The legal war of words over deleted emails in the Wandering Dago lawsuit against the state continued this week as attorneys for the food truck owners contended the state knew the emails had become important “and took absolutely no steps to preserve them.”
The truck owners’ filing Monday follows a filing last week by attorneys for the state Office of General Services in which they contended they had no control over the emails in question.
The Schenectady-based food truck owners are seeking sanctions against the state in their ongoing federal First Amendment lawsuit over their treatment at the Saratoga Race Course and Empire State Plaza in 2013. The owners contend they were improperly prevented from doing business at both sites.
The dispute centers around the food truck’s name — many consider “dago” an ethnic slur against Italians. The truck’s owners, Andrea Loguidice and Brandon Snooks, have contended it is not intended to be offensive.
The state emails have become a focus in the case, as the truck owners have contended the state let them be deleted, rather than protect them as the 90-day purge window approached.
In a filing last month, food truck attorney George Carpinello cited a Feb. 6 deposition from the governor’s top racing adviser, Bennett Liebman, as well as documents produced by others that indicate emails were improperly destroyed. Carpinello called for court sanctions against the defendants in the case.
The state’s response last week, however, emphasized Liebman is not a party to the suit and had no obligation to maintain his emails. It also notes he did not intend to delete the emails; they were purged automatically. Also, the state contends, the truck owners can’t establish that the lost emails are relevant to the remaining claims.
The only emails Liebman testified about were related to the New York Racing Association. The truck owners settled in January for $68,500 with NYRA, which made no admission of no wrongdoing.
“[The remaining defendants] cannot be sanctioned for the actions of a nonparty over which they had no control and for the destruction of evidence that they had no duty to preserve,” Assistant Attorney General Colleen Galligan wrote.
In a response Monday, Carpinello argued that the state Attorney General’s Office did have control over the emails and should have moved to preserve them.
He noted the relevance of the emails was brought up at a preliminary hearing held within the 90-day deletion period, when one email was produced in court.
Carpinello wrote in his response last week that the deleted emails would have been crucial to them proving “a coordinated campaign by certain high-level State officials to effectively bar Wandering Dago from operating on any State property.
“But the very evidence Wandering Dago needs to prove this theory — communications about Wandering Dago between high-level State officials — has been made unavailable by the failure to preserve relevant emails,” he wrote.
Carpinello is seeking permission to conduct wider questioning to determine the scope of document destruction, monetary sanctions to cover the cost of the further investigation and a statement to the trial jury that they can draw a negative inference against the defendants for destruction of the documents.
A conference in the case is scheduled today.