Case 5:12-cv-01171-TJM-TWD Document 101 Filed 04/09/15 Page 1 of 13

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF NEW YORK
P.C., as Administrator of
the Estate of her son K.C.,
Plaintiff,
12-CV-1171 (TJM)(TWD)
-againstLISA TAYLOR, LAURI TOMASSI,
SHARON BUTLER, ERIC SADLON,
LEKISHA TERRELL, HERSHANI DOE,
and JOHN and JANE DOES, 1-20,
Defendants.

PLAINTIFFS MEMORANDUM OF LAW IN SUPPORT OF SANCTIONS FOR

DEFENDANTS REPEATED PERJURY, EVIDENCE TAMPERING, AND
SPOLIATION

Emery Celli Brinckerhoff & Abady LLP

600 Fifth Avenue, 10th Floor
New York, New York 10020
(212) 763-5000

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TABLE OF CONTENTS

I.

Defendants Repeated Spoliaton of Evidence ......................................................................... 1

A. Background: A Culture of Abuse and Covering Up the Truth ............................................ 1
B. Spoliation of Butler-Taylor Texts ........................................................................................ 3
i.

Missing January 9, 2014 Texts......................................................................................... 3

ii.

Missing January 10, 2014 Texts....................................................................................... 4

C. Spoliation of Terrell-Tomassi Emails .................................................................................. 5

D. Spoliation of Tomassi-Butler Texts ..................................................................................... 6
E. Spoliation of Tomassi-Boudnaraine Texts........................................................................... 6
i.

Request for Text Messages .............................................................................................. 7

II. Strong Sanctions Are Warranted ............................................................................................. 7

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I.

Defendants Repeated Spoliation of Evidence

A.

Background: A Culture of Abuse and Covering Up the Truth

The subject of the upcoming trial is the six defendants sadistic abuse of a

severely disabled young man during the nine months that he lived at OD Heck, a New York State
residential and treatment center for disabled adults. The victim, K.C., was disabled from birth.
He had autism, mental retardation, and CHARGE syndrome, and was severely underweight.
DefendantsLisa Taylor, Laurie Tomassi, Sharon Butler, Eric Sadlon, Lekisha Terrell, and
Hershanie Boudnarainewere employed by New York State to care for residents at OD Heck,
including K.C. Their job was to safeguard K.C.s health and safety, care for his personal needs,
and guide and encourage him through the tasks of his daily life.
Instead, they confined K.C. to an 8-foot-square mat for hours on end, giving him
no activities or attention, and used threats of force to keep him there. They repeatedly hit K.C.
with a broken stick, hit him with towels, stuffed towels and socks in his mouth, stepped on his
hands, pulled his fingers backward, called him names such as it, the thing, and the walking
plague, denied him food and water, and inflicted other serious injuries on him, including a black
eye and a burn to his neck with a cigarette lighter.
K.C.s horrific treatment was uncovered by a trainee at OD Heck named Mary
Maioriello. She reported defendants misconduct to the States Office for People With
Developmental Disabilities (OPWDD), which operated OD Heck, in October 2010, about five
months after K.C. arrived. In late February 2011, K.C. was taken from OD Heck to the hospital,
malnourished and with aspiration pneumonia. On March 30, 2011, K.C. died, at the age of 22.
The last nine months of his life were spent under the control of defendants, who, in the words of

