Preview
FILED: SUFFOLK COUNTY CLERK 10/21/2019 12:06 AM INDEX NO. 063193/2013
NYSCEF DOC. NO. 351 RECEIVED NYSCEF: 10/21/2019
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF SUFFOLK
---------- --------------------------x
ALBERT PEREZ, individually and derivatively :
on behalf of TOTAL COMPUTER SOFTWARE, LLC, : Index No.: 063193/2013
:
Plaintiff, :
-against- :
VINCENT TEDESCO, TOTAL COMPUTER :
SYSTEMS, LTD. d/b/a TOTAL COMPUTER :
GROUP, TOTAL COMPUTER GROUP, LLC, :
TOTAL COMPUTERS, LTD. And JOHN DOE :
CORPORATION, :
:
Defendants and :
:
TOTAL COMPUTER SOFTWARE, LLC, :
:
Nominal-Defendant. :
--------------x
TOTAL COMPUTER SOFTWARE, LLC, :
: Index No.: 792083/2018
Third-Party Plaintiff, :
:
-against- :
ALBERT PEREZ, :
:
Third-Party Defendant. :
----- ---- ----- ---------x
DEFENDANTS VINCENT TEDESCO,
TOTAL COMPUTER SYSTEMS, LTD. D/B/A TOTAL COMPUTER GROUP,
TOTAL COMPUTER GROUP, LLC, TOTAL COMPUTERS, LTD.
AND TOTAL COMPUTER SOFTWARE, LLC'S
RESPONSE TO PLAINTIFF'S SPOLIATION INVENTORY
Of Counsel: Aaron Zerykier
FILED: SUFFOLK COUNTY CLERK 10/21/2019 12:06 AM INDEX NO. 063193/2013
NYSCEF DOC. NO. 351 RECEIVED NYSCEF: 10/21/2019
Item h "Defendants original email server and all original email server data . .. along with the
permanently deleted emails of every one of its users contained in the original sever's deleted
'dumpster'."
email
Not Spoliated:
A forged email server was not presented by the Total Parties.
Parties'
All of the emails from the Total email server ("Server") were migrated to a new email
server ("New Server") because the Server suffered significant problems due to the age of the
hardware (Affidavit of Paul Nevola, sworn to December 7, 2018 (the "Nevola Aff.") ¶ 15). This
migration occurred at the database level, which is standard industry practice (Nevola Aff. ¶ 16),
and guaranteed the transfer of all email from the Server to the New Server, with the exception of
emails the New Server identifies as corrupt (id.). This means that every single mailbox and email
(including items in the deleted email folders) were migrated to the New Server (id.).
Because Plaintiff has no evidence that emails were not produced, he instead argues a hypothetical
- that metadata that have been in the Server is no longer available. This lost
may potentially
metadata is not relevant because Plaintiff's expert acknowledges he collected successfully a 184
gigabyte exchange (email) database and separate individual mailboxes totaling 159 gigabytes
(Affidavit of Yalkin Demirkaya, sworn to October 27, 2018 (the "Demirkaya Moving Aff.") ¶ 70),
but refused to continue the process required to review the emails (Nevola Aff. ¶ 17; Affidavit of
Michael Graziano sworn to December 7, 2018 (the "Graziano Aff.") ¶¶ 54-55). And so, Plaintiff
has not shown that any relevant material has been spoliated.
"deleted"
Plaintiff's claims that significant amounts of emails were lost is similarly without
support, because Plaintiff's expert refused to process and search the 159 gigabytes of emails
collected, which included deleted email folders (Nevola Aff. ¶ 17; Graziano Aff. ¶¶ 54-55).
Critically, Plaintiff's citations to the Record do not support his claims with regard to Item 1
(compare - on page 2 of Plaintiff's with Demirkaya Aff. 70-76 and
(1) (7) Inventory Moving ¶¶
¶¶30-36).1
Affidavit of Yalkin Demirkaya, sworn to January 4, 2019 (the "Demirkaya Reply Aff.)
Nowhere in the citations listed by Plaintiff does Plaintiff argue that the allegedly missing metadata
was necessary for the purposes now listed on page 2 of Plaintiff's Inventory (other than the
"dumpster"
speculative argument that items may have existed in a file which are no longer
available).
I The affidavit of Plaintiff's
counsel is neithercompetent of spoliation (as counsel is an
evidence not ediscovery
expert),nor does the affidavitsupport contentions.
Plaintiff's
Because Plaintiff'sInventory isrifewith inaccurateand/or misleading citations,forease of reference,included with
Parties'
the Total Inventor is a bindercontaining thespecific pages/references cited inthe respectiveInventories by
each of Plaintiff
and the Total Parties.
FILED: SUFFOLK COUNTY CLERK 10/21/2019 12:06 AM INDEX NO. 063193/2013
NYSCEF DOC. NO. 351 RECEIVED NYSCEF: 10/21/2019
These Materials Are Not Relevant to Plaintiff's Remaining Claims:
The Court's July 12, 2018 decision after the Framed Issue Hearing (the "Decision") is resjudicata
on the issues Plaintiff alleges must be litigated. At bottom, Plaintiff's claims relate to the
management and operation of Software prior to the closing of the sale of Total Enforcement to
Tiburon ("Sale") and the use of the funds from the Sale. In the Decision Justice Garguilo held:
• "the unanimous consent document unambiguously established that Plaintiff ratified
Software...."
allactions taken by Tedesco as President of (Ex. H at 5);
contests"
• "Plaintiff had actual notice of allthe transactions he now (id.); and
• "Plaintiff was aware of, adopted, ratified and/or approved each of the transactions
attack"
he now seeks to (Ex. H at 9).
The Court resolved each of Plaintiff's claims regarding the operation of Software prior to the Sale.
Specifically, the Court's holdings are based upon Plaintiff signing a "written consent action of the
LLC."
members of Total Computer Software, And so, whether email metadata was, or was not
available is a non-issue.
Regarding distribution of the funds of the Sale, Justice Garguilo found that the "Court has satisfied
went'"
itself 'where the money (Decision at 10). Specifically:
"inflows"
in total, Software had (or cash coming into that
Company) in an amount of $8,375,620.61. Specifically, the
to/from"
Proceeds: i) paid software's intercompany "due account
owed to Total Computer Systems, Ltd., d/b/a Total Computer Group
"Group"); ii) satisfied loans to Software; iii)satisfied Software's
accounts payable obligations; and iv) paid for Software's ongoing
expenses, including professional fees incurred, and to be incurred,
as a result of Plaintiff's suit against Software
(id. at 8).
