I BOIES, SCHILLER & FLEXNER LLP 30 SOUTH PEARL STREET • ALBANY . NY 12207 • PH : 518 . 434 . 0600 • FX : 518 . 434 . 0665 VIAECF Hon. Randolph F. Treece Magistrate Judge James T. Foley U.S. Courthouse 445 Broadway, Room 314 Albany, NY 12207 March 9, 2015 Re: Wandering Dago Inc. v. New York State Office of General Services, et al. Civil Action No. 1:13-cv-01053 I MAD-RFT Dear Judge Treece: We write in response to Defendants' letter dated March 4, 2015 concerning Defendants' spoliation of evidence. Plaintiff Does Not Seek Sanctions Against Mr. Liebman As an initial matter, we want to make clear that we do not seek sanctions against Bennett Liebman, but rather we seek sanctions against Defendants because of the conduct of their counsel, the Office of the Attorney General, in failing to preserve documents that were clearly relevant to this litigation and which were still available to be preserved after this action was brought and after Mr. Liebman's involvement was raised in open court. Indeed, even the Executive Chamber has publicly acknowledged that it knew about Liebman's involvement at the time the suit was brought, which was well within the automatic 90-day destruction deadline. We request that the Court grant relief in the form of additional discovery and monetary sanctions as described more fully below. Obligation to Preserve Documents In their letter, Defendants argue, remarkably, in light of Bennett Liebman' s deposition testimony, that no spoliation of evidence has occurred. Defendants first argue, without any supporting citation, that Liebman "had no independent obligation to maintain records regarding a matter," and that Liebman's "obligation to produce and maintain records in connection with this suit only arose when he was served with Plaintiffs subpoena in July of 2014." (Dkt #143, at 3.) This position has no support in the case law and misconstrues Plaintiffs position. The obligation to preserve documents "usually arises when a 'party has notice that the evidence is relevant to litigation ... but also on occasion in other circumstances, as for example when a party should have known that the evidence may be relevant to future litigation.'" Byrnie v. Town of WWW.BSFLLP.COM Case 1:13-cv-01053-MAD-RFT Document 146 Filed 03/09/15 Page 1 of 6
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I
BOIES, SCHILLER & FLEXNER LLP
30 SOUTH PEARL STREET • ALBANY . NY 12207 • PH : 518 .434 .0600 • FX : 518 .434 .0665
VIAECF Hon. Randolph F. Treece Magistrate Judge James T. Foley U.S. Courthouse 445 Broadway, Room 314 Albany, NY 12207
March 9, 2015
Re: Wandering Dago Inc. v. New York State Office of General Services, et al. Civil Action No. 1:13-cv-01053 I MAD-RFT
Dear Judge Treece:
We write in response to Defendants' letter dated March 4, 2015 concerning Defendants' spoliation of evidence.
Plaintiff Does Not Seek Sanctions Against Mr. Liebman
As an initial matter, we want to make clear that we do not seek sanctions against Bennett Liebman, but rather we seek sanctions against Defendants because of the conduct of their counsel, the Office of the Attorney General, in failing to preserve documents that were clearly relevant to this litigation and which were still available to be preserved after this action was brought and after Mr. Liebman's involvement was raised in open court. Indeed, even the Executive Chamber has publicly acknowledged that it knew about Liebman's involvement at the time the suit was brought, which was well within the automatic 90-day destruction deadline. We request that the Court grant relief in the form of additional discovery and monetary sanctions as described more fully below.
Obligation to Preserve Documents
In their letter, Defendants argue, remarkably, in light of Bennett Liebman' s deposition testimony, that no spoliation of evidence has occurred. Defendants first argue, without any supporting citation, that Liebman "had no independent obligation to maintain records regarding a matter," and that Liebman' s "obligation to produce and maintain records in connection with this suit only arose when he was served with Plaintiffs subpoena in July of 2014." (Dkt #143 , at 3.) This position has no support in the case law and misconstrues Plaintiffs position. The obligation to preserve documents "usually arises when a 'party has notice that the evidence is relevant to litigation ... but also on occasion in other circumstances, as for example when a party should have known that the evidence may be relevant to future litigation.'" Byrnie v. Town of
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Cromwell, 243 F.3d 93 , 107 (2d Cir 2001) (quoting Kronisch v. United States, 150 F.3d 112, 126 (2d Cir.1998)).
