Preview
FILED: SUFFOLK COUNTY CLERK 01/31/2023 10:51 PM INDEX NO. 063193/2013
NYSCEF DOC. NO. 520 RECEIVED NYSCEF: 01/31/2023
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- : AFFIDAVIT OF
: MICHAEL GRAZIANO
VINCENT TEDESCO, TOTAL COMPUTER :
SYSTEMS, LTD. d/b/a TOTAL COMPUTER :
GROUP, TOTAL COMPUTER GROUP, LLC, :
TOTAL COMPUTERS, LTD. And JOHN DOE :
CORPORATION, :
Defendants. :
:
TOTAL COMPUTER SOFTWARE, LLC, :
:
Nominal-Defendant. :
------------------------------------------------------------------- x
TOTAL COMPUTER SOFTWARE, LLC, :
:
Third-Party Plaintiff, :
-against- :
:
ALBERT PEREZ, :
Third-Party Defendant. :
------------------------------------------------------------------- x
STATE OF NEW YORK )
) ss.:
COUNTY OF SUFFOLK )
MICHAEL GRAZIANO, being duly sworn, deposes and says:
1) I am associated with Alpha Group Investigation (“Alpha”). I have personal
knowledge of the matters set forth herein. I have demonstrated in prior submissions to the Court
my experience and qualifications for the submission of this affidavit.
2) Alpha Group was retained by Defendants (the “Total Parties”) to assist in the
production of the Total Parties’ electronically stored information (“ESI”) in compliance with the
orders of this Court and the appointed discovery referee. As part of this assignment, I was tasked
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FILED: SUFFOLK COUNTY CLERK 01/31/2023 10:51 PM INDEX NO. 063193/2013
NYSCEF DOC. NO. 520 RECEIVED NYSCEF: 01/31/2023
with assisting with processing the backup materials that the Total Parties provided to Kroll
Ontrack (“Ontrack”).
3) On May 12, 2021, I received from Ontrack two separate 8 terabyte hard drives
(the “Ontrack Hard Drives”). I reviewed the Ontrack Hard Drives and discovered that they
contained numerous emails, virtual machines, and backup files with emails potentially located in
.pst and .edb files (email container files) and totaling 125 gigabytes of data which needed to be
reviewed to ensure privileged materials were not produced. Separately, the virtual machines and
backup files, which may have also contained emails, contained an additional 2 terabytes of data
which may have contained privileged materials.
4) I then prepared two hard drives containing everything from the Ontrack Hard
Drives, except for the .pst and .edb files, in addition to the virtual machines and backup files
which may have contained emails (the “Potentially Privileged Materials”). The two hard drives
which did not contain Potentially Privileged Materials were picked up by Plaintiff’s expert on
May 25, 2021. Attached as Exhibit A is a copy of the receipt they signed when taking
possession of those two hard drives.
5) I then searched through the Potentially Privileged Materials and removed emails
which may be privileged based on the parties’ agreed on list of search terms. This remaining
production included approximately 430,000 emails (totaling 125 gigabytes) as well as over
10,000 files (including virtual machines and other backup files) which were placed on a thumb
drive and a separate hard drive. The thumb drive and additional hard drive were forwarded to
the Total Parties’ counsel, who I am led to understand then sent the thumb drive and additional
hard drive to Plaintiff’s counsel.
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6) I have reviewed the data provided to Plaintiff from the materials Ontrack Hard
Drives. For the ConnectWise system, the Total Parties produced to Plaintiff 80 backup files
which include the term “cwwebapp_tcg.”
7) Plaintiff was also provided over 430,000 emails recovered from the Ontrack Hard
Drives. While I understand that the discovery referee previously allowed him to do so, Plaintiff
has still not sought to review or search the emails on the email server I am told has been called
“the replacement email server” by the discovery referee. This is unusual to me, because if a
party claims that an email server is fake, it would be usual and customary for a computer forensic
expert to substantiate those allegations by comparing emails recovered from back-up materials to
emails contained on the claimed fake server. That has not occurred here.
8) Plaintiff was provided a virtual machine running the New Great Plains software
named “TCGGP-flat.vmdk.” Plaintiff was also provided backup files and other files for the
Great Plains system (including files with names like TCG.BAK,
LogSet_tcggp_20110831_134628.cab and DYNAMICS_backup_200610181000.trn). In fact,
over 900 files containing the name “TCG_backup” were provided.
9) Questions asked of a witness about specific file extensions, such as .edb (a
Microsoft email database extension) or .mdf (a ConnectWise database file extension) would be
misleading because backup files often do not have the same file extension names as the original
file extensions. That is because the backup files can have file extensions like .bak or .trn. It is
from these backup files that a computer professional would extract the original file (which may
or may not extract with their original file extension).
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____________________________
Michael Graziano
Sworn to before me this:
___ day of January 2023
_________________________
NOTARY PUBLIC
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On the 31st day of January in the year 2023, before me, the undersigned, personally appeared Frank T. Spano, by way of
video conference in accordance with New York State Executive Law §135-c, personally known to me or proved to me on
the basis of satisfactory evidence displayed during the video conference to be the individual whose name is subscribed to
the within instrument and acknowledged to me that he was at that time physically present in the State of New York, and
executed the same in his capacity, and that by his signature on the instrument, the individual, or the person upon behalf
of which the individual acted, executed the instrument with an electronic signature, a copy of the signed instrument was
transmitted to and received by me on the same day it was signed.