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their own colleagues, treated K.C. worse than an animal. Ex. H (Maioriello dep.) 91/2-92/7;
Ex. I (Mahnken dep.) 97/6-24, 113/4-114/21.
The defendants were all employed by New York State, all worked together at OD Heck
for years, and all (except Boudnaraine) worked together for years in Unit 9D (K.C.s unit). All
(except Boudnaraine) were close-knit, Ex. A (Butler dep.) 49/9-19, and for a long time had
been friends who would go drinking and dancing together, and to each others houses, id.
45-49. These colleagues/friends created a culture in Unit 9D of covering up abuse. As Ms.
Maioriello testified: I was told by Sharon Butler on one of my first days that I would do fine at
O.D. Heck as an employee if I kept my eyes open and mouth shut. Ex. H (Maioriello dep.)
27/12-15. That was the nature of the place. You dont tell on anybody. You shut up. Id.
134/14-16. On another occasion, K.C. sustained a giant black eye. What do youwho falls on
their eye? And [Butler] said, Shut up. So, I shut up. And I saw what they could do to
somebody who was helpless and frail and non-verbal and vulnerable. What were they going to
do to me? I was scared. Ex. H 27/16-28/8.
These co-defendants not only abused K.C.; they conspired with each other to cover up
the abuse, both during official New York State investigations of the abuse, and during this
lawsuit. Discovery has now revealed a pattern relevant to this obstruction of justice: defendants
repeatedly contacted each other just before their depositions; then denied or minimized that
contact; then destroyed the physical evidence of what was written by whom. Defendants
destruction of all of these text messages and emails lead to the same conclusion: defendants have
conspired with each other to cover up the truth. Defendants serial spoliation of evidence
warrants strong sanction.

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B.

Spoliation of Butler-Taylor Texts

i.

Missing January 9, 2014 Texts

On January 9, 2014, defendant Lisa Taylor was deposed. On January 10, 2014,
defendant Sharon Butler was deposed. On the evening in between these two depositions, Taylor
and Butler sent each other text messages about this case. Ex. A (Butler dep.) 32/12-17. Butler
claimed that Taylor texted: Hey, you, and Butler responded Hey, you. Are you okay? Id.
27. Butler claimed falsely that there were no other texts: That was it. Id. 27/21.
Plaintiffs counsel asked Butler: Do you have a copy of those text messages in your
phone? Under oath, Butler falsely replied: No. Id. 28/10-12. Pressed further, Butler
admitted she might have the messages (sent/received just the night before) on her phone. Id. 28.
On the record, plaintiffs counsel immediately demanded production of the text messages. Id.
32/18-19. After colloquy among counsel, defense counsel permitted Butler to read her text
messages with Taylor with a single redaction, and promised to produce the actual text messages
after the deposition. Id. 34/2-5.
Butler then admitted that she did in fact have the text messages, and that she and Taylor
had a more fulsome exchange than previously admitted. The exchange began at 6:57 pm, a
couple of hours after Taylors deposition concluded, and the night before Butlers deposition,
and supposedly consisted of the following:
Taylor:
Hey you.
Butler:
Was it [the deposition] bad?
Taylor:
Not too bad.
[assertion of privilege]
So I know you can too.
Butler:
Call me.
Taylor:
I will. Give me a few.
Butler:
Okay.

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Id. 34-37. Butler next claimed that, notwithstanding their decision to speak with each other, see
supra, they did not actually speak. Id. 36/3.
Unfortunately, whatever text messages were actually exchanged between these two
defendants on the evening between their depositions will never be known: the January 9, 2014
text messages on Butlers phone have disappeared. The January 9, 2014 text messages on
Taylors phone have also disappeared. Ex. D (March 26, 2015 email of Harris Dague).
Though defense counsel promised to produce the Butler-Taylor text messages after the
deposition, id. 34/2-5, counsel did not produce the text messages. Defense counsel now states
that these defendants no longer have the text messages. Ex. D (March 26, 2015 email of Harris
Dague). They are missing.
ii.

Missing January 10, 2014 Texts

This is only the beginning of a troubling pattern. Weeks ago, the defense for the first
time produced a different set of text of messages between Butler and Taylor, these from the
morning of January 10, just hours before Butlers deposition. 1 Ex. E (last page: Butler in blue,
Taylor in grey). When Butler read her alleged text messages to/from Taylor into the record at
the deposition, she somehow failed to read any of the January 10 messages. Ex. A (Butler dep.)
34-37. The January 10, 2014 text production is also plainly incomplete, ending as it does, with
Butlers question to Taylor (what time did u get out? [of the deposition]). Ex. E (last page).
We will never know what additional texts Taylor and Butler exchanged about this case, during
the approximately 17 hours between their depositions. The full Butler-Taylor January 10, 2014
exchange is now missing, both from Butlers phone, and from Taylors phone.