Defendants' counsel had reason to believe Mr. Liebman's documents were relevant to this litigation long before he was served with a subpoena. As early as the September 19, 2013 oral argument on Plaintiffs preliminary injunction motion, Liebman' s involvement in the removal of Wandering Dago from Saratoga Race Course was a matter of public knowledge. That was 60 days after Liebman intervened with NYRA to urge removal of Plaintiff from the Saratoga Race Course. Defendants can hardly claim ignorance of the relevance of Liebman's emails to the litigation when one of them had already been introduced in court as an exhibit. Weeks earlier, in a report to the Governor's office dated August 30, 2013, only days after this action was filed, Liebman wrote in reference to this action, "I may end up being a witness in the suit." (Ex. A, Portfolio Weekly Report, dated Aug. 30, 2013 , at 3.) Earlier yet, the very email sent by Liebman on July 22, 2013, to "a number of the people in the executive chamber," that is believed to have been permanently destroyed, was presumably prompted by the concern that this incident might result in litigation. (Ex. B, Deposition Transcript of Bennett Liebman ("Liebman Tr."), dated, Feb. 6, 2015, at 23:9-23:15.) Indeed, Defendants' counsel previously sought to avoid producing a weekly report dated July 19, 2013- the very day Wandering Dago was told to vacate Saratoga Race Course - on the grounds that it was "prepared in anticipation of litigation." (Ex. C, Response to Subpoena, dated Oct. 31 , 2014, at 2.) 1
Culpable State of Mind
Defendants next argue that because Liebman did not intentionally destroy documents, we cannot show the necessary culpable state of mind. Again, Defendants misconstrue Plaintiffs position and the applicable law. First, counsel knew that Liebman's documents had become critical and took absolutely no steps to preserve them.
Second, spoliation is not limited to active destruction, but extends also to failure to act. "[O]nce a party reasonably anticipates litigation, it must suspend its routine document retention/destruction policy and put in place a 'litigation hold' to ensure the preservation of relevant documents. When the failure to meet these obligations results in the destruction of evidence, sanctions are warranted. And, though the nature of the sanction depends in part on the state of mind of the destroyer, some remedy may be appropriate even where the destruction is merely negligent." Chan v. Triple 8 Palace, Inc. , 2005 WL 1925579, at *6 (S.D.N.Y. Aug. 11 ,
1 Thus, public statements to the effect that the Executive Chamber was unaware of Liebman' s involvement until suit was brought appear to be incorrect. A representative of the Governor' s Office stated to the press that the Executive Chamber "did not put a hold on the Liebman communication with Kay because it did not know about the exchange until the Wandering Dago litigation was filed." Former Cuomo Aide Criticizes Deletion of2013 Emails, New York Law Journal (March 4, 2005, at 2). Even if this statement were correct, it is clear that the Executive Chamber was on notice of the need to preserve the relevant documents on August 27, 2013, well within the 90 days before the relevant documents were destroyed. Thus, even employees of the Executive Chamber were aware of their duty to preserve and failed to do so.
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2005) (internal quotation marks and citation omitted). Neither the Executive Chamber nor the Attorney General ' s Office took any steps whatsoever to prevent the document' s destruction. (See Ex. B, Liebman Tr. , at 72:17-72:20, 54:2-54:19.) There can be no question that this is, at the very least, negligence.
Relevance to Plaintiff's Claims
Defendants argue that the deleted emails are not relevant to the remaining claims in this action. Throughout this litigation, Defendants have sought to frame the treatment of Wandering Dago by State officials as a series of isolated decisions about specific programs or locations. Wandering Dago has argued that it is in reality a coordinated campaign by certain high-level State officials to effectively bar Wandering Dago from operating on any State property. But the very evidence Wandering Dago needs to prove this theory - communications about Wandering Dago between high-level State officials- has been made unavailable by the failure to preserve relevant emails.
Defendants now insist that we know the contents of everything that was destroyed. With all due respect, we 've heard this story before. Defendants' counsel previously represented to this Court that Plaintiff was in possession of the only relevant email exchange that had been destroyed. (Dkt #120, at 3.) We now know definitively that this representation was false . We therefore reiterate our previous position, which has been vindicated by subsequent discovery: we see no reason to assume that the few emails that we are fortuitously aware of are the only emails about Wandering Dago that Liebman ever sent or received.
