2015-03-04 Letter From OGS Re Sanctions

STATE OF NEW YORK

OFFICE OF THE ATTORNEY GENERAL

ERIC T. SCHNEIDERMAN DIVISION OF STATE COUNSEL ATTORNEY GENERAL LITIGATION BUREAU

Writer Direct: (518) 776-2613 March 4, 2015 Hon. Randolph F. Treece United States Magistrate Judge United States District Court Northern District of New York James T. Foley U.S. Courthouse 445 Broadway - Room 312 Albany, NY 12207 Re: Wandering Dago v. NYS OGS, et al.

Northern District of New York 13-CV-1053 (MAD)(RFT)

Dear Judge Treece: Please accept this correspondence on behalf of Defendants RoAnn M. Destito, Joseph J. Rabito, William F. Bruso, Jr., and Aaron Walters, and non-party witness Bennett Liebman, in response to plaintiffs correspondence of February 20, 2015 [Dkt # 141], pursuant to the Courts Text Order of February 23, 2015 [Dkt # 142]. By the instant letter motion, Plaintiff seeks sanctions for the alleged spoliation of emails by non-party witness Bennett Liebman. Ironically, Liebmans involvement in this matter is limited to an email exchange with now dismissed NYRA Defendant Christopher Kay, and relates solely to claims which have already been settled. Plaintiff has failed to point to any evidence in the record which indicates that Liebman, or any individual outside the New York State Office of General Services (OGS), had any involvement in the decision to deny Plaintiff a permit to participate in OGSs Summer Lunch Program in 2013 or 2014. Nor has plaintiff offered any proof that non-party witness Liebman intentionally destroyed any documents related to this case.

THE CAPITOL, ALBANY, NY 12224-0341 (518) 474-4441 FAX (518) 473-1572 * NOT FOR SERVICE OF PAPERS WWW.AG.NY.GOV

Case 1:13-cv-01053-MAD-RFT Document 143 Filed 03/04/15 Page 1 of 5

March 4, 2015 Page 2

Procedural History By letter dated November 6, 2014, Plaintiff sought imposition of a spoliation charge against Defendants RoAnn M. Destito, Joseph J. Rabito, William F. Bruso, Jr., and Aaron Walters (the Individual OGS Defendants) based upon its allegation that non-party witness Liebman had intentionally destroyed documents related to this matter. [Dkt # 114]. The Individual OGS Defendants and Liebman responded to Plaintiffs letter request by correspondence dated November 10, 2014 [Dkt # 120]. A discovery hearing was held on November 19, 2014, before this Court, addressing a number of discovery issues including Plaintiffs allegation of spoliation. On November 20, 2014, the Court issued a Discovery Order ruling upon a number of issues. [Dkt # 125]. At that time, this Court declined to address the adverse inference request, noting that such a request should be presented to the District Judge who will preside over the trial. [Dkt # 125, p. 5.] This Court did, however, make the following observation:

Liebman, the New York State Gaming Commission, and even OGS are not defendants in this action. It appears futile to seek an adverse inference charge against the individual Defendants when they have no ability nor province to control or dictate Liebmans and the New York State Gaming Commissions management of its documents and electronically stored information. Compounding this observation is the predominate proposition that the Gaming Commission and OGS are separate and distinct governmental agencies, responsible for their own discovery production. (citations omitted.)

[Dkt # 125, p 5.] By correspondence dated January 15, 2015, Plaintiff advised the Individual OGS Defendants that it had reached a settlement with the NYRA Defendants. (A copy of Plaintiffs January 15, 2015 correspondence is attached hereto as Exhibit A.) Plaintiff further advised that Plaintiff has elected to drop its claim for damages against the OGS Defendants. Plaintiff continues to pursue its claim for declaratory and injunctive relief as well as attorneys fees and costs. (Exhibit A.) Depositions were conducted between January 13, 2015 and February 13, 2015. Discovery closed on February 20, 2015. [Dkt # 125.] By the instant letter-motion, Plaintiff now seeks sanctions for the unintentional loss of Liebmans emails through a 90-day automatic email deletion policy. However, it is unclear from Mr. Carpinellos letter against whom sanctions are being sought, or the nature of the sanctions requested. [Dkt # 141.]

