County shredding response

7/31/2019 County shredding response

1/22

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF NEW YORK

ANNE POPE, JANIS GONZALEZ, WANDA WILLINGHAM,

GERALDINE BELL, SAMUEL COLEMAN and LEE PINCKNEY,

Plaintiffs,

- against -

COUNTY OF ALBANY and the ALBANY COUNTY BOARD OF

ELECTIONS,

Defendants.

____________________

Civil Action #11-CV-736LEK/DRH

DEFENDANTS MEMORANDUM OF LAW IN

OPPOSITION TO PLAINTIFFS MOTION FOR DISCOVERY SANCTIONS

MURPHY, BURNS, BARBER & MURPHY, LLP

Attorneys for Defendant County of Albany226 Great Oaks Boulevard, Albany, New York, 12203

Telephone: 518-690-0096; Telefax: 518-690-0053

Of Counsel:

Peter G. Barber, Esq.

Catherine A. Barber, Esq.

THOMAS MARCELLE, ESQ.

Attorney for Defendant Board of Elections

Albany County Attorney, Department of Law112 State Street, Suite 1010, Albany, New York, 12207

Of Counsel:

Karry Culihan, Esq.

Adam Giangreco, Esq.


2/22

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES ........................................................................................................... i

PRELIMINARY STATEMENT ......................................................................................................1

STATEMENT OF FACTS ..............................................................................................................1

ARGUMENT ...................................................................................................................................4

POINT I ................................................................................................................................4

DEFENDANTS PRESERVED RELEVANT DOCUMENTS ................................4

POINT II

PLAINTIFFS FAILED TO PROVE CULPABLE CONDUCT ..............................7

A. Thomas Scarff, Secretary of Redistricting Commission ..............................8

B. Hon. Frank Commisso, Majority Leader ...................................................10

C. Eugenia Condon, Esq., Deputy County Attorney ......................................11

D. County Executives Office.........................................................................12

POINT III

DEFENDANTS ACTED IN GOOD FAITH .........................................................14

POINT IV

PLAINTIFFS PROPOSED RELIEF IS UNJUSTIFIED ......................................16

CONCLUSION ..............................................................................................................................18


3/22

TABLE OF AUTHORITIES

Page

Anderson v. Sothebys Inc. Severance Plan, 2005 WL 2583715 (S.D.N.Y.) ..................................9

Byrnie v. Town of Cromwell, Bd. Of Educ., 243 F.3d 93 (2nd

Cir. 2001) ....................................4

Essenter v. Cumberland Farms, Inc., 2011 WL 124505 (N.D.N.Y. 2011) ....................................15

Favors v. Fisher, 13 F.3d 1235 (8th

Cir. 1994) ...............................................................................16

Field Day, LLC v. County of Suffolk, 2010 WL 1286622 (E.D.N.Y.)............................................9

Hamilton v. Mount Sinai Hospital, 528 F.Supp.2d 431 (S.D.N.Y. 2007) .......................................8

Kronisch v. U.S., 150 F.3d 112 (2nd Cir. 1998) ...............................................................................4

Latimore v. Citibank Fed. Sav. Bank, 151 F.3d 712 (7th

Cir. 1998) ..............................................16

Marlow v. Chesterfield County School Board, 2010 WL 4393909 (E.D. Va. 2010) ......................9

Orbit One Communciations, Inc. v. Numerex Corp., 271 F.R.D. 429 (S.D.N.Y. 2010) .................7

Pension Plan v. Banc of America Securities, 685 F.Supp.2d 456 (S.D.N.Y. 2010) ........................8

Prestige Global Co. Ltd. v. L.A. Printex Industries, Inc., 2012 WL 1569792

(S.D.N.Y. 2012) ...............................................................................................................................4

Residential Funding Corp. v. DeGeorge Fin. Corp., 306 F.3d 99 (2nd

Cir. 2002) .................3, 8, 16

S.C. Johnson & Son, Inc. v. Louisville & Nashville R.R. Co., 695 F.2d 253 (7th

Cir.

