronic Discovery | Please Provide Info on 1998-1999 WMA Backup Tapes Searched in Rowe
Michael, 1 just want to know jn advance i f you expect to submit the answers to the questions below to me by the end o f the day? Two months have elapsed since I initially e-mailed these questions and 1 have been more than patient with you, so i f not, 1 will have no choice but to bring this to the attention o f the Arbitrator and ask for discovery sanctions for your contumacious behavior. Best, Marcus

Exhibit B

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW Y O R K R O W E ENTERTAINMENT, INC., E T A L . , Plaintiffs, 98 Civ. 8272 (RPP)

-againstT H E W I L L I A M M O R R I S A G E N C Y , INC., E T A L . , Defendants.

M E M O R A N D U M O F L A W IN SUPPORT O F PLAINTIFFS' MOTION FOR AN O R D E R C O M P E L L I N G DEFENDANTS T O RESPOND T O P L A I N T I F F S ' D I S C O V E R Y R E O U E S T S . AND F O R A P R O T E C T I V E O R D E R

RUBINBAUM L L P

30 Rockefeller Plaza New Y o r k , N Y 10112 212-698-7700 Attorneys for Plaintifls

Plaintiffs respectfully submit this memorandum o f law in support o f their motion for an order: (1) Pursuant to Fed. R. C i v . P. 37(a) compelling the production o f documents and information responsive to Plaintiffs' First Request For Documents dated March . 19, 1999 (the "Document Requests") and Plaintiffs' First Set o f Interrogatories dated March 19, 1999 (the "Interrogatories") (Lepera Aff. Exhs. A and B , respectively); Pursuant to Fed. R. Civ. P. 26(c) granting plaintiffs a protective order (a) requiring defendants to serve a unitary and joint set o f discovery requests consistent with the guidelines set forth in Section 21 o f the Manual for Complex Litigation, and (b) limiting defendants to one examination o f each plaintiff at times mutually agreed upon and without priority over plaintiffs' right to conduct other depositions; and Pursuant to Fed. R. Civ. P. 37(b)(2) or 37(a)(4) awarding plaintiffs reasonable attorneys' fees and expenses incurred i n securing defendants' compliance with their discovery obligations and making the instant motion. Preliminary Statement Plaintiffs bring this motion because they were left with no other acceptable course o f action, al^er having negotiated in good faith with defense counsel for months over discovery matters.' It is now over one and a half years since the Document Requests and Interrogatories were initially served, four months after plaintiffs wrote to defendants' counsel demanding compliance w i t h these requests, and three months after this Court's August 2000 conference and scheduling order, dated September 15, 2000 (the "Order") requiring the completion o f defendants' document production by December 1, 2000, and plaintiffs still have received no documents responsive to

(2)

(3)

'The background and facts in support o f plaintiffs' motion are set forth in the accompanying affidavit o f Christine Lepera, sworn to November 22, 2000 (the "Lepera A f f " or "Lepera Affidavit"), to which this Court is respectfully referred..
22S9S4.3

their requests. To be sure, none o f the defendants has announced an outright refusal to cooperate with plaintiffs in discovery. Instead, defendants have attempted to convey a superficial veneer o f cooperation. Once defendants' positions are analyzed and the veneer is stripped, however, it is evident that defendants consistently have been unwilling to permit plaintiffs any meaningful inspection and/or copying o f voluminous, yet necessary, responsive documents. Defendants have not complied with this Court's November 1 order, and have thoroughly frustrated the scheduling order requiring complete production by December 1, 2000. See Lepera Aff. ^2; Scheduling Order, September 15,2000 (Lepera Aff. Exh. C). For months now, defendants have insisted, in unison, that plaintiffs must agree to terms o f a confidentiality order which, i f accepted, would undermine plaintiffs' ability to prosecute this antitrust and civil rights case, and have interposed baseless other objections to plaintiffs' requests. Although plaintiffs initially acceded to defendants' request for a confidentiality agreement, and proposed terms o f a confidentiality order (Lepera Aff. Exh. Q) consistent w i t h the guidelines set forth i n the Manual for Complex Litigation, the defendants rejected plaintiffs' proposal. In a combined effort, defendants insisted upon a proposed order containing vaguely-defined broad designations not only for "confidential" documents, but also for documents that are allegely "highly confidential," which the parties, including plaintiffs, would be precluded firom reviewing. See Lepera Aff. ^26; Exh. P. Plaintiffs objected to defendants' "highly confidential" designation as inappropriate and imnecessary, particularly as it appeared that important portions o f a substantial amount o f relevant documentation in this case would be withheld from plaintiffs, and plaintiffs' counsel would be prohibited from questioning any witnesses about such critical information, including at
nt9i*.i " 2 -