And yet, Plaintiff argues the allegedly spoliated email is relevant to his remaining claims, because
the emails may show inter alia that the Total Parties concealed information from Plaintiff;
instructed parties to destroy evidence; diverted Software's corporate opportunities; used Software
employees to perform work for Group and manufactured loan documents (Plaintiff's Inventory at
pg. 3). This argument isboth insincere and unsupported. Indeed, on page 2 of Plaintiff's Inventory
Plaintiff argues that the Total Parties "destroyed all of the material forensic evidence contained in
server..."
the metadata left behind in the original He does not argue that emails were destroyed.
In making this argument, Plaintiff confounds, perhaps intentionally, missing emails (which,
2
FILED: SUFFOLK COUNTY CLERK 10/21/2019 12:06 AM INDEX NO. 063193/2013
NYSCEF DOC. NO. 351 RECEIVED NYSCEF: 10/21/2019
Plaintiff has no proof of given his continued refusal to process and review the emails produced)
metadata.²
with claimed spoliated
A Hearing is Not Necessary:
Plaintiff's moving papers do not demonstrate the specific information that was spoliated or how
that unspecified, purportedly spoliated information is relevant to Plaintiff's case. Instead,
Plaintiff's papers argue - based on the speculation of his expert - that the Total Parties
moving
could have searched for and deleted emails before migrating them and therefore the emails
Parties'
produced may not be the all of the Total emails (Demirkaya Moving Aff. ¶¶ 73).
delete"
In response, the Total Parties submitted uncontroverted evidence that no such "search and
process occurred (Nevola Aff. ¶ 16). Plaintiff's expert did not dispute this fact (Demirkaya Reply
Aff. ¶¶ 30-36). And, although Plaintiff seeks to cure his unspecified grievances now, as stated
supra, Plaintiff's Record citations do not support his newly stated spoliation claims.
mind'
Plaintiff has not demonstrated that "'any evidence was destroyed with a culpable state of
and that the 'destroyed evidence was relevant to the party's claim or defense such that the trier of
defense"'
fact could find that the evidence would support that claim or (Goodwin v Guardian Life
Ins. Co. of Amer., 156 AD3d 765, 767 [2d Dept 2017] citing Pegasus Aviation I Inc. v Varig
Logistica, S.A., 26 NY3d 543, 547 [2015] [affirming denial of motion to strike pleading because
movant failed to meet itsburden of proofj). Thus, a hearing is not necessary.
2 Parties out of well emails on This is
Plaintiffclaims the Total only produced 200 over 7,000,000 the email server.
not accurate. The TotalParties produced over 159 gigabytes ofemails, but Plaintiffrefused tocooperate as required
by the Orders of Discovery Referee Sklar with the process necessary to review those emails.
3
FILED: SUFFOLK COUNTY CLERK 10/21/2019 12:06 AM INDEX NO. 063193/2013
NYSCEF DOC. NO. 351 RECEIVED NYSCEF: 10/21/2019
d::2:ses"
Item 2: "Defendants original email server
Not Spoliated:
As detailed above, the emails and the email databases were migrated to the New Server.
Plaintiff's expert acknowledges he was able to collect successfully a 184 gigabyte exchange
(email) database (Demirkaya Moving Aff. ¶ 70). Plaintiff does not explain how this issue is any
Parties'
different than his Issue Number 1. Therefore, the Total arguments, as set forth above in
response to Issue Number 1 are fully incorporate herein by reference.
These Materials Are Not Ré|éväñt to Plaintiff's Remaining Claims:
As set forth above, these materials are not relevant to Plaintiff's remaining claims.
A Hearing is Not Necessary:
A hearing is not necessary because no spoliation has been demonstrated and no relevant materials
have been spoliated.
4
FILED: SUFFOLK COUNTY CLERK 10/21/2019 12:06 AM INDEX NO. 063193/2013
NYSCEF DOC. NO. 351 RECEIVED NYSCEF: 10/21/2019
Item 3: "Spyware data collected by defendants during 2016 surveillance of Plaintifs use of
production"
defendant's Court ordered Cloud hosted
Not Spoliated:
Spoliation only applies to the destruction of relevant evidence (see supra, Point I). The video
Parties'
recordings showing Plaintiff utilizing the Total computer system are not relevant to
Defendants'
Plaintiff's claims or defenses.
These Materials Are Not Relevant to Plaintifs Remaining Claims:
The Plixo recordings post-date the litigation. And so, they are not relevant to Plaintiff's claims.
Moreover, Plaintiff has not demonstrated any prejudice attributable to the Plixo software existing
Parties'
for a limited number of days on the Total computer system. As explained by Mr. Tedesco,
Parties'
"Plixo was installed for one purpose: to monitor the integrity of the Total cloud production
and computer systems necessitated by Plaintiff's documented history of misusing the Total Parties
resources.... (Affidavit of Vincent Tedesco, sworn to January 28, 2019 (the "Tedesco Aff.") ¶ 9).
Indeed, the Record demonstrates the Total Parties never received an unfair advantage, and Plaintiff
never suffered any demonstrable harm because of the installation of the Plixo software: the few
minutes of the recordings viewed showed only a limited number of searches being performed in
one of the accounting systems; no notes were taken of what was seen (Tedesco Aff. ¶ 11); and no
Parties'
information from the Plixo recordings were shared with the Total attorneys (id.;
Affirmation of Jessica Supernaw, dated November 29, 2018 at ¶¶ 7-8).
A Hearing is Not Necessary:
This issue was not raised in Plaintiff s motion papers. As such itis not properly before the Court.
5
FILED: SUFFOLK COUNTY CLERK 10/21/2019 12:06 AM INDEX NO. 063193/2013
NYSCEF DOC. NO. 351 RECEIVED NYSCEF: 10/21/2019
- 2012)"
Item 4: "Lisa Guerin, EVP and Director of Operations deleted emails (post June
Not Spoliated:
Spoliation applies to the destruction of relevant evidence - there is no blanket presumption
only
of relevancy as claimed by Plaintiff. Ms. Guerin's deposition testimony demonstrates she deleted
emails contemporaneously with completing the tasks identified in the email and also when she
Parties'
received spam emails (Total Exhibit KK 124:25-125:11). Specifically, Geurin testified:
"[i]f I get an email and I take care of itI delete it. If Iget an e-mail from someone I don't
it"
recognize, I delete. If I get an e-mail that is spam, I delete (id. at 124:25-125:5) and
"[i]f I get a request or something or whatever and it's done and I don't need to keep that, I
it"
delete
(id.at 125:9-11). Ms. Guerin made clear that her long standing practice was to delete emails that
she does not need to be saved (id.at 129:15-17).
Plaintiff failed to cite this relevant testimony in his moving papers. Rather, he summarily claims,
without any context or explanation, that Ms. Guerin deleted emails after June 2012. This is true.