1982) ................................................................................................................................................9

Steuben Foods, Inc. v. Country Gourmet Foods, LLC, 2011 WL 1549450 (W.D.N.Y.

2011) ..............................................................................................................................................15

Zubulake v. UBS Warburg, LLC, 220 F.R.D. 212 (S.D.N.Y. 2003) .............................................13

-i-


4/22

Statutes, etc.

Local Law C of 2011.............................................................................................................. passim

NYS Arts & Cultural Affairs Law .................................................................................................13

-ii-


5/22

1

PRELIMINARY STATEMENT

Proving nothing, other than a talent to drawing attention by using phrases like

knowingly destroyed, and destruction of material evidence, plaintiffs motion is a

disservice to this Court. It is similarly easy to paint a false image of defendants

discovery responses by mischaracterizing a handful of isolated events. But, when the

actual facts and proper law are applied, it is clear that plaintiffs never should have filed

this motion. The County discharged its legal obligations in preserving, maintaining, and

producing all material evidence relating to the redistricting of its legislature. Given its

reckless nature, plaintiffs motion should be summarily denied, with an award of

attorneys fees and expenses to defendants.

STATEMENT OF FACTS

In a Resolution dated January 10, 2011, the Albany County Legislature appointed

a seven member Redistricting Commission, with representatives from the Democratic

and Republican Parties, to redistrict the Legislature under the 2010 Federal census. See

Karlan Dec. Exh. 2. The Legislature apportioned funds for retaining John Merrill, as a

consultant on the redistricting process. See Karlan Dec. Exh. 6. Thomas Marcelle, Esq.,

counsel to the Republican minority, was retained as attorney to assist the Redistricting

Commission and the Legislature.

Thomas Scarff was appointed Secretary of the Redistricting Commission. Mr.

Scarff maintained a website which contained updated information on notices of meeting

times and locations, meeting minutes, Federal census numbers, maps, and general


6/22

2

information about redistricting. See Marcelle Aff. Exh. C (Scarff Tr. 61:12-18; 68:17-

69:2).

From February 24, 2011, through April 23, 2011, the Redistricting Commission

conducted seven public meetings throughout the County. See Karlan Dec. Exh. 12. At

many of the meetings, no persons provided public comment. See id. Mr. Scarff hand

wrote information about the meeting, including attendance by members and public

participation. Mr. Scarff used his reminder notes to prepare minutes that were placed on

the website. With that task complete, Mr. Scarff discarded his notes. See Marcelle Aff.

Exh. C (Scarff Tr. 67:17-68:16; 115:20-116:13).

On May 19, 2011, the Redistricting Commission conducted a public hearing on

the proposed redistricting plan. The public hearing was videotaped and transcribed. See

Barber Aff. 4.

On May 23, 2011, the Legislature held a public hearing on Local Law C of 2011,

the redistricting plan recommended by the Redistricting Commission. The public hearing

was videotaped and transcribed. At the conclusion of the public hearing, the Legislature

approved Local Law C of 2011. See Barber Aff. 4.

On May 31, 2011, the County Executive held a public hearing on his consideration

of Local Law C. This public hearing was transcribed. See Barber Aff. 5. The County

Executive had no role in the preparation of the redistricting map or the Legislatures

adoption of Local Law C. See Marcelle Aff. Exh. A (Perrin Tr. 31:15-21). The County

Executives office maintained a to-do list for the County Executives consideration of


7/22

3

Local Law C, including copies of documents. See Marcelle Aff. Exh. A (Perrin Tr.

157:22-158:10).

On June 6, 2011, the County Executive signed Local Law C. See Dkt. No. 1 at

17; Dkt. No. 100 at 20.

