30 SOUTH PEA.RL STREET' 11TH FLOOR' ALBANY. NY 12207' PH.

518.434.0600

FAX 518.434.0665

November 6,2014

VIAECF
Hon. Randolph F. Treece
Magistrate Judge
James T. Foley U.S. Courthouse
445 Broadway, Room 314
Albany, NY 12207
Re:

Wandering Dago Inc. v. New York State Office ofGeneral Services, et al.
Civil Action No. 1:13-cv-01053 / MAD-RFT

Dear Judge Treece:

We write to bring several additional issues to Your Honor's attention and to request that
these items be added to the agenda for the upcoming discovery hearing, as well as to reply
briefly to several items in the OGS Defendants' November 4, 2014 letter to the Court.

New York's Spoliation of Evidence

On October 31,2014, we received State Defendants' response to our subpoena document
request to non-party Bennett Liebman. 1 See Exhibit A. Liebman produced no documents
pursuant to the subpoena, but did provide a privilege log identifying certain documents that are
being withheld under claims of privilege. A meet and confer call was held yesterday, November
5,2014, concerning Liebman's responses.
During that meet and confer call, Liebman's counsel revealed that all emails related to
Plaintiff have been deleted. According to Liebman's counsel, Liebman's emails were subject to
automatic deletion after 90 days unless affirmative steps were taken to preserve them. No such
preservation occurred in this case.
"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. '"
Zubulake v. UBS Warburg LLC, 229 F.R.D. 422, 430 (S.D.N.Y. 2004) (quoting Kronisch v.
United States, 150 F.3d 112, 126 (2d Cir.1998)). "A party seeking an adverse inference
instruction (or other sanctions) based on the spoliation of evidence must establish the following
three elements: (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. (citing Byrnie
v. Town ofCromwell, 243 F.3d 93, 107-12 (2d Cir.2001)).

Liebman is represented in connection with this subpoena by OGS Defendants' counsel.

WWW.BSFLLP.COM

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November 6, 2014
Hon. Randolph F. Treece
1:13-cv-Ol053 / MAD-RFT
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Here, the State was on notice that these documents were relevant to the litigation at least
as early as August 27, 2013 2 - only five weeks after Plaintiffs expulsion from Saratoga Race
Course - when Plaintiff filed its complaint alleging the involvement of a high-ranking state
official in NYRA's decision. The State was clearly on notice by September 19,2013, when the
NYRA Defendants introduced an email from Bennett Liebman into evidence during oral
argument on Plaintiffs motion for a preliminary injunction.' The obligation to preserve
documents was clearly triggered well before they were destroyed. The destruction of these
emails was at the very least negligent, which satisfied the "culpable state of mind" requirement.
Id at 431.
Moreover, the relevance of the deleted documents to Plaintiffs claims is clear. The one
email exchange from Bennett Liebman that we do possess demonstrates Liebman's involvement
in the expulsion of Plaintiff from Saratoga Race Course. There is ample circumstantial evidence
that the role played by Liebman (and likely other State officials) was substantial, including the
statement by Defendant Stephen Travers to Plaintiff that his hands were tied because the decision
was directed by a "high-ranking" State official, and an email produced by Centerplate employee
Drew Revella revealing that NYRA officials discussed Plaintiffs potential expulsion over dinner
with a State official. See Exhibit B. We have no way of knowing what Liebman may have
communicated by email to other State officials," but clearly any such communications are
relevant to Plaintiffs claims. "[S]poliation sanctions are appropriate if there is any likelihood
that the destroyed evidence 'would have been of the nature alleged by the party affected by its
destruction,' such that it is relevant to that party's claim." Dataflow, Inc. v. Peerless Ins. Co.,
2014 WL 148685, at *2 (N.D.N.Y. Jan. 13, 2014) (quoting Residential Funding Corp. v.
DeGeorge Fin. Corp., 306 F.3d 99, 108 (2d Cir. 2002)).
We request that the Court take appropriate measures to remedy this spoliation, including
by granting 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 direct instigation of State officials.

