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

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

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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

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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

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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

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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
colleen.galligan@ag.ny.gov

Enclosure
cc:

George F. Carpinello, Esq.

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

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July 19, 2013

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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.

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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.

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