Defendants now rely on Liebman' s own deposition testimony as evidence that the deleted emails would not be relevant to Plaintiffs claims. Respectfully, if a spoliator could defeat an adverse inference simply by insisting that the destroyed evidence would not have proved useful, spoliation would lack any effective remedy. Plaintiff is entitled to test that claim with the documentary evidence. But more importantly, what we do not yet know is whether there were any other emails (not sent by Liebman) in the Executive Chamber that related to Wandering Dago that were also destroyed because of the failure to take active steps to preserve them. We know of the existence of the Liebman emails only because those emails were sent to parties outside of the Executive Chamber.
Sanctions Against Defendants
Defendants argue that they cannot be sanctioned for the destruction of documents because any spoliation by Bennett Liebman cannot be attributed to them. Again, Defendants misconstrue both Plaintiffs position and the law.
Both Defendants and the Executive Chamber are represented by the Attorney General, as is New York State generally. The Office of the Attorney General serves as a legal representative to State officials and agencies, including the Executive Chamber. See N.Y. Exec. Law§ 63[1]
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(Attorney General "shall ... defend all actions ... in which the state is interested."). Even though the Office of the Attorney General had not made a formal appearance in this case on behalf of Liebman or the Executive Chamber until after Plaintiff issued its subpoena, there is no question that the Office of the Attorney General had the ability and authority, as a practical and legal matter, to advise the Executive Chamber of the need to retain documents relevant to this litigation.2 See Gross v. Lunduski, 2014 WL 7883604, at *5-6 (W.D.N.Y. Dec. 18, 2014) (finding party had control of documents due to the Attorney General's practical ability to obtain documents from a non-party State agency). It did not do so, despite having actual knowledge of the relevance of Liebman's documents.
Moreover, when this action was filed on August 27, 2013, the State of New York was a defendant and was represented in this litigation by the Attorney General. Although the State of New York was subsequently dismissed from the action, it remained a party to the action until January 15, 2014, long after Liebman's relevance to the case had become apparent.3
A party may be held accountable for the failure of his or her counsel to preserve documents. "The preservation obligation runs first to counsel, who has a duty to advise his client of the type of information potentially relevant to the lawsuit and of the necessity of preventing its destruction." Chan, 2005 WL 1925579, at *6. Conduct by a party's attorney, including spoliation of evidence, is attributable to the party itself. See Victor Stanley, Inc. v. Creative Pipe, Inc., 269 F.R.D. 497, 515 n.23 (D. Md. 2010) ("Insofar as Plaintiff alleges spoliation by the attorneys who represented Defendants earlier in this litigation, Defendants' previous attorneys acted as Defendants' agents. Therefore, any such spoliation is attributable to Defendants. Thus, agency law is directly applicable to a spoliation motion, and the level of culpability of the agent can be imputed to the master." (citations omitted)).
The Attorney General, however, made no effort to ensure the preservation of Liebman's emails. The failure to issue a litigation hold is one factor "in the determination of whether
2 Indeed, this dynamic was visible in this very case when the Office of the Attorney General intervened to cause non-party OGS employees to reverse course in barring Plaintiff from an event at the Empire State Plaza Convention Center.
3 In its previous order of November 20, 2014 (Dkt. # 125, at 5), this Court noted that its decision in New York v. National Railroad Passenger Corp., 233 F.R.D. 259 (N.D.N.Y. 2006) may be of some relevance to the issue here. Based on the facts, as we now know them, Plaintiff does not believe that this Court' s decision in that action is controlling. In that action, the question was whether the plaintiff (Department of Transportation) could force the Office of State Comptroller to tum over documents. This Court explained that the Comptroller's Office was independent from the executive branch. Here, of course, Liebman, as an employee in the Executive Chamber, and the OGS Defendants all are or were employees of the Executive Branch. More importantly, that case raised the question of whether one agency could force another agency to tum over documents. That is not the issue in this case. In this case, the sole question is whether the Attorney General, counsel to both the Executive Chamber and the OGS Defendants, should have taken steps to preserve documents within the custody and control of the Executive Chamber. Clearly, the Attorney General had that obligation and took no steps to exercise that obligation. Nothing in Defendants ' letter addresses the ability and the responsibility of the Attorney General to ensure the Executive Chamber does not destroy documents .