Liebman's Improper Claims of Privilege

Although all relevant emails have been destroyed, Liebman is in possession of certain
reports relating to Plaintiff. All of these reports, however, have been withheld under claims of
privilege. As it currently stands, the privilege log does not contain any information about the
recipients of the listed documents. Without this information, it is impossible to assess the

And arguably as early as August 13,2014, when Plaintiff delivered a letter to the Attorney General containing the
same allegation.
3 Neither the State nor NYRA disclosed this email in their motion papers, produced it to Plaintiff, or even advised
Plaintiffs counsel of its existence prior to oral argument.
4 And, as discussed in more detail below, we have no confidence in the completeness of the NYRA Defendants'
documents production.
2

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November 6, 2014
Hon. Randolph F. Treece
1:13-cv-01053/MAD-RFT
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validity of these privilege claims. Liebman's counsel has agreed to provide this information by
the end of the week.
We have concerns, however, with the privilege claims on this log, specifically with
respect to the first two entries, dated July 19,2013 and July 26,2013. Although Liebman claims
both documents are privileged as "[m]aterial prepared in anticipation of litigation," these
documents are dated well before litigation was brought or threatened.' In the case of the July 19,
2013 document, it was apparently created on the very day that Plaintiff was informed that it was
being expelled from Saratoga Race Course. Unlike the later log entries which state that the
documents contain a "one paragraph status report on Wandering Dago litigation," the first two
entries do not reference the litigation. We are doubtful that the first two documents on the log
were prepared in anticipation of litigation. Moreover, the Portfolio Weekly Report is apparently
a regular weekly report containing status updates on various issues. It seems dubious to suggest
that such a report would ever be entitled to protection under the work product privilege.
We also question the applicability of the deliberative process privilege. As we noted in
our earlier letter brief, a document cannot be protected by the deliberative process privilege
unless it is predecisional. Documents describing or explaining past actions are categorically
outside the protection of the deliberative process privilege. The first two documents on
Liebman's privilege log appear to be post-decisional descriptions of Plaintiffs expulsion from
Saratoga Race Course. Furthermore, as noted in our earlier letter brief, the deliberative process
privilege does not apply when the deliberative process itself is directly at issue in the litigation.
Here, the role played by Bennett Liebman in directing or participating in the decision to expel
Plaintiff from Saratoga Race Course is directly at issue in the case. To the extent that any of the
documents bear on this issue, they should be produced.
We request that all of the documents listed on the Liebman privilege log be provided to
the Court for in camera review to evaluate the validity of Liebman's privilege claims.

Plaintiff's Second Set of Requests for Production of Documents to NYRA Defendants

On October 3, 2014, Plaintiff served on the NYRA Defendants a document request

seeking documents sufficient to show the receipts of other food and beverage vendors at
Saratoga Race Course. See Exhibit C. This information is directly relevant to the measure of the
damages incurred due to Plaintiffs exclusion from Saratoga Race Course.
On Monday, November 3, 2014, we received a response from the NYRA Defendants in
which they object to this request in its entirety. See Exhibit D. The NYRA Defendants have
provided no explanation as to why this information is not relevant to Plaintiff s claim for
damages. We requested a meet and confer call with the NYRA Defendants, but they have
It is particularly telling that Liebman claims that documents were being created in anticipation oflitigation at the
very same time he was allowing emails relevant to this litigation to be destroyed.

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November 6,2014
Hon. Randolph F. Treece
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Page 4
refused our request. See Exhibit E. We respectfully request that the Court add this issue to the
agenda for the parties' upcoming discovery hearing.