On June 29, 2011, plaintiffs commenced this action under Section 2 of the Voting

Rights Act contending that Local Law C diluted the vote of the minority community.

See Dkt. No. 1.

Pursuant to State statute and County policy, the County has preserved all records

relating to the redistricting process. As detailed in the accompanying affidavits,

defendants have timely preserved all available documents relating to the redistricting

process, and upon receipt of plaintiffs demands, have produced responsive documents.

In December 2011, the staff of the outgoing County Executive disposed of

documents no longer needed under the Countys retention policy. See Karlan Dec. Exh.

33; Marcelle Aff. Exh. A (Perrin Tr. 66:19-22, 83:23-84:2-10). The County Executives

Office received guidance from the Albany County Clerks Office on document retention,

and destroyed only appropriate documents. See Karlan Dec. Exh. 33; Marcelle Aff. Exh.

A (Perrin Tr. 67:19-22). None of the confidential documents were related to the 2011

redistricting process. See Marcelle Aff. Exh. A (Perrin Tr. 74:15-17).


8/22

4

ARGUMENT

In Residential Funding Corp. v. DeGeorge Fin. Corp., 306 F.3d 99,107 (2nd Cir.

2002), the Second Circuit imposed exacting standards on a partys efforts to impose

sanctions for an alleged failure to produce material evidence. The Court held:

(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 party's claim or defense such that a

reasonable trier of fact could find that it would support that claim or

defense.

Id. at 107. See Byrnie v. Town of Cromwell, Bd. of Educ., 243 F.3d 93 (2nd Cir. 2001).

As demonstrated below, plaintiffs motion fails to satisfy any requirement.

POINT I

DEFENDANTS PRESERVED RELEVANT DOCUMENTS

Plaintiffs open their flawed argument with the false premise that defendants failed

to preserve relevant documents. Relying upon straw man arguments regarding when the

obligation to preserve documents first arose1or whether or when a litigation hold was

instituted, plaintiffs argue that the County was derelict in its discovery obligations.

Plaintiffs conveniently ignore the fact that the County engaged in a good faith

1 Plaintiffs erroneously maintain that the mere prospect of litigation triggers the

preservation ofevidence. This obligation to preserve evidence arises when the party has

notice that the evidence is relevant to litigation-most commonly when suit has already

been filed . . . . Kronisch v. U.S., 150 F.3d 112, 126 (2nd Cir. 1998); see Prestige

Global Co. Ltd. v. L.A. Printex Industries, Inc., 2012 WL 1569792, 3 (S.D.N.Y. 2012).

Given the fact that the County preserved and produced all evidence regarding the 2011

redistricting process, plaintiffs arguments are of no moment.


9/22

5

preservation and production of documents pertaining to the 2011 redistricting process

from its inception.

As detailed in the accompanying affidavits, defendants conducted diligent

searches, and timely produced voluminous responsive documents, and have not

intentionally or improperly destroyed any documents relevant to this action. During the

short period between the commencement of this action and the August 3rd

preliminary

injunction hearing, defendants attorneys conferred with County department heads and

agency counsel and gathered all documents relating to the 2011 redistricting process. See

Barber Aff. 11. The Countys Department of Information and Technology was also

contacted regarding this effort. See Diegel Aff. 2.

In Defendants Response to Plaintiffs Request for Production of Documents,

dated July 29, 2011, defendants produced all available documents relating to the

Redistricting Commission, including minutes, hearing transcripts, and reports, all data

used by Mr. Merrill in preparing Local Law C, and two bound volumes of election results

provided by defendant Board of Elections. See Barber Aff. Exh. A.

After the conclusion of the hearing on plaintiffs motion for preliminary

injunction, on August 8, 2011, plaintiffs served 41 subpoenas duces tecum on each of the

39 members of the County Legislature, and other members of the Redistricting

Commission. See Karlan Dec. Exh. 25. Plaintiffs also served Plaintiffs Requests for

Production of Documents dated August 8, 2011, which were identical to its July 5, 2011

demand.