Exhibit C

U M I T E D STATES DISTRICT COURT SOUTHERN DISTRICT OF N E W Y O R K R O W E E N T E R T A I N M E N T , INC., et al., Plaintiffs, - against T H E W I L L I A M MORRIS A G E N C Y , INC., et al., Defendants. A F F I D A V I T OF CHARLES R. K E L L N E R 98 Civ. 8272 (RPP) (JCF)

S T A T E OF RHODE I S L A N D C O U N T Y OF BRISTOL

) ) )

SS.:

CHARLES R. K E L L N E R , being duly sworn, hereby,deposes and states: 1. 1 am employed as Eastern Region Vice President o f Electronic Evidence

Discovery, Inc. ("EED"), at 60 East 42nd Street, Suite 1812, New York, New York, 10165. EED has been retained by plaintiffs in this matter to advise regarding the discovery o f defendants' electronic evidence. 1 submit this affidavit to describe the discussions in which 1 participated with defendants' counsel and consultants in this case regarding defendants' production o f e-mail data, to respond to certain assertions o f their counsel and consultants, and to discuss the proposals EED made with respect to defendants' production of e-mail.

Background and Qualifications 2. EED has specialized for fifteen years in the field o f electronic discovery, and is

the oldest and largest organization to focus continuously and exclusively on the technology o f managing and producing electronic data in legal settings. EED was the first to develop techniques for searching and processing large volumes o f e-mail regardless o f the type o f software in which it was created. EED pioneered the online review of electronic files and e-mail in native file format (the format in which the data was created), and has assisted many litigants in managing the cost and burden o f electronic discovery. EED officers routinely serve as special

hearings before the special master, we leamed that the databases could be exported for our use using tools that already existed. The parlies then negotiated for an exchange of e-mail o f a limited number of people for a limited number o f years. Discovery o f electronic data was completed at the defendant's expense within a few months. 11. EED o f course is not alone in using the foregoing protocols to reduce costs.

Organizations such as Fios, Inc., and Applied Discovery (which defendants W i l l i a m Morris Agency, Inc. ( " W M A " ) and Creative Artists Agency L L C ( " C A A " ) have engaged) have noted the benefits of electronic production and searching. See Declaration o f Richard G. Primoff ("PrimoffDec.")131.

"Meet A n d Confer" Discussions w i t h Defendants in this Case 12. I n July 2001, EED was engaged by RubinBaum, plaintiffs' attorneys, to eissist

with electronic discovery issues in discussions with defendants C A A , W M A , SFX and Monterey Peninsula Artists ("Monterey"). Between July and early October o f this year, I had a number o f

discussions with Richard Primoff o f RubinBaum and various attorneys and consultants representing defendants. I have also read the correspondence and e-mail exchanged between plaintiffs' and defendants' counsel relating to this issue. 13. Despite the fact that we spent two months and engaged in many communications,

none o f the defendants demonstrated any willingness to make their e-mail data available lo plaintiffs in an elTicient and cost-effective manner. We made proposals that excluded examination o f large volumes o f e-mail and that would result in significant cost savings. Each time, we were met by inflated cost estimates based on unnecessary processing and on projects o f broader scope than plaintiffs proposed. None agreed even to the concept of using search terms.

Each premised their processing and review costs upon all o f the e-mail in question, rather than the small fraction that would result from searching. Despite all o f our offers to discuss limitation by names, date intervals, and search terms, no defendant ever offered or suggested a counterproposal. 14. It is important to note that the significant difference between defendants' cost

estimates and those prepared by EED are not indicative o f reasonable disagreements among experts who have attempted to come up with the most efficient plans for electronic discovery. Defendants, on the contrary, have included enormously expensive, unnecessary and disadvantageous steps to their proposals (including but not limited to their insistence on printing and/or converting to TIFF images every e-mail they retrieve) that serve no purpose but to give the appearance that production o f their e-mail w i l l be far more expensive than it need be. I concluded defendants were using their time primarily to bolster their position on this motion."*

SFX 15. SFX's counsel and IT manager, Mr. Kevin Crawford, advised during a mid-

August conference call that SFX, a conglomerate that had acquired different concert promotion companies over the past several years, had standardized its e-mail on a Microsoft Exchange

Server in December 1999. Before then, 1 was told, the acquired companies had used e-mail through internet service providers, and had no backups o f the e-mail. I was also told that SFX had failed to back up its network server until April 3, 2001.