Though the production is cut off at the top, it is clear that the text messages are dated Friday,
January 10, 2014, in the morning (likely, 8:03 am).
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C.

Spoliation of Terrell-Tomassi Emails

Butler and Taylor are not the only defendants who destroyed evidence. On November
14, 2013, defendant Lekisha Terrell was deposed. On November 15, 2013, defendant Laurie
Tomassi was deposed. As of that time, Terrell and Tomassi had not worked together for at least
five months, Ex. B (Terrell deposition) 51/5-7, and had had minimal, if any, contact for months,
id. 51/8-52/17. The day before Terrells deposition, however, Tomassi suddenly emailed Terrell,
asking . . . how [Terrells] preparation was going for [Terrells] deposition. Id. 48/6-8. Terrell
and Tomassi then had a series of emails about this case and their depositions. Id. 47-48.
On the record, plaintiffs counsel immediately requested production of those emails. Id.
51/23-52/3. Plaintiff reiterated the request by letter to the Attorney Generals office (which
represents both Terrell and Tomassi), including a request for any deleted emails between the two
defendants. Ex. F (Letter dated Dec. 12, 2013 to Harris Dague, par. 1).
These emails, regrettably, have also gone missing. Ex. G (email from Harris Dague dated
April 6, 2015). The Terrell-Tomassi emails have gone missing from Tomassis email account.
The Terrell-Tomassi emails have also gone missing from Terrells email account. Id. 2
In short, two defendants emailed about deposition preparation within one and two days of
their depositions; plaintiff immediately demanded those emails on the record; and now these
emails have been deleted from both email accounts.

Equally disturbing was Tomassis testimony concerning those emails with Terrell, sent one day
before Terrells deposition, and two days before Tomassis deposition. First Tomassi denied
them outright, Ex. C (Tomassi Dep.) 26/6-10, then could not remember if she sent an email
two days before, id. 28/6-10, then claimed she only asked [Terrell] how her day was, id. 28/1114, then claimed to forget what was in the emails altogether, id. 31/16-23.
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D.

Spoliation of Tomassi-Butler Texts

As of her deposition, Tomassi had not worked with co-defendant Sharon Butler for a
long time. Ex. C (Tomassi dep.) 116/15-17. Tomassi testified that she had not heard from her
co-defendant, Sharon Butler, for months. Id. 35/18-36/2.
After the lunch break, and after speaking with her lawyer, however, Tomassi admitted
that she had in fact received a text from Butler just a couple days before her deposition. Id.
105-08, 106/13-14. Butler texted Tomassi out of the blue. Id. 108/13-15. Butler supposedly
wrote, Can you please call me at home. Id. 106/13-15. In the two days between Butlers text
and the deposition, Tomassi claimed she deleted Butlers text message, either last night [the
night before the deposition] or the night before. Id. 113/18-21.
E.

Spoliation of Tomassi-Boudnaraine Texts

As of her deposition, Tomassi had also not worked with co-defendant Hershanie
Boudnaraine for a long time. Ex. C 116/15-17. Tomassi testified that she may have saw her
[Boudnaraine] in passing a week before, but the subject of the case did not come up. Id. 47.
After lunch, and after speaking with her lawyer, however, Tomassi revealed that the two
defendants were actually texting back and forth a couple days before Tomassis deposition. Id.
110/19-21. Boudnaraine began the text exchange, id. 110/22-23, again out of the blue, id.
114/15-21. In the two days between this text conversation and the deposition, Tomassi claimed
she deleted all of these text messages as well, either last night [the night before the deposition]
or the night before. Id. 113/18-21.

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i.

