Case 1:13-cv-01053-MAD-RFT Document 120 Filed 11/10/14 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) 474-4402

November 10, 2014

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 November 6, 2014 [Dkt # 114], pursuant to the Courts
Text Order of November 6, 2014 [Dkt # 115].
Liebman Response to Subpoena
Spoliation
The Individual OGS Defendants did not destroy any evidence, and thus, any adverse
inference against them is inappropriate.
Initially, plaintiff mistakenly contends that it received State Defendants 1 response to
[plaintiffs] subpoena document request to non-party Bennett Liebman. [Dkt # 114 at 1.] As
expressly set forth in Mr. Liebmans response, the response was from Mr. Liebman and from Mr.
Liebman alone. [Dkt # 114, Exhibit A.] The Office of the Attorney General represents RoAnn
1 It is misleading to refer to the Individual OGS Defendants as State Defendants. Neither the State of New York
nor any other New York State agency is a party to this action. This Office is representing the Individual OGS
Defendants in their individual capacities only pursuant to New York Public Officers Law 17.
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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M. Destito, Joseph J. Rabito, William F. Bruso, Jr., and Aaron Walters in their individual
capacities as defendants in the instant action (Individual OGS Defendants). [Dkt # 86 and #
90.] This Office also represents Mr. Liebman, who is not a party to this action, in connection
with plaintiffs subpoena to Mr. Liebman. Despite plaintiffs suggestion otherwise [Dkt # 15 at
1, n.1], this Offices representation of Mr. Liebman in connection with the subpoena does not
render the response by Mr. Liebman to be a response of the Individual OGS Defendants.
Plaintiffs request, however, is premised upon Mr. Liebmans response. It would be improper to
sanction the Individual OGS Defendants for a response that they did not provide and had no
obligation to provide.
To that end, 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, particularly an adverse inference
instruction, are unwarranted where the party against whom sanctions are sought has 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 allegedly spoliated email belonged to Mr. Liebman. 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. Thus, to the extent that Mr. Liebmans email
might have been deleted, this deletion cannot be attributed to the Individual OGS Defendants,
and thus, the plaintiff is not entitled to an adverse inference instruction 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.
Moreover, even if the Individual OGS Defendants were responsible for the deletion of the
email sought, the instruction sought is illogical and does nothing to further plaintiffs claims
against the Individual OGS Defendants. Plaintiff seeks an adverse inference instruction against
the State Defendants permitting the conclusion that the deleted documents would have
demonstrated that the NYRA expulsion was done at the instigation of State officials. [Dkt #
115 at 2.] In other words, the plaintiff seeks an adverse inference instruction against the
Individual OGS Defendants, not in connection with the claims against the Individual OGS
Defendants, but in connection with the claims against NYRA. It is not proper to issue an adverse
inference instruction against a defendant in connection with claims that are not asserted against
that defendant.

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A spoliation adverse inference instruction is also improper because the evidence which
plaintiff claims was destroyed still exists and has been provided to plaintiff. The NYRA
defendants produced the e-mail exchange between Bennett Liebman and Christopher Kay of
NYRA as Document NYRA 000358. A copy of the e-mail exchange is attached hereto as
Exhibit A. The purpose of an adverse inference instruction is to allow the jury to assume that the
missing evidence did not support the position of the party that destroyed it. Here, the evidence is
part of the record so there is no need to infer what the document says.
Additionally, I must address a misstatement in the third paragraph of plaintiffs
November 6, 2014 correspondence [Dkt # 115]. Mr. Carpinello claims that during a meet and
confer telephone conversation between myself and Mr. Hawrylchak on November 5, 2014, I
told Mr. Hawrylchak that Liebmans emails were subject to automatic deletion after 90 days
unless affirmative steps were taken to preserve them. This is not accurate. During the meet and
confer, I advised Mr. Hawrylchak that there was an email exchange between Mr. Liebman and
NYRA regarding Wandering Dago and that Mr. Liebman could not locate the email. I told Mr.
Hawrylchak that it was my understanding that the email was not intentionally deleted. Mr.
Hawrylchak asked how email could be lost if it wasnt intentionally deleted. I responded that I
do not know what the document retention policy was in Mr. Liebmans office, but that in my
office emails are deleted after 90 days unless affirmative action is taken to preserve them.
Bennett Liebmans Weekly Reports
Initially, it should be noted that on November 6, 2014, plaintiff was provided with the
identities of the individuals who received copies of the documents identified in Mr. Liebmans
privilege log, by way of a supplemental response to the subpoena. A copy of Mr. Liebmans
supplemental response is attached hereto as Exhibit B.
Statements regarding Wandering Dago contained in Bennett Liebmans weekly reports
are immune from disclosure as material prepared in anticipation of litigation, executive privilege,
and intra-agency communications.
Rule 12(b)(3) of the Federal Rules of Civil Procedure provides that:
Ordinarily, a party may not discover documents and tangible things
that are prepared in anticipation of litigation or for trial by or for
another party or its representative (including the other partys
attorney, consultant, surety, indemnitor, insurer, or agent.)
Rule 26(b)(3)(A). Rule 26 further provides that:
If the court orders discovery of those materials, it must protect
against disclosure of the mental impressions, conclusions,
opinions, or legal theory of a partys attorney or other
representative concerning the litigation.
Rule 26(b)(3)(B).
Here, the inclusion of Wandering Dago in Mr. Liebmans weekly reports to the Executive
Chamber was clearly based upon his impression that Wandering Dagos removal from the track
might result in litigation. Plaintiff specifically challenges Mr. Liebmans claim of privilege with