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discovery sanctions should issue." Chin v. Port Authority, 685 F.3d 135, 162 (2d Cir. 2012); see also Chan, 2005 WL 1925579, at *7 ("[T]he utter failure to establish any form of litigation hold at the outset of litigation is grossly negligent."). Here, where Defendants' counsel were placed on notice of the importance of Liebman's email by its introduction into evidence at oral argument, the failure to take any steps to ensure its preservation is particularly egregious.
Nature of Sanctions
Although the Court has a great degree of discretion in crafting appropriate sanctions in light of the particular facts and circumstances of the case, we believe the following sanctions would be appropriate:
First, Plaintiff should be permitted to conduct additional discovery aimed at uncovering the full scope of the document destruction, including whether Liebman's or other Executive Chamber deleted emails might yet be recovered from some other source. This might include subpoenas directed to those believed to have received emails concerning Wandering Dago and the deposition of information technology personnel from the Executive Chamber concerning whether Liebman' s deleted emails may yet be recovered from any source.
Defendants' argument that Plaintiff should not be permitted additional discovery because "it could have issued subpoenas to additional individuals or entities during the course of discovery" is brazen, especially in light of their earlier representations that no additional emails existed. It is worth pointing out that the Attorney General's Office accepted service of Plaintiff's subpoena on July 7, 2014, and represented during a July 23, 2014 meet and confer call that Liebman' s documents would be produced within two weeks. It was not until October 31, 2014 that the Office responded to the subpoena. Liebman produced no documents and, in reference to Liebman's emails, stated only that "Bennett Liebman is not in possession of any such documents," without further explanation. Plaintiff was thereafter forced to make a motion simply to learn the terms of the document retention policy to which Liebman' s emails were subject. That policy was not produced until December 5, 2014. Any delay in seeking more information about destruction of documents is directly attributable to Defendants' own counsel.
In a November 20, 2014 Order, the Court directed the parties to "further address this matter during Liebman' s deposition. Possibly after that discovery, the parties may be able to better frame this issue." (Dkt #125, at 6.) Plaintiff did exactly that, learning only during that deposition of the existence of an email to persons in the Executive Chamber that was subsequently destroyed, and of the complete failure by counsel to take any steps to preserve documents. Defendants should not now be heard to complain when Plaintiff does exactly what this Court instructed.
Second, Plaintiff should be granted monetary sanctions to compensate for the time and expense involved in litigating Liebman's spoliation of evidence, including attorneys' fees and costs for the additional discovery requested above. See Zubulake v. UBS Warburg LLC, 220
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F.R.D. 212, 222 (S.D.N.Y. 2003) ("UBS must bear Zubulake's costs for re-deposing certain witnesses for the limited purpose of inquiring into issues raised by the destruction of evidence and any newly discovered e-mails.").
Finally, we believe that the most appropriate sanction would be an adverse inference that the destroyed documents would have demonstrated the involvement of officials in the Executive Chamber in a concerted effort to exclude Wandering Dago from State property. We recognize, however, that Your Honor has previously indicated that any adverse inference should be presented to the District Judge who "should have the sole prerogative when determining whether an adverse inference is appropriate under these circumstances." (Dkt #125, at 5.) We therefore reserve our right to make such a motion to JudgeD' Agostino at an appropriate time.
We look forward to the Court's resolution of this issue.
Respectfully submitted,
George F. Carpinello
cc via ECF: All counsel of record
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Exhibit A
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Exhibit B
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Page 1
UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK
NEW YORK STATE OFFICE OF GENERALSERVICES, ROANN M. DESTITO, JOSEPHJ. RABITO, WILLIAM F. BRUSO, JR.,AARON WALTERS, NEW YORK RACINGASSOCIATION, INC., CHRISTOPHER K.KAY, STEPHEN TRAVERS, JOHN DOES 1-5and THE STATE OF NEW YORK,
matter, held at the law offices of Boies, Schiller &
Flexner, LLP, 30 South Pearl Street, Albany, New
York, before Katherine D. Nichols, Registered
Professional Reporter and Notary Public, on February
6, 2015 at 9:35 a.m.