10/22

6

Even though these document demands and subpoenas duces tecum were not

authorized by this Courts Orders dated July 1, 2011 and July 22, 2011 regarding

disclosure, see Dkt. Nos. 4, 22, and also violated Rule 26(d)(1), defendants attorneys

contacted counsel for the majority and minority caucuses and requested that they obtain

responsive documents from legislators and Commission members. See Barber Aff. 17.

Defendants attorneys again contacted Mr. Scarff to confirm his production of all

documents considered by the Redistricting Commission. See id. 18.

Defendants counsel again notified certain County department heads that might

have responsive documents of the current status of the action and requested that they

search for and produce relevant documents in response to plaintiffs latest demands. See

Barber Aff. 19. In subsequent phone calls, defendants counsel discussed the status of

the production with certain department heads and their attorneys. See id. 19.

Over the ensuing months, defendants provided plaintiffs with thousands of pages

of documents, including multiple year Federal EEOC filings, and affirmative action

complaints, grievances, and civil rights actions dating back decades. See Barber Aff.

Exhs. B - I. Defendants also provided copious records regarding prior redistricting

actions and election results. See id. 13 & Exh. A. In addition, plaintiffs were allowed to

depose agency heads, legislative leaders, and County Executives. See Karlan Dec. Exh.

21 (Michael Breslin, former County Executive); Exh. 7 (Dan McCoy, current County

Executive); Exh. 11 (Michael Perrin, Deputy County Executive); Exh. 10 (Frank

Commisso, Majority Leader); Exh. 19 (Christine Benedict, Minority Leader); Exh. 18


11/22

7

(Robert Conway, Commissioner of Human Resources); Exhs. 28 & 29 (Paula Wilkerson,

Director of Affirmative Action); Exh. 9 (Thomas Scarff, Secretary of Redistricting

Commission). In sum, defendants discovery responses have been complete.

POINT II

PLAINTIFFS FAILED TO PROVE CULPABLE CONDUCT

Beyond failing to show that defendants failed to preserve material evidence,

plaintiffs also fail in their effort to prove culpable conduct. Indeed, plaintiffs assertions

of malfeasance by defendants rings hollow and is a disservice to the efforts made by

defendants, under an expedited schedule, to provide responsive documents. On prior

occasions, this Court hasproperly rebuffed plaintiffs misplaced attacks on defendants

discovery responses. See Dkt. Nos. 77, 89, 112.

Moreover, plaintiffs are simply unable to refute the conclusion that defendants

comprehensive document responses exceeded all applicable standards. Instead, plaintiffs

devote most of their brief to arguing that certain individuals failed to meet their discovery

duties. By isolating each persons action, plaintiffs improperly seek to project a distorted

picture of defendants efforts and recklessly attack the character of public officials. As

succinctly held in Orbit One Communications, Inc. v. Numerex Corp., 271 F.R.D. 429,

441 (S.D.N.Y. 2010), this type of complaint is unwarranted:

Because of the likelihood that some data will be lost in virtually any

case, there is a real danger that litigation [will] become a gotcha

game rather than a full and fair opportunity to air the merits of a

dispute. In order to avoid sanctions, parties would be obligated, at

best, to document any deletion of data whatsoever in order to prove

that it was not relevant or, at worst, to preserve everything.


12/22

8

citing Pension Plan v. Banc of America Secur., 685 F.Supp.2d 456, 468 (S.D.N.Y. 2010).

Far from satisfying the exacting requirement of culpable conduct required to

find fault with defendants discovery responses, see Residential Funding Corp. v.

DeGeorge Fin. Corp., 306 F.3d 99,107 (2nd

Cir. 2002), the record demonstrates the

opposite and shows that each person assailed by plaintiffs exercised good faith in

preserving and gathering information, and that the combined efforts of County officials

and their attorneys met legal standards.