Plaintiff has not - and cannot - show that emails relevant to his claims existed in
However, any
June 2012 but no longer exist because of Ms. Guerin deleted them. Stated differently, there is no
evidence - testimonial or otherwise - that Ms. Guerin deleted emails after June 2012 which
any
she previously decided needed to be saved.
These Materials Are Irrelevant to Plaintiff's Remaiñiñg Claims:
Plaintiff argues Ms. Guerin's emails "are likely top (sic.) be highly relevant to Plaintiffs (sic.)
others"
unjust enrichment and breach of fiduciary duty causes of action as well as (Plaintiff's
Inventory at 6). However, as set forth in the Decision and supra at Item 1, the factual predicate
for those claims has been resolved (see supra Item 1).
A Hearing is Not Necessary:
A hearing is not necessary because no spoliation has been demonstrated and no relevant materials
have been spoliated.
6
FILED: SUFFOLK COUNTY CLERK 10/21/2019 12:06 AM INDEX NO. 063193/2013
NYSCEF DOC. NO. 351 RECEIVED NYSCEF: 10/21/2019
TCGSP1"
Item 5: "All ConnectWise document servers: J-Drive, Server TCGFS1, Server
All Relevant Materials Have Been Disclosed:
All relevant content from the ConnectWise system has been disclosed. This was clear from
Plantiff's submission of records from the ConnectWise system during the framed issue hearing.
"TCGFS1"
The Record citations in Plaintiff's Inventory do not support Plaintiff s position that or
"TCGSP1" orders"
contain "quotes, cost analysis, contracts [and] purchase (Plaintiff's Inventory
at 7).
"'J'
And, as Mr. Nevolla explained, the drive does not contain time records as Plaintiff originally
'J' -
argued. Rather, the drive is a library of resources such as client passwords and network
architecture" Parties'
(Nevolla Aff. ¶ 56 and Total Exhibit EE). Rather than address this fact, in
"J"
reply Plaintiff hypothesized the drive may contain records related to Software transactions
"J"
because of ten (10) files that Plaintiff indicates reside on the drive and should have been
produced (Plaintiff Reply Exhibit C). Plaintiff s inability to list more than ten (10) files
"J"
demonstrates that little,if any, relevant materials may be contained on the drive.
These Materials Are Irrelevant to Plaintiff's Remaining Claims:
"J"
Plaintiff argues that access to the drive is necessary to determine whether defendants
plaintiffs"
"manipulated or deleted contract records before or after execution by (sic.) (Plaintiff
Inventory at 7). Plaintiff further argues that "if the metadata embedded in the native format
contract documents reveals they were modified after plaintiff signed them and before plaintiff's
execution of the unanimous shareholders consent agreement said shareholder agreement was
(sic.)"
fraudulently induced and, therefore nullity (id.).
Prior to the most recent submissions, Plaintiff did not argue in the spoliation motion that he was
document."
fraudulently induced into signing the "unanimous consent
Plaintiff's new, and desperate argument that he was somehow fraudulently induced into signing
the unanimous consent is belied by his testimony at the Framed Issue Hearing wherein he admitted
document"
he did not see the "unanimous consent before signing itand was only presented with
331:14-18).3
the signature page (Framed Issue Hearing Testimony at 4/28/17
Thus, these materials are irrelevant in light of the Plaintiff's testimony at, and the Court's Decision
after the Framed Issue hearing (see supra Item I).
A Hearing Is Not Necessary:
A hearing is not necessary because allrelevant materials have been produced to Plaintiff. Plaintiff
has not demonstrated otherwise.
3 While excerpt isnot part ofthe on the Total to
thistranscript Record spoliation motion, the Partiesfeltitnecessary
submit the excerpt because itcontradicts Plaintiff'sfraudulent inducement argument raised for the firsttime in
Inventory.
Plaintiff's
7
FILED: SUFFOLK COUNTY CLERK 10/21/2019 12:06 AM INDEX NO. 063193/2013
NYSCEF DOC. NO. 351 RECEIVED NYSCEF: 10/21/2019
metadata"
Item 6: "Old Great Plains Accounting System data and
Not Spoliated:
In an effort to comply with the July 25, 2016 Order, which required the Old Great Plains ("Old
GP") be made available to Plaintiff via the cloud, the Total Parties retained a third-party computer
consultant for the Great Plains system (MicroForce) to re-install the client/front-end (user
interface) for the Old GP system (Nevolla Aff. ¶ 25). Reinstallation of the user interface was
necessary because the Old GP server no longer ran the software application; it only housed the
database (id.). And so, Plaintiff is incorrect when he claims that "Defendants reinstalled the
purpose..."
accounting system on this server for no legitimate (Plaintiff's Inventory at 8).
The actual database - which contains the information on the system - was unchanged (id.at 26).
¶
Indeed, the creation date for each database is well before the start of this litigation (id., Total
Parties'
Ex. W [a screen shot showing the database creation dates]). Thus, changes to the setup
fileand user activity fileare irrelevant.
The fact that the Old GP records are permanent and cannot be chaged is "confirmed by the manual
for the Old GP software which clearly states that 'posting [in GP] makes the transactions you've
entered part of your company's permanent records. Until they're posted, transactions can be
changed or deleted. Once they've posted, they cannot be changed in any way, though you can enter
errors.'" Parties'
correcting transactions to correct (Nevolla Aff. ¶ 26; Total Ex. X [relevant pages
from the Old GP manual]).
"evidence"
Plaintiff's cited that relevant data was spoliated is not reliable. For example, Plaintiff's
8"4
computer expert placed before the Court "Exhibit to his Reply Affirmation (Demirkaya Reply
description"
Aff. ¶¶ 45-46). That exhibit, however, is suspect because (i) the "file column
accompanying Exhibit 8 (albeit only for certain line entries) is not part of the database, but a field
created and populated by Demirkaya; and (ii) Exhibit 8 does not reflect all of the information
contained in the file Demirkaya claimed to have extracted (Graziano Reply Aff. ¶ 12). Indeed,
Demirkaya does not provide any explanation of why Exhibit 8 purportedly supports his
conclusions in paragraph 45 and 46 of his reply affidavit.
Similarly, Exhibit 9 to the Demirkaya reply affidavit is unrealiable as Demirkaya claims Exhibit 9
table" "users"
reflects a copy of the "users for the Old GP system. However, one of the identified
therein has a creation date of November 2017 - fourteen months after Demirkaya
19, forensically
imaged the Old GP system in September 2016 (Demirkaya Reply Aff. Ex. 9; Graziano Aff. ¶ 13).