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7 (Pages 22 to 25)7 (Pages 22 to 25)
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1 (Bennett Liebman)2 A. No.3 Q. So you went back to your office later4 that afternoon?5 A. Yes.6 Q. And did you take any action with respect7 to Wandering Dago or have any communication with8 anyone that day?9 A. I sent an email to Chris Kay.
10 MR. CARPINELLO: Let's have this marked.11 (Plaintiff's Exhibit 91 was marked for12 identification)13 BY MR. CARPINELLO:14 Q. Mr. Liebman, you have in front of you15 what has been marked Exhibit 91, which appears to16 be an email chain on July 19th, 2013. Do you17 recognize these as emails that you sent?18 A. (Reviewing document) Yes. I think that19 -- okay, this has two emails through me. The top20 one seems totally accurate. I'm -- I know I sent21 basically the second one. I'm just not sure if22 that's exactly what I said.23 Q. Well, would you have any reason to24 believe that it was altered in any way?25 A. I don't know. I just don't know.
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1 (Bennett Liebman)2 Q. Now, why did you send this email to Mr.3 Kay?4 A. I sent this email to Mr. Kay to see if5 there was some way of working out the situation6 where NYRA would not get beaten up in the New York7 City tabloids for having a concession there whose8 name could be considered anti-Italian.9 Q. Did you discuss this email or your
10 communication with Mr. Kay to anyone in the11 executive chamber at any time?12 A. Not that day. On the next Monday, when13 news broke of that, I sent a note saying that I14 had sent this memo to a number of the people in15 the executive chamber.16 Q. You sent a note to a number of people in17 the executive chamber?18 A. Yeah. That I was the person probably19 referred to as -- that I was the person referred20 to as the high state official who had advised NYRA21 of the Wandering Dago.22 Q. Now, who did you send the note to?23 A. As best as I can -- I know I sent it to24 Howard Glaser. I'm sure I would have sent it to25 Linda Lacewell, who's a special counsel to the
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1 (Bennett Liebman)2 Governor, and I sent it to a number of people in3 the Governor's press office.4 Q. Did you send it to the Governor?5 A. No.6 Q. Going back to Exhibit 91. After you sent7 the first email at 2:58 p.m., did you receive any8 response from Mr. Kay?9 A. Yes. And one was, Thanks, let me check
10 on this.11 Q. That's the only response you received?12 A. Yes.13 Q. He responded to you at 3:01. And then at14 3:38, you send the email, "Without showing any15 desire to micromanage, there are still continuing16 complaints which were heard last year as well.17 The track is becoming too dusty and dirty. People18 want it to be the Disney Universal of the north."19 Was that an issue that you had raised20 with Mr. Kay earlier?21 A. That was not an issue. But basically,22 when I was walking around the track on opening23 day, the backyard of the track was dusty, dirty,24 and did not look the way a facility should open,25 especially a shrine like Saratoga should be on the
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1 (Bennett Liebman)2 day that -- on opening day. It should not look3 like the Saratoga Performing Arts Center after a4 rock concert.5 Q. Was this routine for you to make these6 kind of comments or suggestions to Mr. Kay?7 A. Since I'd only met Mr. Kay the day8 before, it would not be routine for me to make9 those comments.
10 Q. Well, was it routine for you to make11 comments or suggestions to people in Mr. Kay's12 position at NYRA?13 A. Yes, at various times. Especially on the14 state Racing and Wagering Board, all the time.15 Q. Did you have either an in-person or a16 telephone conversation with Mr. Kay about this17 issue at any point in time?18 A. This is July 19th. Two weeks after that,19 I had called Mr. Kay -- I called Mr. Kay on a20 different matter. The matter involved NYRA's21 treatment of the New York State Gaming Commission22 at a meeting that the Gaming Commission had held23 earlier that week. NYRA had requested the Gaming24 Commission to approve a new wager called the25 Pick 5. We had Pick 5 consecutive winners, and
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1 (Bennett Liebman)2 Q. You were aware that litigation had been3 commenced in the summer of 2013 relating to the4 exclusion of the Wandering Dago at Saratoga?5 A. Yes.6 MS. GALLIGAN: Objection to form.7 Q. And you were aware that litigation had8 been commenced with regard to the exclusion of9 Wandering Dago from the Empire State Plaza lunch
10 program?11 A. Yes.12 Q. Did you make any effort, at the time13 those lawsuits were brought, to preserve any14 documents relating to Wandering Dago?15 A. No.16 Q. And you received no indication from17 counsel, any counsel, to preserve any documents;18 is that correct?19 A. That's correct.20 Q. So if there were any documents, they21 would have been erased by virtue of the 90-day22 policy?23 A. Yes.24 Q. Were there such documents that were25 erased by virtue of the 90-day policy?