A. Thomas Scarff, Secretary of Redistricting Commission.

Plaintiffs start their personal attacks by assailing Thomas Scarff, Secretary of the

Commission, for discarding his handwritten notes of public meetings. Mr. Scarff

recorded members attendance and summarized public comment, if any, with names if

provided. He discarded the notes after he used them to prepare minutes which he posted

on the Commissions website.

Mr. Scarffs actions were proper and do not, in the slightest, constitute culpable

conduct. For example, in Hamilton v. Mount Sinai Hospital, 528 F.Supp.2d 431, 444

(S.D.N.Y. 2007), the court held:

[I]t is hard to see how the notes were destroyed with a culpable state of

mind. The notes were merely the handwritten versions of notes that were

then put into typewritten form. In such circumstances, the party destroying

the notes would have no reason to think that he or she was destroying notes

that would ultimately be useful to any party in the future.


13/22

9

See S.C. Johnson & Son, Inc. v. Louisville & Nashville R.R. Co., 695 F.2d 253, 259 (7th

Cir.1982)(no bad faith shown where handwritten notes were typed in the form of a

memorandum prior to destruction).

Likewise, in Anderson v. Sothebys Inc. Severance Plan, 2005 WL 2583715 *4,5

(S.D.N.Y.), under substantially similar circumstances, the court held:

There is insufficient evidence here to establish that [defendant]

intentionally destroyed notes of the Committee meetings to prevent plaintiff

from obtaining them . . . . [Defendant] testified that she routinely destroyed

her handwritten meeting notes after she prepared a typewritten report . . .

plaintiff has failed to show relevance and is not entitled to an adverse

inference instruction.

Similarly, in Field Day, LLC v. County of Suffolk, 2010 WL 1286622 * 8

(E.D.N.Y.), the Court held:

With respect to Plaintiffs reliance on [the county employees] testimony

that he got rid of handwritten notes regarding the permit, the testimony isthat he threw out these handwritten reminder notes once he no longer

needed them to remind himself. The import of this testimony is that the

notes were thrown out shortly after they were made, most likely before theduty to preserve arose. Plaintiffs have not sustained their burden of

demonstrating that [the county employee] . . . failed to preserve his files

after the duty to preserve arose.

Even assuming there was a written litigation hold, Mr. Scarffs discarding of his

own reminder notes still would not support a finding of culpable conduct. Like Marlow

v. Chesterfield County School Board, 2010 WL 4393909 *3 (E.D.Va. 2010), the routine

destruction of handwritten notes that are summarized in typewritten meeting minutes is

no evidence that [employee] made a conscious decision to destroy the notes

because of [plaintiffs] forthcoming lawsuit. Thus, it would be

unreasonable to expect [employee] to consider the litigation hold when she

discarded her handwritten notes, and, accordingly, it cannot be said that she


14/22

10

had a culpable state of mind when she did so.

Indicative of the specious nature of their accusations, plaintiffs fault Mr. Scarff for

not recording the names of public attendees, even though they neither spoke nor asked to

be identified in the record. See Karlan Dec. Exh. 12 . Even assuming Mr. Scarff was

clairvoyant and could discern the identity of public attendees and their motive for

attending, nothing in the law would fault Mr. Scarff for not recording this information.

Moreover, public participation, let alone attendance, at the seven public meetings

was scant. See Karlan Dec. Exh. 12. Under NYS Public Officers Law 103, public

participation at public meetings is not required. See DeSantis v. City of Jamestown, 193

Misc.2d 197 (2002). In any event, at two of the public meetings (March 31, and April

14), there were no members of the public in attendance, and at two other public meetings

(February 24 and April 5), no public comment was provided. At two other public

meetings (March 24 and April 18), the attendance of members of the public were noted

but, unlike the last public meeting (April 23), no members of the public identified

themselves. Finally, plaintiffs failed to inform this Court that, on May 23, 2011, the

Redistricting Commission held a public hearing which was both transcribed and

videotaped. See Barber Aff. 4. In sum, plaintiffs efforts to prove culpable conduct in

Mr. Scarffs performance of his secretarial duties fall well short of the mark.