These Materials Are Irrelevant to Plaintiff's Remaining Claims:
Plaintiff has received all of the Old GP data. The reinstallation of the user interface does not
change this fact and Plaintiff has not demonstrated otherwise. Moreover, these materials are not
4
Although Item 6 toPlaintiff's Inventory does not citeto Demirkaya Reply Exhibit 8 or 9,Plaintiffcitesparagraphs
43-48 of the Demirkaya Jan. Aff.,which claims these Exhibits 8 and 9 support his testimony. And so, we address
here, aswe did inour sur-reply papers,these inherently unreliableexhibits.
8
FILED: SUFFOLK COUNTY CLERK 10/21/2019 12:06 AM INDEX NO. 063193/2013
NYSCEF DOC. NO. 351 RECEIVED NYSCEF: 10/21/2019
relevant given Plaintiff's testimony at the Framed Issue hearing and the Court's Decision (see
supra Item I).
A Hearing Is Not Necessary:
A hearing is not necessary because allrelevant materials have been produced to Plaintiff. Plaintiff
has not demonstrated otherwise.
9
FILED: SUFFOLK COUNTY CLERK 10/21/2019 12:06 AM INDEX NO. 063193/2013
NYSCEF DOC. NO. 351 RECEIVED NYSCEF: 10/21/2019
file"
Item 7: "New Great Plains Accüüñtiñg System :::ctadata and disordered VMware log
Not Spoliated:
Plaintiff's sole basis for claiming that the New Great Plains metadata is spoliated is based an
overlap of the date of the log files. This does not indicate that the material was spoliated. Rather,
Parties'
on May 16, 2016, the Total server crashed (Nevola Aff. ¶ 35), requiring a reboot of, and
a VM license server reconfiguration (id.).
Parties'
Plaintiff's Inventory incorrectly states this issue was addressed by the Total "counsel's
."
inexpert and inadmissible speculation as to what . . occurred (Plaintiff's Inventory at 9).
However, Mr. Nevola's affidavit provides a clear and accurate explanation that is neither
speculation" "inexpert."
"inadmissible nor
These Materials Are Not Relevant to Plaintiff's Claims:
Plaintiff's submissions do not demonstrate how the overlap of VM log files is indicative of
information being spoliated; and do not demonstrate how any purportedly spoliated information is
relevant to his claims. And, the citations provided in his Spoliation Inventory do not cure these
failures.
presumed"
Instead, Plaintiff argues "[t]he relevance of such destroyed ESI must be (Plaintiff's
Inventory at 9). Plaintiff is mistaken. Indeed, where the destruction of ESI has not been
established (see supra Item I),no such presumption is triggered.
No Hearing is Necessary:
A hearing is not necessary because no spoliation has been demonstrated and no relevant materials
have been spoliated
10
FILED: SUFFOLK COUNTY CLERK 10/21/2019 12:06 AM INDEX NO. 063193/2013
NYSCEF DOC. NO. 351 RECEIVED NYSCEF: 10/21/2019
..."
Item 8 "ConnectWise. Record tampering.
Not Spoliated:
Plaintiff has not demonstrated that any evidence has been spoliated. Rather, based upon the date
Updated"
recorded for certain ConnectWise records in the "Last field, Plaintiff makes the illogical
leap that spoliation occurred (Plaintiff's Inventory at p. 10).
As explained by Craig Fulton, the Chief Product Officer of ConnectWise, the date listed in the
Updated"
"Last field does not indicate that the record has been modified or altered (Affidavit of
Craig Fulton, sworn to December 7, 2018 (the "Fulton Aff.") at ¶ 9). In addition, ConnectWise
Updated"
investigated the anomaly of "Last dates pre-dating users existing in ConnectWise (id.at
13). While ConnectWise was unable to explain the discrepancy it reported that it may be
"bug" Updated"
attributable to a as several updates to the "Last field have been necessary since
Updated"
2005 (id.at 14). Thus, the "Last field the basis for Plaintiff's claim of spoliation, cannot
be relied on for Plaintiff's conclusion that ConnectWise records have been changed.
trial"
Mr. Fulton further explained that a review of the ConnectWise "audit is the proper way to
determine whether a record has been modified (Fulton Aff. at¶¶ 10-12). Plaintiff's experts failed
trial"
to indicate whether they reviewed the "audit in reaching their conclusions. And, the Record
stomping"
citation in Item 8 of Plaintiff's Inventory does not address "time or the majority of the
other allegation made in Item 8 of Plaintiff's Inventory.
These Materials Are Not Relevant to Plaintiff's Claims:
Although Plaintiff admits "itis impossible to know, comprehensively, [the] relevance to each of
action"
plaintiff's causes of (Plaintiff's Inventory at 11), Plaintiff argues these records may show
"the theft of Software's corporate opportunities by Group, Group's use of Software's employees
to perform the work generated by those stolen corporate opportunities and the extent to which this
occurred"
(id.).
These arguments are unavailing in light of the Court's Decision (see supra Item I), wherein the
contests"
Court held "Plaintiff had actual notice of all the transactions he now (id.);and "Plaintiff
attack"
was aware of, adopted, ratified and/or approved each of the transactions he now seeks to
(id.).
No Hearing is Necessary:
A hearing is not necessary because no spoliation has been demonstrated and no relevant materials
have been spoliated. Plaintiff has not provided any evidence supporting his theory that the "Last
Updated"
date can be relied upon to demonstrate that records were spoliated.
11
FILED: SUFFOLK COUNTY CLERK 10/21/2019 12:06 AM INDEX NO. 063193/2013
NYSCEF DOC. NO. 351 RECEIVED NYSCEF: 10/21/2019
..."
Item 9 "ConnectWise. Cassane deletion of ConnectWise user accounts
Not Spoliated:
Plaintiff has not demonstrated that any evidence has been spoliated. Instead, Plaintiff concludes
spoliation occurred based testimony of Mr. Cassano regarding deactivated/deleted un-used user
accounts (Plaintiff's Inventory at 12). Plaintiff's conclusion, however, is not supported by the
Record because Mr. Cassano's testimony has never been submitted. And, Plaintiff's citation to his
attorney's affidavit is unavailing because that affidavit does not include the excerpts from Mr.
Cassano's testimony (see Plaintiff's Inventory at 12 citing Plaintiff's Counsel's moving affidavit
at ¶¶ 20-21).
However, Mr. Cassano's testimony was clear: removing un-used accounts from the system did
not delete from the system information related to the accounts. This fact was confirmed by Mr.