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regard to the July 19, 2013 report and the July 26, 2013 report. A review of these records,
provided to the Court for in camera review as Exhibit C, reveals that the actions of Plaintiff after
its removal from the track make the likelihood of litigation a reasonable expectation. (See
Exhibit C at BL 000003 and BL 000005.) The later entries regarding Wandering Dago were all
made after the instant action was commenced and include Mr. Liebmans impressions and
opinions with regard to the litigation. (Exhibit C, BL 000021, BL 000027, BL 000033, BL
000041, BL 000051, BL 000059, and BL 000066.)
Mr. Liebmans weekly reports are also privileged from disclosure by the intra-agency
communication/deliberative process privilege and the executive/legislative privilege. The
portfolio weekly report provides the Executive Chamber with information on issues within the
state upon which the Governor may wish to take some executive or legislative action. 2 The
Speech and Debate Clause of the U.S. Constitution protects disclosure of materials that bear
upon the intent of the legislator when taking legislative action. . The Governor has limited,
though exclusive, quasi-legislative roll in the proposing and drafting of legislation. Larabee v.
Governor, 65 AD3d 74, 95 (1st Dept 2009). The purpose of the Speech and Debate Clause is to:
(1) avoid judicial interference in the functioning of the legislature, and (2) enhance the
legislative deliberative process. Favors v. Cuomo, 2013 U.S. Dist. LEXIS 113076 (EDNY 2012)
* 14. (Appendix A.) This immunity has been extended to state actors through federal common
law. Id * 15
Here, one of the purposes of Mr. Liebmans weekly reports was to provide the Executive
Chamber with information upon which the Governor might want to take some executive or
legislative action. Indeed, review of the in camera documents indicate that some action was
taken by the Governor in response to these reports. (See for example, Exhibit C, BL 000027
provided for in camera review.) Because this communication was done for the purpose of
determining what, if any, action should be taken by the Governor or his staff, it also falls
squarely within the intra-agency communication/deliberative process privilege. Therefore, all of
the documents identified in the Leibman Privilege Log are immune from disclosure.
If, however, the Court should determine that some or all of the entries in Mr. Liebmans
weekly reports are not immune from discovery, Mr. Liebman asks that these documents be
redacted to remove all entries which do not directly relate to plaintiff or this litigation. A review
of the in camera documents provided to the Court as Exhibit C reveals the confidential and
highly sensitive nature of the information contained in the weekly reports, and the fact that this
information, with the exception of the paragraphs labelled Wandering Dago Food Truck and
Wandering Dago Lawsuit are wholly unrelated to this action.
Non-Party Subpoena to SUNY
On November 4, 2014, Plaintiffs Counsel provided a copy of a non-party subpoena
issued to the State University of New York, dated November 3, 2014. A copy of the subpoena is
attached hereto as Exhibit D. This subpoena seeks deposition testimony and documents related
to potential food vending by Wandering Dago on or near the University at Albany Campus . . .
(Exhibit C, p. 10.) On its face, the documents demanded through the subpoena do not appear to
2 While the report itself was prepared in the regular course of business, the inclusion of the information regarding
Wandering Dago was not. The exclusion of a particular vender from the track would not have been included in the
report but for plaintiffs statements to the media and the apparent likelihood of litigation.

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be related to the claims in this action. Therefore, the Individual OGS Defendants respectfully
request that the Court require Plaintiff to make a showing, pursuant to Rule 45(d)(3)(C)(i), of
substantial need for the testimony or material subpoenaed in connection with the instant
action.3 To the extent this subpoena has been issued as a fishing expedition with regard to other
potential law suits, it is improper. The issuance of this subpoena is particularly concerning in
light of the fact that plaintiff has still not noticed a single party deposition.
Thank you for your consideration of these matters.
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
Cynthia Neidl, Esq.
Henry M. Greenberg, Esq.
Greenberg Traurig, LLP
54 State Street, 6th Floor
Albany, NY 12207

3 The Office of the Attorney General does not represent SUNY in connection with this subpoena.