Serious Deficiencies in the NYRA Defendants' Interrogatory Responses and Document

Production

On October 20, 2014, we received a document production pursuant to subpoenas issued

to non-parties Drew Revella and Centerplate. Upon reviewing these documents, we discovered
that they revealed serious deficiencies in the NYRA Defendants' interrogatory responses and
document production. We explained these deficiencies in detail in an October 24,2014 letter to
the NYRA Defendants. See Exhibit F. To date we have received no response to this letter
whatsoever from the NYRA Defendants.
In short, in response to several interrogatories, NYRA claimed, either explicitly or by
implication, that it had no involvement with (l) the selection or approval of vendors, (2) a press
release issued by Centerplate touting Wandering Dago as "one of the country's top barbecue
fusion trucks", and (3) a listing of vendors, including Wandering Dago, in the official fan guide
to the Saratoga Race Course track season. NYRA instead stated that these items were the
responsibility of Centerplate or a third-party public relations firm. See Exhibit G.6 The
Centerplate document production reveals, however, that (l) NYRA played an active role in
suggesting, rejecting, and approving vendors, (2) NYRA reviewed and revised the Centerplate
press release before it was issued, and (3) NYRA solicited the list of vendors from Centerplate
for inclusion in the official fan guide.
The Centerplate production also revealed that on opening day of the 2013 track season,
Defendant Christopher Kay, NYRA's CEO, discussed whether to expel Wandering Dago from
Saratoga Race Course over dinner with an unnamed state official. NYRA has never identified
this official.
Finally, and most egregiously, the Centerplate production shows that the NYRA
Defendants' document production is woefully incomplete. The NYRA Defendants' production
to date contains not a single email to or from any of the persons NYRA has identified as
involved in the decision to expel Wandering Dago from Saratoga Race Course, with the
exception of the email exchange between Christopher Kay and Bennett Liebman revealed by
NYRA Defendants during oral argument on Plaintiff's motion for a preliminary injunction.
We sent a letter to the NYRA Defendants on October 3, 2014, explicitly requesting
information concerning their production:

6 The NYRA Defendants' amended responses to Plaintiff's First Set ofInterrogatories, dated October 6,2014, which
contain these false or misleading responses, were unverified. We requested that the NYRA Defendants provide us
with verified interrogatory responses as required under the Federal Rules in our October 24,2014 letter, but have
received no response.

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November 6, 2014
Hon. Randolph F. Treece
1:13-cv-01053/MAD-RFT
Page 5
Please confirm that you have searched the files of at least Kay, O'Rourke, Goulet, and
Travers, [the individuals identified by NYRA as responsible for Plaintiffs expulsion,]
and that these files contain no documents either "discussing, mentioning, referring to, or
concerning Wandering Dago," or "concerning the decision to remove Wandering Dago
from Saratoga Race Course," other than the produced Kay/Liebman exchange.
See Exhibit H. The NYRA Defendants response consisted solely of stating that "[w]ith respect
to NYRA's document production, all responsive documents have been produced." See Exhibit 1.
The NYRA Defendants' conspicuous failure to state whether they had even searched the files of
the persons they themselves had designated as involved in the decision to expel Plaintiffled us to
suspect that they had not done so.

This suspicion was confirmed upon review of the Centerplate production. Among other
documents contained in that production that should have been produced by NYRA was an
August 16,2013 email from Drew Revella to Stephen Travers with the subject line "Wandering
Dago Feedback," which contained a detailed recounting by Revella of his interactions with
Plaintiff. See Exhibit J. Defendant Stephen Travers was the NYRA employee who called on the
evening of July 19, 2013, to instruct Plaintiff to leave Saratoga Race Course, and who, with
Centerplate employee Drew Revella, oversaw Plaintiffs departure on the morning of July 20,
2013.
Not only was Travers identified by the NYRA Defendants as the person who informed
Plaintiff of the decision to expel it from Saratoga Race Course, (see Exhibit G,) and identified by
the NYRA Defendants as a person likely to possess discoverable information, (see Exhibit K,)
but the NYRA Defendants actually introduced a declaration from Travers in opposition to
Plaintiffs motion for a preliminary injunction. See Exhibit L. Yet they apparently didn't even
conduct a simple search of Travers' email for the name "Wandering Dago."
We refer Your Honor to our October 24, 2014 letter (Exhibit F) for a more complete
accounting of the deficiencies in the NYRA Defendants' production. In light of the NYRA
Defendants' at best misleading and incomplete interrogatory responses and wholesale failure to
conduct anything approaching a reasonable search for responsive documents, we request that this
Court not only order the production of all of the documents to which Plaintiff is entitled and
complete verified responses to Plaintiffs interrogatories, but also order the NYRA Defendants to
provide a comprehensive account of their document collection and production, including the
identities of all custodians or other document sources searched, any search terms or other
limitations employed, and such other information as will allow Plaintiff and the Court to assess
the completeness of the NYRA Defendants' document production.