1 do not discuss my communications with respect to defendant Monterey, because, as noted in the Declaration of Richard G. Primoff and in the Affidavit of Andrew S. Rosen, I referred that project to Andrew Rosen of ASR Data, whose company has more experience in the retrieval o f "live" e-mail from Macintosh computers than do 1. 1 have reviewed Mr. Rosen's affidavit, however, and fully agree with the conclusions and opinions stated in it.

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55.

Because the e-mail would be produced in electronic form, the incremental cost o f

a computer-assisted search for privileged (or responsive) documents is small. For these reasons, the problems envisioned by Mr. Rubel in cormection with privilege review are unfounded..

William Morris Agency E E D ' s Proposal 56. On August 2,1 learned from W M A technology personnel, primarily John Porter,

that for the 1994-1997 period, W M A had "a couple o f dozen" Macintosh Quickmail tapes made with Retrospect backup software. 1 leamed also that W M A had 208 daily and weekly sets o f backup tapes o f their Lotus Notes e-mails from about 1998 to that time. 57. With respect to the Quickmail tapes, I suggested that these be restored and

searched for responsive e-mail, since this collection o f tapes for this important period is small, and since the tapes themselves are relatively small in capacity, they probably hold a manageable
A

volume o f e-mail that can be restored economically. 1 still have no confirmation from W M A whether the tapes can be read by an outside vendor, whether they are corrupted, erased, overwritten, or i f the backup procedures for each o f them failed. We also do not know for what dates and for what W M A locations these tapes may contain e-mail, so that we can make a logical selection o f the tapes in order to save time and money.

* Mr. Porter replied then, and also stated in his affidavit, that the Retrospect software is no longer commercially available, and that the tapes may not be capable of restoration. Affidavit of John Porter ("Porter Aff.") ^13. On August 30, I learned from Andrew Rosen, plaintiffs' Macintosh expert, that Retrospect was commercially available and in fact capable of restoring tapes made with earlier versions of Retrospect. I confirmed on October 17 with Dantz Development Corporation, the makers of Retrospect backup software, that Retrospect 4.3 for Macintosh can be used to restore tapes made with the Macintosh-compatible Retrospect versions 2.0, 3.0, and 4.0, the versions most widely used between 1994 and 1997. Upgrades are available to licensed owners of older versions for less than the $500 cost to new purchasers.

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58.

Since learning from W M A that the Quickmail tapes may have been rendered

useless, EED focused on the later (and larger) collection o f Lotus Notes backup tapes. 59. EED proposed restoring just eight o f W M A ' s weekly backup sessions, out o f the

hundreds o f sessions W M A says it has in its possession. Thirty users' e-mails would be analyzed, based on the list o f "key personnel" provided.' We would select four from each year for 1998 and 1999. We would forego pursuing the Quickmail tapes until more could be leamed about them, and we would forego tapes o f other dates and other names, unless future discovery specifically indicated a need for more. 60. M y original understanding was that each set o f Lotus Notes backup tapes

consisted o f two tapes for W M A Beverly Hills and one for W M A New York. I projected iTiat thirty users' e-mail could be selectively restored from these tapes, and searched with agreedupon search terms to reduce the volume to about 10%. Thereafter, W M A could review that 10% for privilege and responsiveness and produce an estimated 2%. These percentages are within the range o f our experience at EED for negotiated, comprehensive work using search terms and postsearch review. I estimated the cost o f this project at about $41,500.' Alternatively, I suggested that Lotus Notes, the software owned by W M A , could be used to search, remove duplicates, ahd review and select e-mails for production, through W M A ' s in-house processing ~ a less expensive proposition." :

' Initially, plaintiffs focused on 27 individuals identified by WMA in its discovery responses, and later increased that to 56 to capture their assistants' e-mail. 1 used 30 as a round number, because plaintiffs were willing to attempt to reduce the list of "key personnel" in the hopes of reaching an accommodation, one that was not forthcoming. ' The increase in number of tapes per session described in WMA's papers could increase this estimate by about $3,000. Differences in tape fomiat or volume of e-mail per user will affect the estimate as well. " Prior to joining EED, I used this "low-tech" approach to produce responsive e-mails to the Federal Trade Commission on a short deadline in an antitrust investigation. The FTC staff negotiated and authorized the use of eight search terms. This number was significant to us in that Lotus Notes provided a -24-

61.