Peterson from ConnectWise who stated, "[t]he deactivation/deletion of a particular user does not
delete the historical data previously imputed and/or associated with a user. For example, the
history regarding the deactivated/deleted user in time records, service tickets and project tickets
unchanged"
remains preserved and (Peterson Aff. ¶ 17). Indeed, Mr. Peterson stated that "itis
'user'
recommended by CW that when an employee leaves a company that the is
employee"
deactivated/deleted to free up the seat license for assignment to another (Peterson Aff.
¶ 16).
Thus, Plaintiff's claim of spoliation is unsupported by the Record (the alleged testimony of Mr.
Cassano is not in the Record) and Mr. Peterson explained that even if Mr. Cassano removed user
Preview
FILED: SUFFOLK COUNTY CLERK 10/21/2019 12:06 AM INDEX NO. 063193/2013 NYSCEF DOC. NO. 351 RECEIVED NYSCEF: 10/21/2019 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF SUFFOLK ---------- --------------------------x ALBERT PEREZ, individually and derivatively : on behalf of TOTAL COMPUTER SOFTWARE, LLC, : Index No.: 063193/2013 : Plaintiff, : -against- : VINCENT TEDESCO, TOTAL COMPUTER : SYSTEMS, LTD. d/b/a TOTAL COMPUTER : GROUP, TOTAL COMPUTER GROUP, LLC, : TOTAL COMPUTERS, LTD. And JOHN DOE : CORPORATION, : : Defendants and : : TOTAL COMPUTER SOFTWARE, LLC, : : Nominal-Defendant. : --------------x TOTAL COMPUTER SOFTWARE, LLC, : : Index No.: 792083/2018 Third-Party Plaintiff, : : -against- : ALBERT PEREZ, : : Third-Party Defendant. : ----- ---- ----- ---------x DEFENDANTS VINCENT TEDESCO, TOTAL COMPUTER SYSTEMS, LTD. D/B/A TOTAL COMPUTER GROUP, TOTAL COMPUTER GROUP, LLC, TOTAL COMPUTERS, LTD. AND TOTAL COMPUTER SOFTWARE, LLC'S RESPONSE TO PLAINTIFF'S SPOLIATION INVENTORY Of Counsel: Aaron Zerykier FILED: SUFFOLK COUNTY CLERK 10/21/2019 12:06 AM INDEX NO. 063193/2013 NYSCEF DOC. NO. 351 RECEIVED NYSCEF: 10/21/2019 Item h "Defendants original email server and all original email server data . .. along with the permanently deleted emails of every one of its users contained in the original sever's deleted 'dumpster'." email Not Spoliated: A forged email server was not presented by the Total Parties. Parties' All of the emails from the Total email server ("Server") were migrated to a new email server ("New Server") because the Server suffered significant problems due to the age of the hardware (Affidavit of Paul Nevola, sworn to December 7, 2018 (the "Nevola Aff.") ¶ 15). This migration occurred at the database level, which is standard industry practice (Nevola Aff. ¶ 16), and guaranteed the transfer of all email from the Server to the New Server, with the exception of emails the New Server identifies as corrupt (id.). This means that every single mailbox and email (including items in the deleted email folders) were migrated to the New Server (id.). Because Plaintiff has no evidence that emails were not produced, he instead argues a hypothetical - that metadata that have been in the Server is no longer available. This lost may potentially metadata is not relevant because Plaintiff's expert acknowledges he collected successfully a 184 gigabyte exchange (email) database and separate individual mailboxes totaling 159 gigabytes (Affidavit of Yalkin Demirkaya, sworn to October 27, 2018 (the "Demirkaya Moving Aff.") ¶ 70), but refused to continue the process required to review the emails (Nevola Aff. ¶ 17; Affidavit of Michael Graziano sworn to December 7, 2018 (the "Graziano Aff.") ¶¶ 54-55). And so, Plaintiff has not shown that any relevant material has been spoliated. "deleted" Plaintiff's claims that significant amounts of emails were lost is similarly without support, because Plaintiff's expert refused to process and search the 159 gigabytes of emails collected, which included deleted email folders (Nevola Aff. ¶ 17; Graziano Aff. ¶¶ 54-55). Critically, Plaintiff's citations to the Record do not support his claims with regard to Item 1 (compare - on page 2 of Plaintiff's with Demirkaya Aff. 70-76 and (1) (7) Inventory Moving ¶¶ ¶¶30-36).1 Affidavit of Yalkin Demirkaya, sworn to January 4, 2019 (the "Demirkaya Reply Aff.) Nowhere in the citations listed by Plaintiff does Plaintiff argue that the allegedly missing metadata was necessary for the purposes now listed on page 2 of Plaintiff's Inventory (other than the "dumpster" speculative argument that items may have existed in a file which are no longer available). I The affidavit of Plaintiff's counsel is neithercompetent of spoliation (as counsel is an evidence not ediscovery expert),nor does the affidavitsupport contentions. Plaintiff's Because Plaintiff'sInventory isrifewith inaccurateand/or misleading citations,forease of reference,included with Parties' the Total Inventor is a bindercontaining thespecific pages/references cited inthe respectiveInventories by each of Plaintiff and the Total Parties. FILED: SUFFOLK COUNTY CLERK 10/21/2019 12:06 AM INDEX NO. 063193/2013 NYSCEF DOC. NO. 351 RECEIVED NYSCEF: 10/21/2019 These Materials Are Not Relevant to Plaintiff's Remaining Claims: The Court's July 12, 2018 decision after the Framed Issue Hearing (the "Decision") is resjudicata on the issues Plaintiff alleges must be litigated. At bottom, Plaintiff's claims relate to the management and operation of Software prior to the closing of the sale of Total Enforcement to Tiburon ("Sale") and the use of the funds from the Sale. In the Decision Justice Garguilo held: • "the unanimous consent document unambiguously established that Plaintiff ratified Software...." allactions taken by Tedesco as President of (Ex. H at 5); contests" • "Plaintiff had actual notice of allthe transactions he now (id.); and • "Plaintiff was aware of, adopted, ratified and/or approved each of the transactions attack" he now seeks to (Ex. H at 9). The Court resolved each of Plaintiff's claims regarding the operation of Software prior to the Sale. Specifically, the Court's holdings are based upon Plaintiff signing a "written consent action of the LLC." members of Total Computer Software, And so, whether email metadata was, or was not available is a non-issue. Regarding distribution of the funds of the Sale, Justice Garguilo found that the "Court has satisfied went'" itself 'where the money (Decision at 10). Specifically: "inflows" in total, Software had (or cash coming into that Company) in an amount of $8,375,620.61. Specifically, the to/from" Proceeds: i) paid software's intercompany "due account owed to Total Computer Systems, Ltd., d/b/a Total Computer Group "Group"); ii) satisfied loans to Software; iii)satisfied Software's accounts payable obligations; and iv) paid for Software's ongoing expenses, including professional fees incurred, and to be incurred, as a result of Plaintiff's suit against Software (id. at 8). And yet, Plaintiff argues the allegedly spoliated email is relevant to his remaining claims, because the emails may show inter alia that the Total Parties concealed information from Plaintiff; instructed parties to destroy evidence; diverted Software's corporate opportunities; used Software employees to perform work for Group and manufactured loan documents (Plaintiff's Inventory at pg. 3). This argument isboth insincere and unsupported. Indeed, on page 2 of Plaintiff's Inventory Plaintiff argues that the Total Parties "destroyed all of the material forensic evidence contained in server..." the metadata left behind in the original He does not argue that emails were destroyed. In making this argument, Plaintiff confounds, perhaps intentionally, missing emails (which, 2 FILED: SUFFOLK COUNTY CLERK 10/21/2019 12:06 AM INDEX NO. 063193/2013 NYSCEF DOC. NO. 351 RECEIVED NYSCEF: 10/21/2019 Plaintiff has no proof of given his continued refusal to process and review the emails produced) metadata.