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1 (Bennett Liebman)2 A. 91 and 92 were.3 Q. How did it happen that you were able to4 produce those in this action?5 A. I was not. I think these are from NYRA.6 I had assumed incorrectly that the Governor's7 office would preserve documents that had been the8 subject of a FOIL request, but apparently that was9 not the case.
10 Q. How did you know that?11 A. Because when -- when the request for12 documents for emails came in and it said none, I13 was sort of aghast that these documents were not14 available.15 Q. When you say "the request came in," are16 you talking about the FOIA request?17 A. Not from The Times, no.18 MS. GALLIGAN: He's referring to the19 subpoena.20 A. The subpoena, yeah.21 Q. Okay.22 A. I just could not believe that they would23 not have preserved records that were subject to a24 FOIL request.25 Q. Did you make any inquiries as to what
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1 (Bennett Liebman)2 efforts were made to preserve them?3 A. No. But basically, what I said was,4 Wait. A, I can't believe they're not there, but5 NYRA should have them.6 Q. Did you create any emails, other than 917 and 92, relating to Wandering Dago?8 A. Other than the ones that I think are in9 the Monday documents, the Monday after, I don't
10 remember anything beyond that.11 Q. Do you recall whether you sent any12 internal emails to other people in the executive13 chamber about Wandering Dago in 2013 that may not14 have been preserved?15 A. I don't believe there are.16 Q. What inquiries did you make when you17 learned that there were no documents responsive to18 our discovery request in this case?19 A. I'd do anything other than to hit my20 head -- shake my head in disbelief.21 Q. Did you talk to anyone in the executive22 chamber?23 A. The only person I talked I think about24 this was Brad Allen, who was the assistant counsel25 with Racing and Wagering at the time.
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1 (Bennett Liebman)2 Q. Did you seek legal advice from Mr. Allen?3 A. No.4 Q. What did you tell Mr. Allen?5 A. I said basically, I can't believe we6 don't have these documents.7 Q. And his response was?8 A. None.9 Q. Did anyone in the executive chamber
10 preserve the communications with regard to the11 FOIA request and the documents produced pursuant12 to the FOIA request?13 A. I have no idea.14 Q. Did you make any inquiry into that?15 A. No, I did not. Yes, in the sense that16 when I could not respond to the subpoena, I asked17 what about -- what about the FOIL request, because18 I thought, you know, I would be able to point to19 these documents. And I was told that they did not20 maintain those documents.21 Q. I'm sorry, did not maintain the documents22 that were produced to The New York Times --23 A. Right.24 Q. Who told you that?25 A. I believe -- I believe Brad Allen did.
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1 (Bennett Liebman)2 A. NYRA -- OGS does permitting at all video3 lottery facilities, and OGS is the landlord for4 NYRA at the tracks.5 Q. You testified that OGS is the landlord at6 Saratoga?7 A. Yes.8 Q. Is that because the state owns the land?9 A. Since 2008, it's clear that the state
10 owns the land.11 Q. And who at OGS has responsibility with12 regard to its role as landlord at the Saratoga13 track?14 A. I don't know.15 Q. Can you identify any OGS officials that16 have any involvement with regard to OGS' role as a17 landlord at the track?18 A. I don't know.19 Q. Have you ever dealt with any OGS20 officials with regard to the operation of the21 Saratoga track?22 A. In 2011, I think in maybe the last summer23 or early fall, I had convened a meeting of people,24 also with the criminal justice people, in the25 Governor's office regarding fire safety at the
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1 (Bennett Liebman)2 NYRA tracks, because I've always been concerned3 about the issue of fire safety at Saratoga.4 I know OGS people were at that meeting,5 although it turned out that fire safety was under6 the purview of Homeland Security rather than OGS.7 I thought it might have been under the OGS, but we8 were there trying -- basically trying to make sure9 that the race track was not a fire trap.