Sanctions against Liebman are not appropriate. A party seeking to impose sanctions upon a spoliation theory must prove (1) that the party having control over the evidence had an obligation to preserve it at the time it was destroyed; (2) that the records were destroyed with a culpable state of mind; and (3) that the destroyed evidence was relevant to the partys claim or defense such that a reasonable trier of


March 4, 2015 Page 3 fact could find that it would support that claim or defense. Byrnie v. Town of Cromwell, 243 F. 3d 93, 107-12 (2d Cir. 2001). Here, Plaintiff has not established any of the three prongs of the test for spoliation. First, Liebman is not a party and had no obligation to maintain the emails at issue at the time that they were lost. Although Liebman may have thought that he might be called to testify in this matter, he had no independent obligation to maintain records regarding a matter. As Liebman explained during his deposition, his emails related to Wandering Dago were from July of 2013. (See portions of Mr. Liebmans Deposition Testimony attached hereto as Exhibit B, p. 29.) Liebmans obligation to produce and maintain records in connection with this suit only arose when he was served with Plaintiffs subpoena in July of 2014. (A copy of the subpoena is attached hereto as Exhibit C.) Therefore, Liebman was under no obligation to maintain emails, or any other documents, related to Wandering Dago, at the time that they were lost pursuant to the 90-day automatic email deletion in October 2013. Second, Liebman did not destroy documents, let alone do so with a culpable state of mind. At the time of Liebmans employment with the Executive Chamber, the Chamber had a policy in place whereby emails were automatically deleted after 90 days. A copy of the Executive Chambers automatic email deletion policy was provided to Plaintiff pursuant to the Courts November 20, 2014 Discovery Order, and is attached to Plaintiffs instant letter motion as Exhibit A. [Dkt # 141-1, page 2.] (Exhibit B, page 52-53, 66, 67-68.) Mr. Liebman did not intend to delete the emails, it happened automatically, without his taking any action. (Exhibit B, p 54-55.) In fact, Plaintiff no longer claims that Liebmans emails were intentionally destroyed but that they were lost through the 90 day automatic deletion policy. [Dkt # 141.] Third, and perhaps most significantly, Plaintiff has not and cannot establish that the lost emails are relevant to the remaining claims in this action. Plaintiff had the opportunity to depose Liebman. At that time, Liebman testified that the only emails he ever had regarding Wandering Dago were from July 2013. There was an email exchange (3 emails) between Liebman and Christopher Kay of NYRA from July 2013, and an email that he sent to his superiors in July of 2014 advising that he alerted Chris Kay of NYRA to the offensive nature of the food trucks name. (Exhibit B, p. 22-23, 29, 55.) This same information was relayed in the Weekly Reports prepared by Liebman which were provided to Plaintiff in response to the subpoena. (See Weekly Reports for July 2013 attached hereto as Exhibit D.) Liebman testified that he did not receive a response to the email to his supervisors. Plaintiff is in possession of all but one of the emails which Liebman originally had in his possession. All of the emails, including the one that was lost, relate solely to Liebmans interaction with NYRA. As the NYRA Defendants are no longer parties to this action and Plaintiff has settled all claims related to the removal of Wandering Dago from Saratoga Racetrack, these documents have no relevance to the claims remaining in this action. Likewise, there is no evidence that Liebman was in anyway involved in the decision by OGS, or any of the Individual OGS Defendants, to deny Plaintiff a permit to participate in the OGS Summer Lunch Program in 2013 or 2014. Plaintiffs reliance upon an email chain from July 22, 2013, portions of which were sent to both Liebman and OGS Public Information Officer Heather Groll, is insufficient to support such a claim. (A copy of this email chain is attached to Plaintiffs letter motion as Exhibit D.) [Dkt # 141-4.] Plaintiff had the opportunity to depose


March 4, 2015 Page 4 both Liebman and Groll with regard to this email chain. The email was initiated by Lee Park, Public Information Officer for the Gaming Commission, and sent to Liebman; Robert Williams, an attorney in the Executive Chamber; and Peter Brancato and Leo Rosalis, of the Governors Press Office. [Dkt # 141-4.] (Exhibit B, p. 35-36.) Liebman responded to the email providing some information about Plaintiffs name. (Exhibit B, p. 37-38.) Rosalis then responded to the email chain and added the following individuals as recipients: Heather Groll, Public Information Officer for OGS; Edison Albun, Department of State; Melissa DeRosa, Director of the Governors Press Office; and Matthew Wing and Richard Azzopardi of the Governors Press Office. (Exhibit B, p. 38-41.) Later that day, Groll responded to the email chain and provided OGSs response to the press inquiry. [Dkt # 141-4, pp. 2-3.] This email chain was sent in reaction to media coverage and press inquiries after Plaintiff complained publicly about being removed from the racetrack. Heather Groll was included in the email exchange because Plaintiff was also complaining about being denied a permit for the Summer Lunch Program sponsored by OGS. (See portions of Grolls deposition testimony attached hereto as Exhibit E, p 11-14; Exhibit B, p. 39.) This email chain does not indicate that Liebman, or anyone else outside of OGS, participated in the decision to deny Plaintiff a permit for the Summer Lunch Program. In fact, Liebman testified that he has never met or spoken with Groll, and did not know who she was until advised by counsel the day before his deposition. (Exhibit B. p. 38-39.) Liebman has no knowledge of anyone in the Executive Chamber participating in that Decision. (Exhibit B, p 39-40. ) Heather Groll testified that she does not know Liebman, nor what position he held. (Exhibit E, p 12, 19-20.) The mere fact that Liebman and Groll were both included in an email exchange regarding Plaintiffs public statements about its removal from the racetrack and the denial of its application for a permit for the Summer Lunch Program does not create any nexus between Liebman and OGSs denial of Plaintiffs application for a permit to participate in the Summer Lunch Program.

