“[R]equiring each agency and thousands of officials to institute a litigation hold every time a party contemplates or even commences litigation against another agency would paralyze the State.”

Wandering Dago, Inc. v. N.Y. State Office of Gen. Servs., No. 1:13-CV-1053 (MAD/RFT), 2015 WL 3453321 (N.D.N.Y. May 29, 2015)

In this case, the court addressed “whether officials in one governmental agency and their Attorney can be sanctioned for the destruction of email(s), belonging to yet another governmental agency, via the New York State’s Email Retention Policy. Essentially, would such an occurrence constitute spoliation of evidence, and, if so, are sanctions warranted?” The court found the answer was “no.”

Plaintiff brought suit alleging constitutional violations after its food truck was excluded from the Saratoga Race Course and its applications to participate in an outdoor lunch program were denied based on its offensive name. Plaintiff’s exclusion from the race track occurred after complaints were received, including an email from the Deputy Secretary of Gaming and Racing to the President of the New York Racing Authority (“NYRA”) warning of the potential fall out from allowing the truck to remain on the premises. After the media reported that “an unidentified state official” was among the complainants, the Deputy Secretary emailed the Governor’s Executive Chamber identifying himself as that official; he later indicated that he may be a witness in the lawsuit. His identity as the unidentified state official was eventually acknowledged in court. The Deputy Secretary was never named as a defendant and the NYRA eventually settled. The remaining defendants were employees of the Office of General Services (“OGS”), which had denied Plaintiff’s applications for the outdoor lunch program.

In the course of discovery, Plaintiff sought production of the non-party Deputy Secretary’s emails and was informed that they had been automatically deleted pursuant to New York State’s Email Retention Policy. Plaintiff thereafter sought an adverse inference against the remaining OGS defendants and their litigation counsel—an Assistant Attorney General —for the loss of the non-party’s emails. “The underlying premise of the Plaintiff’s position [was] that the State of New York, as represented by the Attorney General’s Office, was on notice that [the] emails would be relevant to this litigation . . .” In response, Defendants and their counsel argued, among other things, that they had no control over the at-issue emails and that the Assistant Attorney General did not represent the non-party at the time of the loss and thus had no authority to direct preservation.

Turning first to the question of the duty to preserve, the court found that neither the defendants nor their counsel had control over the Deputy Secretary’s emails and thus, had no duty to preserve them. In support of its conclusion, the court found that “state agencies for most purposes are separate and distinct organs and should not be viewed in the aggregate” and hypothesized that the opposite conclusion would mean that any lawsuit against a state agency would “subject all twenty-two agencies, the legislature, the judiciary, quasi-state agencies, and possibly public authorities to disclosure scrutiny, not withstanding their relative remoteness to the issue of the case.” The court further observed that “requiring each agency and thousands of officials to institute a litigation hold every time a party contemplates or even commences litigation against another agency would paralyze the State.”

Addressing the duty of counsel specifically, the court reasoned that “until the Attorney General has been officially notified by either a state employee or an agency that an action has been commenced against he/she/it, he has no active litigation role.”

Addressing the remaining s elements of culpability and relevance, the court concluded that Plaintiff had failed to establish both. Specifically regarding the question of a “culpable state of mind,” the court noted that the emails were “administratively deleted” and the lack of proof of bad faith or that the loss was deliberate. The court also found that absent a duty to preserve, there was no breach and thus, no negligence.

Plaintiff’s request for an adverse inference was denied.

A full copy of the opinion is available here.

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