10 Q. Who did you meet -- who from OGS was11 present at that meeting?12 A. I don't remember.13 Q. Do you know whether anyone at the race14 track or NYRA had any conversations with anyone at15 OGS about Wandering Dago at any time?16 A. I wouldn't know.17 MR. CARPINELLO: Let's take a short18 break.19 (Break taken)20 MR. CARPINELLO: Ready?21 BY MR. CARPINELLO:22 Q. Mr. Liebman, I think you testified23 earlier that you had sent -- you said you sent an24 email around the executive chamber saying, I was25 the state official that was quoted in some
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1 (Bennett Liebman)2 article.3 MS. GALLIGAN: Object to form.4 Q. Did I recall correctly?5 A. Not so much -- in general, yes, but it6 wasn't the person quoted, but that I assumed that7 I had to be the official referred to as talking to8 NYRA about the Wandering Dago.9 Q. And you sent this email to whom?
10 A. My best recollection is that I sent it to11 Howard Glaser. I sent it to -- a copy to Linda12 Lacewell and probably a number of people in the13 Governor's press office.14 Q. And that email we don't have here today;15 right?16 A. You do not have it.17 Q. And you testified that you learned in18 2011 that your emails were deleted according to a19 policy?20 A. Yes.21 Q. Did you make any inquiry as to whether22 they could be retrieved on a hard drive or some23 server or some other method?24 A. In 2011, when I asked them, What do I do25 to retain this, all I was told by the people in
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1 (Bennett Liebman)2 the computer services unit was that I needed to3 make a copy of it and put it on a word document.4 Q. Well, I'm asking a slightly different5 question. Other than a method of retaining6 something that's already on your computer, did you7 inquire as to whether there was a way of8 retrieving emails that had been deleted?9 A. No. Actually, I did. I said, How do I
10 find this document? And they said, Sorry, it's11 gone.12 Q. They said there was no way to retrieve13 it?14 A. They said I couldn't retrieve it.15 Q. Who did you talk to about the deletion of16 your emails?17 A. One of the people in the computer18 services unit. A number of people who work for19 Thomas Irvin. I don't remember who I spoke to in20 particular.21 Q. Thomas Irvin is whom?22 A. Is the chief of computer services in the23 Governor's office.24 Q. The Governor's office has its own25 computer services office?
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Exhibit C
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UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK WANDERING DAGO, INC.,
Plaintiff,
-against- NEW YORK STATE OFFICE OF GENERAL SERVICES, ROANN M. DESTITO, JOSEPH J. RABITO, WILLIAM F. BRUSO, JR., AARON WALTERS, NEW YORK RACING ASSOCIATION, INC., CHRISTOPHER K. KAY, STEPHEN TRAVERS, JOHN DOES 1-5, and THE STATE OF NEW YORK,
Defendants.
DOCUMENTS PROVIDED IN
RESPONSE TO NON-PARTY SUBPOENA
13-CV-1053
MAD/RFT
Non-party witness, Bennett Liebman, by his attorney, Eric T. Schneiderman, Attorney
General of the State of New York, responds to the document demand contained in plaintiff’s
Subpoena to Testify at a Deposition in a Civil Action, dated July, 2014, , as follows:
1. All communications, including without limitation emails, voicemails, and text
messages, between You and NYRA concerning or discussing Wandering Dago.
Response: Bennett Liebman is not in possession of any such documents. Email
exchanged between Bennett Liebman and NYRA regarding Wandering Dago has been provided
to plaintiff by counsel for the NYRA defendants.
2. All communications, including without limitation emails, voicemails, and text
messages, between You and any official of the State of New York concerning or discussing
Wandering Dago.
Case 1:13-cv-01053-MAD-RFT Document 146-3 Filed 03/09/15 Page 2 of 5
Response: Documents responsive to this demand are all privileged from disclosure,
as described in the following Privilege Log.
BATES NUMBER DATE DESCRIPTION PRIVELEGE BL 000001 – 0000003 July 19, 2013 Portfolio Weekly Report prepared by
Bennett Liebman containing status report on various issues being monitored by the Deputy Secretary for Racing and Gaming. Three-page document; contains one paragraph regarding Wandering Dago’s removal from track.