Request for Text Messages

Text messages can be preserved by both sender and receiver. At this point in the
Tomassi deposition, plaintiff made the following preservation requests of counsel for Butler and
Boudnaraine:
MR. MAAZEL:
MR. DONOVAN:
MR. MAAZEL:
MR. DONOVAN:
MR. DAGUE:
MR. MAAZEL:
MR. DAGUE:
MR. MAAZEL:
MR. DAGUE:
MR. MAAZEL:

Okay. Im just going to ask, I guess, both Ryan and Harris as

counsel for Harshanie Boadnaraine, Sharon Butler, that we
preserve text messages sent to and from them to Laurie Tomassi.
Ill make a note. Just put it in writing.
I want to make a record right now so that no one deletes
anything.
You just did.
Between Boadnaraine and Tomassi and Butler and Tomassi?
Right.
Thats what you are asking for?
Right.
Text messages.
Text messages.

Id. 118/13-119/9. On December 12, 2013, plaintiff followed up with discovery requests for both
sets of text messages. Ex. F pars. 2-3. All those text messages, however, are now missing as
well. Ex. D (March 26, 2015 email of Harris Dague). 3
II.

Strong Sanctions Are Warranted

Defendants Taylor and Butler texted each other on the night in between their depositions.

Those texts are missing. Taylor and Butler texted each other on the morning of Butlers
deposition. Some of those texts are missing. Terrell and Tomassi emailed each other the day
before Terrells deposition, about deposition preparation. Those emails are missing. Butler
texted Tomassi a couple days before Tomassis deposition. That text is missing. Boudnaraine

In the email exchange, plaintiffs counsel mistakenly believed the defense had produced a text
exchange between Tomassi and Boudnaraine. Defense counsel later clarified that the exchange
was actually between Butler and Taylor (the incomplete January 10, 2014 exchange).
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and Tomassi were texting back and forth a couple days before Tomassis deposition. Those
texts are missing.
The Second Circuit has defined spoliation as the destruction or significant alteration of
evidence, or the failure to preserve property for anothers use as evidence in pending or
reasonably foreseeable litigation. West v. Goodyear Tire & Rubber Co., 167 F.3d 776, 779 (2d
Cir. 1999). The spoliation of evidence germane to proof of an issue at trial can support an
inference that the evidence would have been unfavorable to the party responsible for its
destruction. Kronisch v. United States, 150 F.3d 112, 126 (2d Cir.1998); see also Byrnie v.
Town of Cromwell, Bd. of Educ., 243 F.3d 93, 107 (2d Cir. 2001).
There is little question that defendants spoliated evidence here. In each case, the
litigation was not only foreseeable, but ongoing. In each case, the spoliated evidence contained
highly relevant evidence: communications among defendants about this litigation. In each case,
defendants spoliated evidence while they had ongoing discovery obligations. In each case, the
spoliation occurred after either an express, specific demand on the record for the documents,
supra, I(B, C), or a demand on the record for preservation of the documents, supra, I(D, E).
The plain inference is that defendants repeatedly destroyed evidence as part of their conspiracy
to cover up the truth of K.C.s abuse. In any event, [r]elevance and prejudice may be presumed
when the spoliating party acted in bad faith or in a grossly negligent manner. Pension Comm.
of Univ. Montreal Pension Plan v. Banc of Am. Sec., 685 F. Supp. 2d 456, 467 (S.D.N.Y. 2010)
(abrogated on other grounds by Chin v. Port Auth. of N.Y. & N.J., 685 F.3d 135 (2d Cir. 2012)).
Equally troubling is defendants repeated false testimony in connection with the nowdestroyed evidence. Butler claimed she did not have the Butler-Taylor texts. That was false
testimony. Supra, I(B)(i). Butler claimed there were only two texts. That was false testimony.