M y calculations were based on an assumption that each o f the thirty users would

have approximately 2,000 individual e-mail messages for each back-up session. I chose this number based on the representation of W M A ' s counsel that W M A ' s agents rarely used e-mail. W M A ' s counsel now indicates that each backup session would yield, for the 56 e-mail users in question, 158,441 e-mail messages. This calculates to 43 e-mails per day for each user. Elsewhere, M r . Porter estimates the total number o f e-mail messages for these 56 people to be 40,000. Porter A f f H 22. 62. Using the numbers stated by W M A ' s counsel as to volume, lack o f duplication

and number o f tapes per session, EED's proposal for the thirty users would be $87,000. Using those numbers but assuming a reasonable level o f duplication, EED's proposal for the thirty users would be $67,000. Using the lower volume estimated by M r . Porter, and similarly varying the degree o f duplication, EED's proposal for the thirty users would be $29,000 and $24,000, respectively.

W M A ' s Inflated Cost Estimates 63. M r . Porter's preposterous estimate o f $9,743,102 is based on the restoration and

production o f 175 backup sessions. Porter Aff. Tl 3. 1 have no idea why W M A included this figure, since plaintiffs' counsel made it clear that plaintiffs were willing to restore only eight sessions. 64. In any event, my experience and understanding o f this industry are that bids

would be substantially smaller, even for such a large project. EED has in fact performed several
/

way to key eight search terms into Lxjtus Notes, for re-use on multiple e-mail files. This operation was perfomied in an office workroom environment and not in a specialized electronic discovery production facility. I discussed with WMA's counsel the possibility of just using Lotus Notes for searching mails and tried to pass along details, but we did not get any commitment to proceed in this manner.

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$1 million and $2 million projects for processing more tapes with more e-mail than W M A ' s backups o f Lotus Notes e-mail files. This $9,743,102 estimate is based on an inflated and uimecessary processing plan.

W M A ' s Unnecessary Costs to Create T I F F Images 65. More than half o f W M A ' s own estimate o f $395,000 for the production o f eight

sessions is attributable to printing electronic files to TIFF images, solely for the purpose o f review. I refer to my discussion o f TIFFs, above, to demonstrate the absurdity o f including such an element in W M A ' s proposal, unless the object is to make it as expensive as possible. EED estimates that making a database and searching the data for potentially responsive e-mail would reduce the volume to 5 to 10% o f the total. I f W M A were prepared to agree to the use o f search

terms and to review and produce in electronic format, it could cut its own projected costs by half or more, even assuming it achieved no other savings. 66. Mr. Porter explains that Fios, W M A ' s consultant, would make a master database

to take duplicates out of the e-mail collection (Porter A f f ^21), and he describes additional processing costs for review. Porter A f f ^ 24. At least one o f these procedures w i l l create a database that can be used to search the e-mails for potentially responsive data. In fact, Fios refers to "extract[ing] the text for full text searching." Porter Aff. Exh. 1 at 4. As 1 stated in the paragraph above, the searches would reduce the volume o f e-mail to be reviewed to 5% to 10% of the overall volume. W M A could then review the remaining documents online. 67. Fios' proposal illuminates the inflated nature o f the estimates it puts forth and the

waste inherent in the system proposed by W M A for producing the e-mail. Contrary to the assertion o f W M A ' s counsel that Fios has stated that TIFFs are required, it appears that W M A has asked that this be done. Specifically, Fios states: "Please note that we w i l l charge $5.00 per

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M B for processing even though you may not direct us to convert the documents to H T M L or to post them onto our web apphcation, ' i o ' . " From this statement, I conclude that W M A has asked Fios not to use the efficient and cost-effective methods o f searching and on-line review services which are included in its charge o f $5.00 per M B ~ but rather to propose on the basis o f W M A ' s request that for the more expensive and less-used process o f creating TIFFs o f every document, then printing the TIFFs and also providing them on compact disc. 68. Instead, W M A ignored our proposal to use search terms, then assumed it would

not search to reduce the volume, then included costs to print every single e-mail and attachment to TIFF for delivery on CD, presumably for use in a review system it fails to identify. W M A then estimates that for each o f the 8 sessions, it w i l l pay 11 cents per page for 224,000 pages o f TIFF image files to review. Creation o f these 1,792,000 pages o f TIFFs will cost $197,120 for eight backup sessions represents, more than half o f W M A ' s costs for the entire project.