² with claimed spoliated A Hearing is Not Necessary: Plaintiff's moving papers do not demonstrate the specific information that was spoliated or how that unspecified, purportedly spoliated information is relevant to Plaintiff's case. Instead, Plaintiff's papers argue - based on the speculation of his expert - that the Total Parties moving could have searched for and deleted emails before migrating them and therefore the emails Parties' produced may not be the all of the Total emails (Demirkaya Moving Aff. ¶¶ 73). delete" In response, the Total Parties submitted uncontroverted evidence that no such "search and process occurred (Nevola Aff. ¶ 16). Plaintiff's expert did not dispute this fact (Demirkaya Reply Aff. ¶¶ 30-36). And, although Plaintiff seeks to cure his unspecified grievances now, as stated supra, Plaintiff's Record citations do not support his newly stated spoliation claims. mind' Plaintiff has not demonstrated that "'any evidence was destroyed with a culpable state of and that the 'destroyed evidence was relevant to the party's claim or defense such that the trier of defense"' fact could find that the evidence would support that claim or (Goodwin v Guardian Life Ins. Co. of Amer., 156 AD3d 765, 767 [2d Dept 2017] citing Pegasus Aviation I Inc. v Varig Logistica, S.A., 26 NY3d 543, 547 [2015] [affirming denial of motion to strike pleading because movant failed to meet itsburden of proofj). Thus, a hearing is not necessary. 2 Parties out of well emails on This is Plaintiffclaims the Total only produced 200 over 7,000,000 the email server. not accurate. The TotalParties produced over 159 gigabytes ofemails, but Plaintiffrefused tocooperate as required by the Orders of Discovery Referee Sklar with the process necessary to review those emails. 3 FILED: SUFFOLK COUNTY CLERK 10/21/2019 12:06 AM INDEX NO. 063193/2013 NYSCEF DOC. NO. 351 RECEIVED NYSCEF: 10/21/2019 d::2:ses" Item 2: "Defendants original email server Not Spoliated: As detailed above, the emails and the email databases were migrated to the New Server. Plaintiff's expert acknowledges he was able to collect successfully a 184 gigabyte exchange (email) database (Demirkaya Moving Aff. ¶ 70). Plaintiff does not explain how this issue is any Parties' different than his Issue Number 1. Therefore, the Total arguments, as set forth above in response to Issue Number 1 are fully incorporate herein by reference. These Materials Are Not Ré|éväñt to Plaintiff's Remaining Claims: As set forth above, these materials are not relevant to Plaintiff's remaining claims. A Hearing is Not Necessary: A hearing is not necessary because no spoliation has been demonstrated and no relevant materials have been spoliated. 4 FILED: SUFFOLK COUNTY CLERK 10/21/2019 12:06 AM INDEX NO. 063193/2013 NYSCEF DOC. NO. 351 RECEIVED NYSCEF: 10/21/2019 Item 3: "Spyware data collected by defendants during 2016 surveillance of Plaintifs use of production" defendant's Court ordered Cloud hosted Not Spoliated: Spoliation only applies to the destruction of relevant evidence (see supra, Point I). The video Parties' recordings showing Plaintiff utilizing the Total computer system are not relevant to Defendants' Plaintiff's claims or defenses. These Materials Are Not Relevant to Plaintifs Remaining Claims: The Plixo recordings post-date the litigation. And so, they are not relevant to Plaintiff's claims. Moreover, Plaintiff has not demonstrated any prejudice attributable to the Plixo software existing Parties' for a limited number of days on the Total computer system. As explained by Mr. Tedesco, Parties' "Plixo was installed for one purpose: to monitor the integrity of the Total cloud production and computer systems necessitated by Plaintiff's documented history of misusing the Total Parties resources.... (Affidavit of Vincent Tedesco, sworn to January 28, 2019 (the "Tedesco Aff.") ¶ 9). Indeed, the Record demonstrates the Total Parties never received an unfair advantage, and Plaintiff never suffered any demonstrable harm because of the installation of the Plixo software: the few minutes of the recordings viewed showed only a limited number of searches being performed in one of the accounting systems; no notes were taken of what was seen (Tedesco Aff. ¶ 11); and no Parties' information from the Plixo recordings were shared with the Total attorneys (id.; Affirmation of Jessica Supernaw, dated November 29, 2018 at ¶¶ 7-8). A Hearing is Not Necessary: This issue was not raised in Plaintiff s motion papers. As such itis not properly before the Court. 5 FILED: SUFFOLK COUNTY CLERK 10/21/2019 12:06 AM INDEX NO. 063193/2013 NYSCEF DOC. NO. 351 RECEIVED NYSCEF: 10/21/2019 - 2012)" Item 4: "Lisa Guerin, EVP and Director of Operations deleted emails (post June Not Spoliated: Spoliation applies to the destruction of relevant evidence - there is no blanket presumption only of relevancy as claimed by Plaintiff. Ms. Guerin's deposition testimony demonstrates she deleted emails contemporaneously with completing the tasks identified in the email and also when she Parties' received spam emails (Total Exhibit KK 124:25-125:11). Specifically, Geurin testified: "[i]f I get an email and I take care of itI delete it. If Iget an e-mail from someone I don't it" recognize, I delete. If I get an e-mail that is spam, I delete (id. at 124:25-125:5) and "[i]f I get a request or something or whatever and it's done and I don't need to keep that, I it" delete (id.at 125:9-11). Ms. Guerin made clear that her long standing practice was to delete emails that she does not need to be saved (id.at 129:15-17). Plaintiff failed to cite this relevant testimony in his moving papers. Rather, he summarily claims, without any context or explanation, that Ms. Guerin deleted emails after June 2012. This is true. Plaintiff has not - and cannot - show that emails relevant to his claims existed in However, any June 2012 but no longer exist because of Ms. Guerin deleted them. Stated differently, there is no evidence - testimonial or otherwise - that Ms. Guerin deleted emails after June 2012 which any she previously decided needed to be saved. These Materials Are Irrelevant to Plaintiff's Remaiñiñg Claims: Plaintiff argues Ms. Guerin's emails "are likely top (sic.) be highly relevant to Plaintiffs (sic.) others" unjust enrichment and breach of fiduciary duty causes of action as well as (Plaintiff's Inventory at 6). However, as set forth in the Decision and supra at Item 1, the factual predicate for those claims has been resolved (see supra Item 1). A Hearing is Not Necessary: A hearing is not necessary because no spoliation has been demonstrated and no relevant materials have been spoliated. 