Material prepared in anticipation of litigation, Executive Privilege, Inter/Intra-Agency Privilege
BL 000004 – 000007 July 26, 2013 Portfolio Weekly Report prepared by Bennett Liebman containing status report on various issues being monitored by the Deputy Secretary for Racing and Gaming. Four-page document; contains one paragraph status report on Wandering Dago.
Material prepared in anticipation of litigation, Executive Privilege, Inter/Intra-Agency Privilege
BL 000008 – 000012 August 30, 2013 Portfolio Weekly Report prepared by Bennett Liebman containing status report on various issues being monitored by the Deputy Secretary for Racing and Gaming. Five-page document; contains one paragraph status report on Wandering Dago litigation.
Material prepared in anticipation of litigation, Executive Privilege, Inter/Intra-Agency Privilege
BL 000013 - 000019 September 20, 2013
Portfolio Weekly Report prepared by Bennett Liebman containing status report on various issues being monitored by the Deputy Secretary for Racing and Gaming. Seven-page document; contains one paragraph status report on Wandering Dago litigation.
Material prepared in anticipation of litigation, Executive Privilege, Inter/Intra-Agency Privilege
BL 000020 – 000025 September 27, 2013
Portfolio Weekly Report prepared by Bennett Liebman containing status report on various issues being monitored by the Deputy Secretary for Racing and Gaming. Six-page document; contains one paragraph status report on Wandering Dago litigation.
Material prepared in anticipation of litigation, Executive Privilege, Inter/Intra-Agency Privilege
BL 000026 – 000031 October 4, 2013 Portfolio Weekly Report prepared by Bennett Liebman containing status report on various issues being monitored by the Deputy Secretary for Racing and Gaming. Six-page document; contains one paragraph status report on Wandering Dago litigation.
Material prepared in anticipation of litigation, Executive Privilege, Inter/Intra-Agency Privilege
BL 000032 – 000039 October 11, 2013 Portfolio Weekly Report prepared by Material prepared in
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Case 1:13-cv-01053-MAD-RFT Document 146-3 Filed 03/09/15 Page 3 of 5
Bennett Liebman containing status report on various issues being monitored by the Deputy Secretary for Racing and Gaming. Eight-page document; contains one paragraph status report on Wandering Dago litigation.
anticipation of litigation, Executive Privilege, Inter/Intra-Agency Privilege
BL 000040 – 000047 October 18, 2013 Portfolio Weekly Report prepared by Bennett Liebman containing status report on various issues being monitored by the Deputy Secretary for Racing and Gaming. Eight-page document; contains one paragraph status report on Wandering Dago litigation.
Material prepared in anticipation of litigation, Executive Privilege, Inter/Intra-Agency Privilege
BL 000048 – 000055 October 25, 2013 Portfolio Weekly Report prepared by Bennett Liebman containing status report on various issues being monitored by the Deputy Secretary for Racing and Gaming. Eight-page document; contains one paragraph status report on Wandering Dago litigation.
Material prepared in anticipation of litigation, Executive Privilege, Inter/Intra-Agency Privilege
BL 000056 – 000063 November 1, 2013
Portfolio Weekly Report prepared by Bennett Liebman containing status report on various issues being monitored by the Deputy Secretary for Racing and Gaming. Eight-page document; contains one paragraph status report on Wandering Dago litigation.
Material prepared in anticipation of litigation, Executive Privilege, Inter/Intra-Agency Privilege
BL 000064 - 000069 November 17, 2014
Portfolio Weekly Report prepared by Bennett Liebman containing status report on various issues being monitored by the Deputy Secretary for Racing and Gaming. Six-page document; contains one paragraph status report on Wandering Dago litigation.
Material prepared in anticipation of litigation, Executive Privilege, Inter/Intra-Agency Privilege
Dated: Albany, New York October 31, 2014
ERIC T. SCHNEIDERMAN Attorney General of the State of New York Attorney for Bennett Liebman The Capitol Albany, New York 12224-0341 By: s/Colleen D. Galligan Colleen D. Galligan Assistant Attorney General, of Counsel Bar Roll No. 105167 Telephone: (518) 474-4402 Fax: (518) 473-1572 (Not for service of papers)
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