B. Hon. Frank Commisso, Majority Leader.

Finding no complaint regarding the other 38 County Legislators, plaintiffs

strangely focus on Frank Commisso, Majority Leader of the Legislature, and his alleged


15/22

11

improper discarding of handouts at Legislative meetings. See Pl. Mem. at 6. Mr.

Commisso testified that he did not use a computer and did not have an e-mail address.

See Marcelle Aff. Exh. B (Commisso Tr. 55:17-21). He only received copies of

documents handed out to all Legislators at meetings, and, with the conclusion of the vote

to approve Local Law C, he disposed of his copies. See Marcelle Aff. Exh. B (Commisso

Tr. 35:3-10; 50:3-5). The documents received by Legislators, including Mr. Commisso,

have been produced. See Marcelle Aff. Exh. B (Commisso Tr. 35:3-10; 50:3-5). Simply

stated, plaintiffs allegations against Mr. Commisso are frivolous.

C. Eugenia Condon, Esq., Deputy County Attorney.

Plaintiffs next seek to condemn Eugenia Condon, Esq., an Assistant County

Attorney, for not issuing a written litigation hold. See Pl. Mem. at 7, 18-19. Again,

plaintiffs arguments rest on a false premise. On June 29, 2011, the day of

commencement of this action, this Court held a conference during which the County

Attorneys office stated that it would have no involvement with this matter and that the

County would retain outside counsel. See Dkt. Minute Entry; Marcelle Aff. 4 & Exh.

D (Condon Tr. 35:9-23). Soon thereafter, Mr. Marcelle and Mr. Barber entered their

appearances on behalf of defendants.

Inasmuch as Ms. Condon did not represent defendants, she was not responsible for

any litigation steps or coordinating defendants document collection. To the contrary,

Ms. Condon was acting only upon behalf of the Department of Law. Like other agency

representatives, she was responding to requests by defendants attorneys to search for and


16/22

12

locate documents responsive to plaintiffs demands, including, with regard to the

Department of Law, litigation files for civil rights and employment actions. Ms. Condon

also assisted with the production of affirmative action complaints handled by the

Department of Human Resources. See Marcelle Aff. Exh. D (Condon Tr. 26:12-15;

30:6-31:20). In a very short time, Ms. Condon assisted defendants attorneys in the

production of litigation and administrative documents dating back to the 1980s. See

Marcelle Aff. 5. Far from the scurrilous accusations of culpable conduct, Ms.

Condons actions were exemplary.

D. County Executives Office.

Plaintiffs next contend that the County Executive engaged in a shredding party

or has a missing file in a flawed effort to suggest that the County Executives office

engaged in culpable conduct. Plaintiffs efforts are wrong because no material evidence

was destroyed.

Indicative of their flawed accusations, plaintiffs simply speculate that the

documents might be relevant, but choose to ignore the nature of the documents. For

example, plaintiffs contend that the County failed to produce e-mails and other

documents submitted by Aaron Mair relating to the redistricting process, including his

alternative districting plan. See Pl. Mem. at 11. Of course, the premise is false in light of

defendants voluminous production of materials submitted by Mr. Mair. Plaintiffs

argument is doubly dubious given the fact that Mr. Mair is one of plaintiffs own experts.

Plaintiffs also fail to note that the County provided a list of the documents


17/22

13

destroyed, and that every document on that list had no relation to the 2011 redistricting

action. These documents included confidential resumes (1994-2011), confidential

constituent issues (2005-2011), personnel records (1995-2003), correspondence (2000-

2005), and litigation copies (1998-2011). See Karlan Dec. Exh. 33. In particular, neither

litigation copies nor the missing file contained any original documents pertaining to the

current litigation or the 2011 redistricting process. See Marcelle Aff. Exh. A (Perrin Tr.