6 FILED: SUFFOLK COUNTY CLERK 10/21/2019 12:06 AM INDEX NO. 063193/2013 NYSCEF DOC. NO. 351 RECEIVED NYSCEF: 10/21/2019 TCGSP1" Item 5: "All ConnectWise document servers: J-Drive, Server TCGFS1, Server All Relevant Materials Have Been Disclosed: All relevant content from the ConnectWise system has been disclosed. This was clear from Plantiff's submission of records from the ConnectWise system during the framed issue hearing. "TCGFS1" The Record citations in Plaintiff's Inventory do not support Plaintiff s position that or "TCGSP1" orders" contain "quotes, cost analysis, contracts [and] purchase (Plaintiff's Inventory at 7). "'J' And, as Mr. Nevolla explained, the drive does not contain time records as Plaintiff originally 'J' - argued. Rather, the drive is a library of resources such as client passwords and network architecture" Parties' (Nevolla Aff. ¶ 56 and Total Exhibit EE). Rather than address this fact, in "J" reply Plaintiff hypothesized the drive may contain records related to Software transactions "J" because of ten (10) files that Plaintiff indicates reside on the drive and should have been produced (Plaintiff Reply Exhibit C). Plaintiff s inability to list more than ten (10) files "J" demonstrates that little,if any, relevant materials may be contained on the drive. These Materials Are Irrelevant to Plaintiff's Remaining Claims: "J" Plaintiff argues that access to the drive is necessary to determine whether defendants plaintiffs" "manipulated or deleted contract records before or after execution by (sic.) (Plaintiff Inventory at 7). Plaintiff further argues that "if the metadata embedded in the native format contract documents reveals they were modified after plaintiff signed them and before plaintiff's execution of the unanimous shareholders consent agreement said shareholder agreement was (sic.)" fraudulently induced and, therefore nullity (id.). Prior to the most recent submissions, Plaintiff did not argue in the spoliation motion that he was document." fraudulently induced into signing the "unanimous consent Plaintiff's new, and desperate argument that he was somehow fraudulently induced into signing the unanimous consent is belied by his testimony at the Framed Issue Hearing wherein he admitted document" he did not see the "unanimous consent before signing itand was only presented with 331:14-18).3 the signature page (Framed Issue Hearing Testimony at 4/28/17 Thus, these materials are irrelevant in light of the Plaintiff's testimony at, and the Court's Decision after the Framed Issue hearing (see supra Item I). A Hearing Is Not Necessary: A hearing is not necessary because allrelevant materials have been produced to Plaintiff. Plaintiff has not demonstrated otherwise. 3 While excerpt isnot part ofthe on the Total to thistranscript Record spoliation motion, the Partiesfeltitnecessary submit the excerpt because itcontradicts Plaintiff'sfraudulent inducement argument raised for the firsttime in Inventory. Plaintiff's 7 FILED: SUFFOLK COUNTY CLERK 10/21/2019 12:06 AM INDEX NO. 063193/2013 NYSCEF DOC. NO. 351 RECEIVED NYSCEF: 10/21/2019 metadata" Item 6: "Old Great Plains Accounting System data and Not Spoliated: In an effort to comply with the July 25, 2016 Order, which required the Old Great Plains ("Old GP") be made available to Plaintiff via the cloud, the Total Parties retained a third-party computer consultant for the Great Plains system (MicroForce) to re-install the client/front-end (user interface) for the Old GP system (Nevolla Aff. ¶ 25). Reinstallation of the user interface was necessary because the Old GP server no longer ran the software application; it only housed the database (id.). And so, Plaintiff is incorrect when he claims that "Defendants reinstalled the purpose..." accounting system on this server for no legitimate (Plaintiff's Inventory at 8). The actual database - which contains the information on the system - was unchanged (id.at 26). ¶ Indeed, the creation date for each database is well before the start of this litigation (id., Total Parties' Ex. W [a screen shot showing the database creation dates]). Thus, changes to the setup fileand user activity fileare irrelevant. The fact that the Old GP records are permanent and cannot be chaged is "confirmed by the manual for the Old GP software which clearly states that 'posting [in GP] makes the transactions you've entered part of your company's permanent records. Until they're posted, transactions can be changed or deleted. Once they've posted, they cannot be changed in any way, though you can enter errors.'" Parties' correcting transactions to correct (Nevolla Aff. ¶ 26; Total Ex. X [relevant pages from the Old GP manual]). "evidence" Plaintiff's cited that relevant data was spoliated is not reliable. For example, Plaintiff's 8"4 computer expert placed before the Court "Exhibit to his Reply Affirmation (Demirkaya Reply description" Aff. ¶¶ 45-46). That exhibit, however, is suspect because (i) the "file column accompanying Exhibit 8 (albeit only for certain line entries) is not part of the database, but a field created and populated by Demirkaya; and (ii) Exhibit 8 does not reflect all of the information contained in the file Demirkaya claimed to have extracted (Graziano Reply Aff. ¶ 12). Indeed, Demirkaya does not provide any explanation of why Exhibit 8 purportedly supports his conclusions in paragraph 45 and 46 of his reply affidavit. Similarly, Exhibit 9 to the Demirkaya reply affidavit is unrealiable as Demirkaya claims Exhibit 9 table" "users" reflects a copy of the "users for the Old GP system. However, one of the identified therein has a creation date of November 2017 - fourteen months after Demirkaya 19, forensically imaged the Old GP system in September 2016 (Demirkaya Reply Aff. Ex. 9; Graziano Aff. ¶ 13). These Materials Are Irrelevant to Plaintiff's Remaining Claims: Plaintiff has received all of the Old GP data. The reinstallation of the user interface does not change this fact and Plaintiff has not demonstrated otherwise. Moreover, these materials are not 4 Although Item 6 toPlaintiff's Inventory does not citeto Demirkaya Reply Exhibit 8 or 9,Plaintiffcitesparagraphs 43-48 of the Demirkaya Jan. Aff.,which claims these Exhibits 8 and 9 support his testimony. And so, we address here, aswe did inour sur-reply papers,these inherently unreliableexhibits. 