Sanctions are not appropriate against the Individual OGS Defendants. The Individual OGS Defendants did not destroy any evidence, and thus, any sanction

against them for failing to preserve any documents over which they had no control would be improper. A party cannot be sanctioned for a non-partys intentional or unintentional destruction of evidence, especially where the party had no control over the non-party and no control over evidence belonging to the non-party. See Alfieri v. Guild Times Pension Plan, 446 F. Supp. 2d 99, 112 (E.D.N.Y. 2006) (citing Residential Funding Corp. v. DeGeorge Financial, 306 F.3d 99, 107 (2d Cir. 2002); Byrnie v. Town of Cromwell, 243 F.3d 93, 107-12 (2d Cir. 2001)). In Alfieri, a non-partys response to the plaintiffs subpoena stated that the evidence sought was destroyed in the normal course of business. Id. The plaintiff accused the defendant of spoliation, and sought an adverse inference instruction. Id. In denying the plaintiffs motion, the court held that a party seeking an adverse inference or similar advantage based on the destruction of evidence must establish that the party having control over the evidence had an obligation to preserve it at the time it was destroyed. Id. Accordingly, the court denied the request because the defendant did not have any control over the spoliated evidence and did not have any duty to preserve the spoliated evidence. Id. See also Grant v. Salius, 2011 U.S. Dist. LEXIS 133248, at *8-9 (D. Conn. Nov. 18, 2011) (In light of the Second Circuits focus in applying spoliation sanctions on parties with a duty to preserve evidence and a role in the destruction of that evidence, . . . spoliation sanctions . . . are unwarranted where the party against whom sanctions are sought has


March 4, 2015 Page 5 not been shown to have had any responsibilities related to the maintenance, preservation, or destruction of the evidence, and the loss of that evidence is instead attributable to non-parties.).

Here, the Individual OGS Defendants did not have any control over Mr. Liebman or his email, nor did the Individual OGS Defendants have any duty to preserve Mr. Liebmans email. The email at issue has no connection to the Individual OGS Defendants. The loss of Liebmans emails cannot be attributed to the Individual OGS Defendants, and thus, the Plaintiff is not entitled to sanctions against the Individual OGS Defendants. They cannot be sanctioned for the actions of a non-party over which they had no control and for the destruction of evidence that they had no duty to preserve.

Additional Discovery Requested

Plaintiffs request for additional discovery regarding the lost Liebman email should be

denied. As explained above, there is no indication in the record that any Liebman email ever existed that would have any bearing on the remaining claims against the Individual OGS Defendants. The extensive discovery in this matter has failed to uncover any indication that any individual outside OGS had any involvement in the decision to deny Plaintiff a permit to participate in the Summer Lunch Program. Additionally, Plaintiff has been aware of the inadvertent loss of Liebmans email through the automatic deletion policy since early November 2014, and could have issued subpoenas to additional individuals or entities during the course of discovery, but chose not to do so.

Thank you for your consideration of this matter.

Respectfully yours,

s/ Colleen D. Galligan Colleen D. Galligan Assistant Attorney General Bar Roll No. 105167 [email protected]

Enclosure cc: George F. Carpinello, Esq.

Michael Hawrylchak, Esq. Boies, Schiller Law Firm 30 South Pearl Street, 11th Floor Albany, NY 12207


Case 1:13-cv-01053-MAD-RFT Document 143-1 Filed 03/04/15 Page 1 of 1

July 19, 2013

BL 000001


5. Wandering Dago Food Truck. NYRA on opening day had allowed a food truck

called the Wandering Dago as an authorized vendor at the track. I advised NYRA

President Chris Kay of the offensive nature of the name; as did a number of

NYRA customers. NYRA removed the vendor who is now complaining to the

media about NYRAs actions.

BL 000003


July 26, 2013

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4. Wandering Dago Food Truck. NYRA on opening day had allowed a food truck

called the Wandering Dago as an authorized vendor at the track. I advised NYRA

President Chris Kay of the offensive nature of the name; as did a number of

NYRA customers. NYRA removed the vendor who is now complaining to the

media about NYRAs actions. Reaction to the removal has been mixed, but a

New York Times article highlighted the offensive nature of the term. The Times

has also filed a FOIL request for any communication between the Chamber and

NYRA on this issue.

2

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3

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2015-03-04 Letter From OGS Re Sanctions