86:9-20; 121:6-122:10; 132:5-133:3).

Similarly, under NYS Arts & Cultural Affairs Law 57.25(1), the County

Executive was only obligated to retain and have custody of such records for so long as

the records are needed for the conduct of the business of the office For purposes of

this retention requirement, a record is defined as:

Any book, paper, map, photograph, or other information-recording device,

regardless of physical form or characteristic, that is made, produced,

executed, or received by any local government or officer thereof pursuant

to law or in connection with the transaction of public business. Record asused herein shall not be deemed to include library materials, extra copies

of documents created only for convenience of reference, and stocks of

publications.

See NYS Arts & Cultural Affairs Law 57.17(4) (emphasis added).

The County Executives office, which had no role in development of the

redistricting plan or the preparation of Local Law C, only would have possession of

copies of documents, not the originals. As such, any missing file, such as copies of Local

Law C and plaintiffs competing redistricting plan, were copies that were produced

elsewhere. In addition, the County Executive has already provided copies of such


18/22

14

documents in discovery. Simply put, a party is not required to retain and produce

multiple copies of the same document. Zubulake v. UBS Warburg, LLC, 220 F.R.D.

212, 218 (S.D.N.Y. 2003).

In sum, plaintiffs reliance upon unsubstantiated accusations is an ill-advised

insult against hard working County officials effort to provide documents, regardless of

their relevance. Plaintiffs arguments are a frivolous attempt to deflect attention from

material facts. Plaintiffs do not dispute that the County Executive held a public hearing

before signing Local Law C. Moreover, plaintiffs do not dispute that they were allowed

to depose the County Executive regarding his conducting of the public hearing and

consideration of Local Law C. See Karlan Dec. Exh. 20. As such, even assuming the

missing documents included information submitted to the County Executive, the fact

remains that the County Executive considered this information before exercising his

authority to sign the legislation despite opposition.

POINT III

DEFENDANTS ACTED IN GOOD FAITH

Unable to show culpable conduct, plaintiffs nonetheless incredibly assert that

defendants acted in bad faith or with gross negligence so that they are entitled to a

presumption that the missing documents would be adverse to defendants. See Pl.

Mem. at 17. Again, plaintiffs are wrong on the facts and law.

Like before, plaintiffs argument is first premised on the Countys alleged failure

to issue a written litigation hold. As demonstrated above, plaintiffs argument is a red


19/22

15

herring, given the Countys preservation and production of all documents relating to the

2011 redistricting process.

But even if a written litigation hold were relevant, plaintiffs are wrong in its

application. Not one Second Circuit case mentions the term litigation hold, let alone

requires it to be written. Steuben Foods, Inc. v. Country Gourmet Foods, LLC, 2011

WL 1549450, 5 (W.D.N.Y. 2011) (holding that a written litigation hold is not a ground to

presume or infer loss of relevant documents and holding that there is no Second Circuit

case holding that a litigation hold must be in writing). Similarly, plaintiffs misapply this

Courts holding in Essenter v. Cumberland Farms, Inc., 2011 WL 124505, 6-7

(N.D.N.Y., 2011), in which this Court found that spoliation of material evidence had

occurred and held that gross negligence could be found for failing to take the steps to

preserve the material evidence, including a litigation hold.

Here, of course, there was no spoliation of material evidence. Moreover, as

demonstrated above, this action was commenced within weeks of the enactment of Local

Law C and soon thereafter, defendants provided plaintiffs with all documentation

regarding the redistricting process.

Similarly, plaintiffs revisit the actions of the County Executives Offices

destruction of documents. Again, as detailed above, plaintiffs are unable to demonstrate

that these actions were unlawful or that the documents were even relevant. Plaintiffs

related attempt to characterize the new County Executive as having a cavalier attitude

with regard to the County document retention policy is utterly specious. To the contrary,


20/22

16

the County Executive properly stated that he was familiar with the law and was abiding

by it.