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Supra, I(B)(i). When Butler finally read her alleged text messages with Taylor into the record,
she somehow omitted all of their January 10, 2014 texts. That was, at best, highly misleading
testimony. Supra, I(B)(ii). Tomassi denied her emails with Terrell (sent two days before
Tomassis deposition), then could not remember them, then misrepresented their content, then
forgot their content. This was all false testimony. Supra, I(C) n.2. Tomassi claimed she had
not heard from Butler for months before her deposition. More false testimony. Supra, I(D).
Tomassi claimed she may have seen Boudnaraine in passing a week before Tomassis
deposition, when actually they were texting back and forth a couple days before Tomassis
deposition. This was also false testimony. Supra, I(E).
Given the sheer number of times defendants spoliated evidence, the sheer number of
defendants who spoliated evidence, the timing of the spoliation (in all cases, in the middle of this
litigation), the repeated and willful spoliation of evidence after an express request was made for
that evidence on the record and in front of the witness, and defendants repeated failure to tell the
truth under oath in connection with the now-destroyed evidence, a strong sanction is warranted.
Courts have an inherent power to sanction parties for spoliation of evidence in order to retain
the confidence that the process works to uncover the truth. . . The courts must protect the
integrity of the judicial process. Pension Comm., 685 F. Supp. 2d at 465 (emphasis added).
Spoliation sanctions include from least harsh to most harsh further discovery, cost-shifting,
fines, special jury instructions, preclusion, and the entry of default judgment or dismissal
(terminating sanctions). Id. at 469. 4 Entry of default judgment is appropriate where a party

Pension Committee involved a failure to timely institute written litigation holds and careless
and indifferent collection efforts, but there was no evidence of litigants purposefully
destroying evidence. 685 F.Supp.2d at 463. The Court nevertheless awarded spoliation
sanctions. Here, in contrast, the conclusion is inescapable that defendants purposefully
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has engaged in perjury, tampering with evidence, or intentionally destroying evidence. Id. 46970; see West, 167 F.3d at 779 (Dismissal is appropriate if there is a showing of willfulness, bad
faith, or fault on the part of the sanctioned party.). Here, there is substantial evidence of
perjury, evidence tampering, intentional destruction of evidence, willfulness, bad faith, and fault.
Butler and Tomassi almost certainly committed perjury. Butler willfully destroyed her texts with
Taylor. Terrell and Tomassi destroyed their emails with each other. Butler and Boudnaraine
almost certainly destroyed their texts with Tomassi. This was not a mere failure to do a litigation
hold in anticipation of possible litigation. Defendants engaged in a pattern of willful tampering
with evidence in the middle of a federal civil rights case. At least as to Butler, Terrell and
Tomassi, the Court should grant a default judgment.
Should the Court not grant a default judgment, the Court shouldgiven defendants bad
faithdeem admitted and instruct the jury to accept as true that defendants (except Sadlon)
destroyed evidence as part of a conspiracy to cover up the truth of K.C.s abuse. Pension
Comm., 685 F.Supp.2d at 470. Failing this instruction, the Court should impose a mandatory
presumption that defendants destroyed evidence as part of a conspiracy to cover up the truth of
K.C.s abuse. Id. Failing this presumption, the Court should impose the most modest sanction
of an adverse inference instruction, which permits (but does not require) a jury to presume that
the lost evidence is both relevant and favorable to the innocent party, i.e., an inference that
defendants destroyed the evidence as part of their conspiracy to cover up the truth of K.C.s
abuse. Id.

destroyed evidence. Defendants had the evidence, plaintiff requested it, and now the evidence is
gone.
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CONCLUSION
For all the foregoing reasons, the Court should grant a default judgment against
Butler, Terrell and Tomassi, and deem admitted and instruct the jury to accept as true that
defendants Taylor and Boudnaraine destroyed evidence as part of a conspiracy to cover up the
truth of K.C.s abuse. Short of these remedies, the Court should grant the other sanctions set
forth above, and such other relief as is just and proper.
Dated: April 9, 2015
New York, New York
EMERY CELLI BRINCKERHOFF &
ABADY LLP
____/s/_____________________
Ilann M. Maazel
Hayley Horowitz
600 Fifth Avenue, 10th Floor
New York, NY 10020
(212) 763-5000
Attorneys for Plaintiff

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