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Court Rules that State Agency is Not Responsible for Emails Deleted via the Retention Policy of Another State Agency: eDiscovery Case Law

In Wandering Dago, Inc. v. N.Y. State Office of Gen. Servs., No. 1:13-CV-1053 (MAD/RFT), (N.D.N.Y. May 29, 2015), New York Magistrate Judge Randolph F. Treece denied the plaintiff’s request for sanctions, stating that “that neither the individual Defendants nor their Attorney had a duty to preserve” the emails of the Deputy Secretary of Gaming and Racing to the President of the New York Racing Authority (“NYRA”).

Case Background

In this First Amendment case where the plaintiff contended that a set of NYRA Defendants and another set of state actors violated the First (Free Speech Clause) and Fourteenth (Equal Protection Clause) Amendments of the United States Constitution for denying its food trucks to provide services at the Saratoga Race Course and an outdoor lunch program based on the plaintiff company’s name.  The plaintiff’s exclusion from the race track occurred after several complaints were received, including an email from the Deputy Secretary at the NYRA, concerned that “the fallout from authorizing this truck will inevitably land on NYRA”.

After the media reported that “an unidentified state official” complained, the Deputy Secretary emailed the Governor’s Executive Chamber identifying himself as that official and he was eventually identified in court as that “unidentified state official”. However, the NYRA eventually settled and the Deputy Secretary was never named as a defendant, leaving the employees of the Office of General Services (“OGS”), who had denied the plaintiff’s applications for the outdoor lunch program, as the remaining defendants.

During discovery, the plaintiff requested production of the non-party Deputy Secretary’s emails, but they had been automatically destroyed pursuant to New York State’s Email Retention Policy. As a result, the plaintiff thereafter sought an adverse inference (as well as further discovery, costs and attorneys’ fees) against the remaining OGS defendants and their litigation counsel – an Assistant Attorney General – for the deletion of the Deputy Secretary’s emails.  The defendants objected, citing that they had no control over the Deputy Secretary’s emails and litigation counsel did not represent the nonparty Deputy Secretary at the time of the automatic deletions and had no legal authority to direct a preservation hold.

Judge’s Ruling

Judge Treece, agreeing with the defendants, stated that “the individual Defendants correctly assert that they have no control over {the Deputy Secretary’s} emails, the Executive Chamber’s emails, or over other emails pertaining to NYRA. Instead, when litigation was commenced against them, they and their agency, OGS, met their obligation by preserving those documents that were within their control and possession, and ultimately disclosed 1000 pages of documents relevant to the Empire Plaza Summer Program, including emails.”

Continuing, Judge Treece stated that the “Plaintiff suffers under the erroneous notion that when a governmental agency and its officials are defendants in any litigation, they and their counsel are required to preserve and produce documents belonging to another governmental agency.”  He also stated that “[c]onsidering that hundreds of lawsuits are filed daily against New York State,” 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.”  Finding that the plaintiff had also failed to prove a culpable state of mind and also failed to prove that the missing evidence would have been favorable to it, Judge Treece found that the plaintiff had failed to meet its burden and denied its request for sanctions, as well as its request for additional discovery and costs and attorney fees.

So, what do you think?  Should each state agency have its own separate duty to preserve or should the entire state be responsible to preserve data?  Please share any comments you might have or if you’d like to know more about a particular topic.

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