OGS Defendants' November 4, 2014 Letter

We would like to briefly reply to the OGS Defendants' letter to the Court dated
November 4,2014. As an initial matter, the OGS Defendants' assertion that "plaintiffs counsel

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November 6,2014
Hon. Randolph F. Treece
1:13-cv-Ol053 / MAD-RFT
Page 6
did not claim [during the October 7, 2014 meet and confer call] that he was unable to determine
whether there was a valid privilege claim based upon the privilege log," is simply untrue. Not
only did Mr. Hawrylchak make this argument during the meet and confer call, but he directly
quoted the language of Rule 26 which requires a party claiming privilege to describe the
documents in a manner that "will enable other parties to assess the claim." OGS Defendants
responded that the email subject lines provided sufficient information.
More to the point, the OGS Defendants' argument that they are unable to provide a more
detailed description of the privilege due to the nature of the documents is belied by the fact that
the majority of their letter consists of them providing exactly the sort of description they claim
they are unable to. We therefore repeat our request that the OGS Defendants be required to
similarly provide additional information concerning all of the documents on their privilege log.
We further ask that the Court review these documents in camera.
With respect to the individual documents, we note only that we are particularly alarmed
by the description provided by the OGS Defendants' of a May 20,2013 email exchange between
Defendant William Bruso and OGS employee Heather Flynn, in which, according to the OGS
Defendants, "Attorney Bruso is advising Ms. Flynn to deny the Wandering Dago application."
This appears to describe Bruso actively directing the very action being challenged by this
litigation. Not only would such direction not be "legal advice" subject to the protection of the
attorney-client privilege, but it appears to contradict the OGS Defendants' assertions in this
litigation that Defendant Bruso was not involved in the decision-making process, but served only
as a legal advisor.
Finally, the OGS Defendants' argue that Children First Foundation, Inc. v. Martinez,
2007 WL 4344915 (N.D.N.Y. Dec. 10,2007), should be distinguished as applying only when the
government's asserted rationale is alleged to be pretextual. As an initial matter, contrary to the
OGS Defendants' assertions, pretext is at issue in this case. The OGS Defendants have asserted
that in addition to Plaintiff's name, the application's denial was also justified because, among
other things, it was late and incomplete. In light of their unambiguous assertion now that
"despite plaintiff's claim to the contrary, the OGS Defendants' position is that Wandering
Dago's application was denied because the name of the food truck is an ethnic slur," the OGS
Defendants should be estopped from invoking in this litigation any of their pretextual
justifications for the denial.
Second, the holding in Children First Foundation does not rely on an allegation of
pretext. Rather, the Court states broadly that "when the decision-making process itself is the
subject of the litigation, the deliberative process privilege cannot be a bar to discovery," and cites
various allegations concerning the decision-making process in support of its decision, including
the claim that the decision was viewpoint-based censorship and the claim that defendants acted
in an arbitrary manner and exercised unbridled discretion. Children First Foundation, 2007 WL
4344915, at *7. Plaintiff's claims directly implicate various aspects of the OGS Defendants'
deliberative process, including the procedures under which applications were reviewed and
approved or denied, the standards, if any, applied in the review of applications, the actual reasons

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November 6,2014
Hon. Randolph F. Treece
1:13-cv-01053 / MAD-RFT
Page 7
motivating the application denial, and by whom application decisions were made. Here, as in
Children First Foundation, the deliberative process is "the fulcrum of this litigation." Id

We look forward to the Court's resolution of these issues.

Y,

bmitted,

I~

George F. Carpinello

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All counsel of record