8 FILED: SUFFOLK COUNTY CLERK 10/21/2019 12:06 AM INDEX NO. 063193/2013 NYSCEF DOC. NO. 351 RECEIVED NYSCEF: 10/21/2019 relevant given Plaintiff's testimony at the Framed Issue hearing and the Court's Decision (see supra Item I). A Hearing Is Not Necessary: A hearing is not necessary because allrelevant materials have been produced to Plaintiff. Plaintiff has not demonstrated otherwise. 9 FILED: SUFFOLK COUNTY CLERK 10/21/2019 12:06 AM INDEX NO. 063193/2013 NYSCEF DOC. NO. 351 RECEIVED NYSCEF: 10/21/2019 file" Item 7: "New Great Plains Accüüñtiñg System :::ctadata and disordered VMware log Not Spoliated: Plaintiff's sole basis for claiming that the New Great Plains metadata is spoliated is based an overlap of the date of the log files. This does not indicate that the material was spoliated. Rather, Parties' on May 16, 2016, the Total server crashed (Nevola Aff. ¶ 35), requiring a reboot of, and a VM license server reconfiguration (id.). Parties' Plaintiff's Inventory incorrectly states this issue was addressed by the Total "counsel's ." inexpert and inadmissible speculation as to what . . occurred (Plaintiff's Inventory at 9). However, Mr. Nevola's affidavit provides a clear and accurate explanation that is neither speculation" "inexpert." "inadmissible nor These Materials Are Not Relevant to Plaintiff's Claims: Plaintiff's submissions do not demonstrate how the overlap of VM log files is indicative of information being spoliated; and do not demonstrate how any purportedly spoliated information is relevant to his claims. And, the citations provided in his Spoliation Inventory do not cure these failures. presumed" Instead, Plaintiff argues "[t]he relevance of such destroyed ESI must be (Plaintiff's Inventory at 9). Plaintiff is mistaken. Indeed, where the destruction of ESI has not been established (see supra Item I),no such presumption is triggered. No Hearing is Necessary: A hearing is not necessary because no spoliation has been demonstrated and no relevant materials have been spoliated 10 FILED: SUFFOLK COUNTY CLERK 10/21/2019 12:06 AM INDEX NO. 063193/2013 NYSCEF DOC. NO. 351 RECEIVED NYSCEF: 10/21/2019 ..." Item 8 "ConnectWise. Record tampering. Not Spoliated: Plaintiff has not demonstrated that any evidence has been spoliated. Rather, based upon the date Updated" recorded for certain ConnectWise records in the "Last field, Plaintiff makes the illogical leap that spoliation occurred (Plaintiff's Inventory at p. 10). As explained by Craig Fulton, the Chief Product Officer of ConnectWise, the date listed in the Updated" "Last field does not indicate that the record has been modified or altered (Affidavit of Craig Fulton, sworn to December 7, 2018 (the "Fulton Aff.") at ¶ 9). In addition, ConnectWise Updated" investigated the anomaly of "Last dates pre-dating users existing in ConnectWise (id.at 13). While ConnectWise was unable to explain the discrepancy it reported that it may be "bug" Updated" attributable to a as several updates to the "Last field have been necessary since Updated" 2005 (id.at 14). Thus, the "Last field the basis for Plaintiff's claim of spoliation, cannot be relied on for Plaintiff's conclusion that ConnectWise records have been changed. trial" Mr. Fulton further explained that a review of the ConnectWise "audit is the proper way to determine whether a record has been modified (Fulton Aff. at¶¶ 10-12). Plaintiff's experts failed trial" to indicate whether they reviewed the "audit in reaching their conclusions. And, the Record stomping" citation in Item 8 of Plaintiff's Inventory does not address "time or the majority of the other allegation made in Item 8 of Plaintiff's Inventory. These Materials Are Not Relevant to Plaintiff's Claims: Although Plaintiff admits "itis impossible to know, comprehensively, [the] relevance to each of action" plaintiff's causes of (Plaintiff's Inventory at 11), Plaintiff argues these records may show "the theft of Software's corporate opportunities by Group, Group's use of Software's employees to perform the work generated by those stolen corporate opportunities and the extent to which this occurred" (id.). These arguments are unavailing in light of the Court's Decision (see supra Item I), wherein the contests" Court held "Plaintiff had actual notice of all the transactions he now (id.);and "Plaintiff attack" was aware of, adopted, ratified and/or approved each of the transactions he now seeks to (id.). No Hearing is Necessary: A hearing is not necessary because no spoliation has been demonstrated and no relevant materials have been spoliated. Plaintiff has not provided any evidence supporting his theory that the "Last Updated" date can be relied upon to demonstrate that records were spoliated. 11 FILED: SUFFOLK COUNTY CLERK 10/21/2019 12:06 AM INDEX NO. 063193/2013 NYSCEF DOC. NO. 351 RECEIVED NYSCEF: 10/21/2019 ..." Item 9 "ConnectWise. Cassane deletion of ConnectWise user accounts Not Spoliated: Plaintiff has not demonstrated that any evidence has been spoliated. Instead, Plaintiff concludes spoliation occurred based testimony of Mr. Cassano regarding deactivated/deleted un-used user accounts (Plaintiff's Inventory at 12). Plaintiff's conclusion, however, is not supported by the Record because Mr. Cassano's testimony has never been submitted. And, Plaintiff's citation to his attorney's affidavit is unavailing because that affidavit does not include the excerpts from Mr. Cassano's testimony (see Plaintiff's Inventory at 12 citing Plaintiff's Counsel's moving affidavit at ¶¶ 20-21). However, Mr. Cassano's testimony was clear: removing un-used accounts from the system did not delete from the system information related to the accounts. This fact was confirmed by Mr. Peterson from ConnectWise who stated, "[t]he deactivation/deletion of a particular user does not delete the historical data previously imputed and/or associated with a user. For example, the history regarding the deactivated/deleted user in time records, service tickets and project tickets unchanged" remains preserved and (Peterson Aff. ¶ 17). Indeed, Mr. Peterson stated that "itis 'user' recommended by CW that when an employee leaves a company that the is employee" deactivated/deleted to free up the seat license for assignment to another (Peterson Aff. ¶ 16). Thus, Plaintiff's claim of spoliation is unsupported by the Record (the alleged testimony of Mr. Cassano is not in the Record) and Mr. Peterson explained that even if Mr. Cassano removed user