W M A ' s Unnecessary Costs to Restore Lotus Notes E-mail 69. Mr. Porter discusses the time and expense to restore e-mail from backup tapes.

He describes the problem as not knowing how to find the e-mail on the tape sets, or in finding out which tape in the set contains the e-mail files. Porter A f f 16-23. Mr. Porter states that

each tape in a set must be catalogued, even i f it is known that only one tape contains the e-mail. There are at least three options for restoring the Lotus Notes e-mail files that are less timeconsuming and less expensive than the procedures outlined by W M A . 70. To restore a single file, whether for 30 or 56 accounts, from backup tapes with

Arcserve Software (which is what W M A uses), it is important only to know the file names. Each Lotus Notes e-mail file for each user has an exclusive name, e.g., PORTERJ.NSF. The name does not change for any given employee, week to week, month to month, or year to year. The

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file appears in each bacicup set with an identical name. W M A presumably knows the name o f the file used consistently for each o f its employees and can selectively restore them without recataloging, as follows: (a) W M A can use its tape catalog database to selectively restore each o f the 30 or 56 users from the backup tapes, or it could give Fios a copy o f its tape catalogs to do the same. The common Arcserve feature that creates a database o f catalogs for each backup set is what allows information technology professionals to find and restore particular files, "to protect against possible loss o f or damage to its electronically stored data." Porter Aff. (b)

1 8.

I f W M A kept no database o f the catalogs, it is still likely that it can retrieve the catalogs. It is a standard infomnation technology practice to have backup software write catalog for each tape set onto the tape itself, and Arcserve probably did so here. The catalogs themselves can be restored and used to find the e-mail files, without the need lor extensive re-cataloging. I f W M A did not make or keep any o f the catalogs normally kept for purposes o f information retrieval, it has neglected standard operating procedures in network administration and backup, and it is attempting to charge plaintiffs for a burden that it created itself

(c)

Most simply, W M A or Fios could perform a "filtered" restoration o f the 30 or 56 users. W M A or Fios could put the file names for those user into the "Restore by Query" interface in Arcserve, and cycle through the tapes to restore every incidence o f each o f those 30 or 56 files for each o f the

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backup sets selected. The procedure obviates the need for expensive cataloging and double processing.

W M A ' s Heavy Use of E-mail 71. Finally, I understand that W M A ' s counsel has argued that W M A ' s agents rarely

used e-mail in 1998 or 1999. That is incorrect by W M A ' s own estimates. 72. According to W M A ' s counsel (McCallion A f f ^ 16), W M A counted 158,441

separate e-mails for the 56 users in question in a single backup session.'^ Fios estimated 224,000 pages o f e-mails for these 56 users in a single backup session. Porter A f f Exh. 1, pp. 4-6. 1 calculate that these figures yield an average o f 2,829 e-mails or 4,000 pages o f e-mails and attachments in each o f the mailboxes of these 56 users at any given time for each session. 73. I calculated these figures as follows. W M A says that there would "not be a great

number o f duplicates because Music Division users appear to delete used e-mails." Porter Aff. TI 25.'"' Mr. Porter's knowledge as to the amount o f duplication is apparently the result o f sampling and analysis o f actual tapes. Porter A f f ^ 17.'"* I f there is no duplication here as M r . Porter indicates, each o f these 56 people are sending or receiving over the course o f a quarter 43 e-mails or 66 pages o f e-mails per day. (We assume an even distribution o f e-mails over these 56 users, Elsev/here, Mr. Porter estimates 40,000 e-mails in a single backup among these 56 users. Porter A f f \ 22. I first became aware of the testing and statistics described by Ms. McCallion and Mr. Porter in reading their papers and have had no prior opportunity to inquire about this large discrepancy as to the number of e-mails estimated for a single weekly backup session. The term "used e-mails" is not a term used in the industry. If Mr. Porter is suggesting that the users delete e-mail after reviewing it, that would result in fewer e-mails overall, but not necessarily little duplication. Backup tapes for the same e-mail from week to week, month to month, and quarter to quarter will contain varying percentages of duplicates. EED uses sampling techniques to identify the degree to which backup tapes contain duplicates. The percent of duplicates tends to decrease as the interval expands, since e-mail users tend to continue to save the same important e-mails over time. WMA's volume estimates and the lack of duplicates on a quarterly basis indicates a high volume of e-mails being sent and received each day.