Plaintiffs again resort to attacking Mr. Scarff for destroying his notes and Mr.

Commisso for discarding copies of materials provided to all legislators. Plaintiffs

mistakenly contend that they are entitled to an adverse presumption against the County

because the discarding of these documents allegedly violated the Countys document

retention policy. But even if theses sweeping allegations were true, the cases cited by

plaintiffs support the conclusion that the actions under these circumstances would not

trigger the presumption. See Latimore v. Citibank Fed. Sav. Bank, 151 F.3d 712, 716 (7th

Cir. 1998)(the disappearance of Kernbauer's notes was inadvertent, and an inadvertent

failure to comply with the regulation is not a violation of it. So the presumption did not

attach); Favors v. Fisher, 13 F.3d 1235, 1239 (8th

Cir. 1994) (citations omitted)

(defendants testimony showed that he did not destroy the documents in anticipation of

litigation). Once again, plaintiffs misleading assertions aside, defendants acted in good

faith and plaintiffs are not entitled to any adverse inference.

POINT IV

PLAINTIFFSPROPOSEDRELIEFISUNJUSTIFIED

Having failed to meet any of the requirements necessary to impose sanctions on

defendants for alleged failure to produce material evidence, see Residential Funding

Corp., 306 F.3d at 107, plaintiffs proposed relief is wholly inappropriate and patently

unjustified. Under plaintiffs strained theory, even the innocent discarding of personal


21/22

17

reminder notes for preparing minutes, the recycling of extra copies of legislative

handouts, and the supervised removal of duplicate copies and irrelevant confidential

records would somehow warrant their unprecedented access to the Countys computer

server and the deposition of the County Comptroller. This argument is flawed for a

number of reasons.

First, as exhaustively established above, plaintiffs cannot demonstrate any

culpable conduct by defendants. Moreover, even with the expedited discovery schedule

for the preliminary injunction hearing, defendants production of documents pertaining to

the 2011 redistricting process was complete and thorough.

Second, from the outset of this litigation, the County Department of Information

Technology has assisted defendants counsel in the search for and production of relevant

documents responsive to plaintiffs demands. See Diegel Aff. s 2-4. Nothing in the law

or facts would justify plaintiffs intrusion into the Countys secured computer system.

Third, most of the claimed missing documents (handwritten minute notes and

legislative handouts) were hard copies that were never stored on the Countys computer

system. Similarly, the County Executive does not even recall receiving any e-mails

regarding the redistricting process. See Karlan Dec. Exh. 20 (Breslin Tr. 72) . As such,

access to the Countys server to search for these documents is unwarranted.

Fourth, the central issue in this action remains whether Local Law C of 2011 is

lawful under Section 2 of the Voting Rights Act. Plaintiffs scheme to gain access to

sensitive material is indicative of its continued improper foray into irrelevant inquiries


22/22

18

and should not be endorsed by this Court. Simply stated, plaintiffs motion for discovery

sanctions lacks both a factual foundation and legal basis.

CONCLUSION

For these reasons, defendants request an order denying plaintiffs motion for

discovery sanctions in its entirety.

Dated: June 12, 2012 MURPHY, BURNS, BARBER & MURPHY, LLP

By: Peter G. Barber, Esq.

Of Counsel: Attorneys for Defendant County of Albany

226 Great Oaks Boulevard

Catherine A. Barber, Esq. Albany, New York, 12203


ALBANY COUNY ATTORNEY

By: Thomas Marcelle, Esq.

Of Counsel: Attorneys for Defendant Board of Elections

Department of Law

Karry Culihan, Esq. 112 State Street, Suite 1010

Adam Giangreco, Esq. Albany, New York, 12207