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and a divisor o f 5 work days per week, 21.75 work days per month, and 65.25 work days per quarter). A t least one o f these conclusions must be drawn: (a) (b) (c) Cost projections are inflated by overestimating the volume o f e-mail; Cost projections are inflated by not accounting for duplicates; or These 56 people in the W M A Music Division, even in this 1998-1999 period, are doing a tremendous volume o f communication each day by email. Conclusion 74. For the meet and confer period from July to October, plaintiffs presented C A A ,

SFX, and William Morris Agency many solid opportunities to negotiate a reasonable and useful production o f e-mail. These were based on well-accepted uses o f search terms, limitation o f scope by selection o f names, and limitation o f date range. Plaintiffs offered several suggestionsto help defendants develop useful information about their electronic archives, so that plaintiffs could make intelligent selections designed to meet their needs, and, at the same time, contain the cost and burden. Overall, EED's proposals to each o f these defendants would yield a cost at a small fraction o f defendants' estimates for production o f its e-mails. Defendants accepted none o f the suggestions as a premise for further negotiation.

Charles R. Kellner Sworn to before me this li, day o f October, 2001

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Exhibit D

M.Washington

From: Sent: To: Subject:

M.Washington <humanrights.areamust@gmail.com> Tuesday, November 27, 2012 10:42 AM mzweig@loeb.com; ccarbone@loeb.com Litigation Hold

Michael, After reading Judge Patterson's November 8, 2012 decision concerning .Leonard Rowe's FRCP 60 M o t i o n , it cannot be disputed that W i l l i a m M o r r i s and their counsel had and should still have in their possession the actual e-mails that were to accompany "Exhibit 3 1 " (the e-mail search summary results discovered in July 2002 which shows your client and executives from C A A referring to African Americans as "nigger," "nigga," "coon," "monkey," "Uncle T o m " and other racially derogatory terms hundreds of times) - although you and other officers involved in that case have been semi-successful in fraudulently concealing this "smoking gun evidence" from the Plaintiffs and the Court over the last decade. Y o u have been aware that I ' v e had "Exhibit 3 1 " in my possession for the last five months. Since I first presented this haunting evidence to the Second Circuit on June 6, 2012, you have chosen to remain silent and/or referred to a deceptively written judicial opinion produced through "fraud upon the Court" because this supports my contentions that this cabal has maintained its discriminatory and anticompetitive employment practices with malice and/or reckless indifference to the federally protected rights o f qualified African Americans and people o f color for more than a century to maintain its monopolistic control over H o l l y w o o d and the marketplace o f ideas. As evident by the N e w Y o r k ' s inexorable zero in positions o f Agent, Coordinator and Agent Trainee before I began w o r k i n g at the company on September 2, 2008, this further demonstrates that the company has intentionally frozen a w o r k culture embedded in racism. N o t only have you have also remained silent to this direct evidence, you also ignore the historical and statistical evidence demonstrating "pattern and practice" or systemic disparate treatment against African Americans and provides the context in which to fiilly understand my claims o f pre and post-hiring discrimination, failure to promote, retaliation, aiding and abetting and violation o f federal and state antitrust law. N o business justification or procompetitive reason is provided as well. This is not accidental. Y o u used this same strategy o f remaining silent when Leonard filed his FRCP 60 M o t i o n and although colluding w i t h judges and other unlawful tactics have worked extremely well for you in the past, those days are now numbered. When it's all said and done, the truth w i l l not be silenced. The newly discovered details from Patterson's order additionally support my previous allegations (and the claims first raised by \ Leonard Rowe) that you and your law firm are engaging in a "pattern" o f serious unethical and criminal conduct on behalf o f W i l l i a m Morris including conspiracy to interfere with civil rights, racketeering and fraud to name a few in a desperate attempt to prevent these two landmark civil and human rights cases from being heard and decided by an impartial jury. N o w that I ' v e had a few days to become knowledgeable about electronic discovery, I have serious concerns that spoliation o f evidence may have already occurred in my case as well. I n light o f these circumstances, I w i l l file a motion in the next two weeks requesting that these electronic documents (as w e l l as other documents intentionally withheld and relevant to the merits o f my case) be produced. I f not, no genuine issues w i l l exist i n this case and default judgment should be granted in my favor. I n the meantime, I am seeking a copy o f the document retention notice sent to W i l l i a m M o r r i s and the identities o f all employees that received this notice. I f the actual notice is not produced, I need to know the date the litigation hold came into effect and the names o f all employees that received this notice. Please be advised that additional information may be requested at a later date. Best, Marcus Washington

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