___________________
Notary Public
Notarized in Queens County
ELIZABETH W. MORIN
NOTARY PUBLIC, STATE OF NEW YORK
Registration No. 01MO6416916
Qualified in Queens County
Commission Expires May 3, 2025
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Preview
FILED: SUFFOLK COUNTY CLERK 01/31/2023 10:51 PM INDEX NO. 063193/2013 NYSCEF DOC. NO. 520 RECEIVED NYSCEF: 01/31/2023 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- : AFFIDAVIT OF : MICHAEL GRAZIANO VINCENT TEDESCO, TOTAL COMPUTER : SYSTEMS, LTD. d/b/a TOTAL COMPUTER : GROUP, TOTAL COMPUTER GROUP, LLC, : TOTAL COMPUTERS, LTD. And JOHN DOE : CORPORATION, : Defendants. : : TOTAL COMPUTER SOFTWARE, LLC, : : Nominal-Defendant. : ------------------------------------------------------------------- x TOTAL COMPUTER SOFTWARE, LLC, : : Third-Party Plaintiff, : -against- : : ALBERT PEREZ, : Third-Party Defendant. : ------------------------------------------------------------------- x STATE OF NEW YORK ) ) ss.: COUNTY OF SUFFOLK ) MICHAEL GRAZIANO, being duly sworn, deposes and says: 1) I am associated with Alpha Group Investigation (“Alpha”). I have personal knowledge of the matters set forth herein. I have demonstrated in prior submissions to the Court my experience and qualifications for the submission of this affidavit. 2) Alpha Group was retained by Defendants (the “Total Parties”) to assist in the production of the Total Parties’ electronically stored information (“ESI”) in compliance with the orders of this Court and the appointed discovery referee. As part of this assignment, I was tasked 87903530.3 1 of 5 FILED: SUFFOLK COUNTY CLERK 01/31/2023 10:51 PM INDEX NO. 063193/2013 NYSCEF DOC. NO. 520 RECEIVED NYSCEF: 01/31/2023 with assisting with processing the backup materials that the Total Parties provided to Kroll Ontrack (“Ontrack”). 3) On May 12, 2021, I received from Ontrack two separate 8 terabyte hard drives (the “Ontrack Hard Drives”). I reviewed the Ontrack Hard Drives and discovered that they contained numerous emails, virtual machines, and backup files with emails potentially located in .pst and .edb files (email container files) and totaling 125 gigabytes of data which needed to be reviewed to ensure privileged materials were not produced. Separately, the virtual machines and backup files, which may have also contained emails, contained an additional 2 terabytes of data which may have contained privileged materials. 4) I then prepared two hard drives containing everything from the Ontrack Hard Drives, except for the .pst and .edb files, in addition to the virtual machines and backup files which may have contained emails (the “Potentially Privileged Materials”). The two hard drives which did not contain Potentially Privileged Materials were picked up by Plaintiff’s expert on May 25, 2021. Attached as Exhibit A is a copy of the receipt they signed when taking possession of those two hard drives. 5) I then searched through the Potentially Privileged Materials and removed emails which may be privileged based on the parties’ agreed on list of search terms. This remaining production included approximately 430,000 emails (totaling 125 gigabytes) as well as over 10,000 files (including virtual machines and other backup files) which were placed on a thumb drive and a separate hard drive. The thumb drive and additional hard drive were forwarded to the Total Parties’ counsel, who I am led to understand then sent the thumb drive and additional hard drive to Plaintiff’s counsel. 2 87903530.3 2 of 5 FILED: SUFFOLK COUNTY CLERK 01/31/2023 10:51 PM INDEX NO. 063193/2013 NYSCEF DOC. NO. 520 RECEIVED NYSCEF: 01/31/2023 6) I have reviewed the data provided to Plaintiff from the materials Ontrack Hard Drives. For the ConnectWise system, the Total Parties produced to Plaintiff 80 backup files which include the term “cwwebapp_tcg.” 7) Plaintiff was also provided over 430,000 emails recovered from the Ontrack Hard Drives. While I understand that the discovery referee previously allowed him to do so, Plaintiff has still not sought to review or search the emails on the email server I am told has been called “the replacement email server” by the discovery referee. This is unusual to me, because if a party claims that an email server is fake, it would be usual and customary for a computer forensic expert to substantiate those allegations by comparing emails recovered from back-up materials to emails contained on the claimed fake server. That has not occurred here. 8) Plaintiff was provided a virtual machine running the New Great Plains software named “TCGGP-flat.vmdk.” Plaintiff was also provided backup files and other files for the Great Plains system (including files with names like TCG.BAK, LogSet_tcggp_20110831_134628.cab and DYNAMICS_backup_200610181000.trn). In fact, over 900 files containing the name “TCG_backup” were provided. 9) Questions asked of a witness about specific file extensions, such as .edb (a Microsoft email database extension) or .mdf (a ConnectWise database file extension) would be misleading because backup files often do not have the same file extension names as the original file extensions. That is because the backup files can have file extensions like .bak or .trn. It is from these backup files that a computer professional would extract the original file (which may or may not extract with their original file extension). 3 87903530.3 3 of 5 FILED: SUFFOLK COUNTY CLERK 01/31/2023 10:51 PM INDEX NO. 063193/2013 NYSCEF DOC. NO. 520 RECEIVED NYSCEF: 01/31/2023 ____________________________ Michael Graziano Sworn to before me this: ___ day of January 2023 _________________________ NOTARY PUBLIC 4 87903530.3 4 of 5 FILED: SUFFOLK COUNTY CLERK 01/31/2023 10:51 PM INDEX NO. 063193/2013 NYSCEF DOC. NO. 520 RECEIVED NYSCEF: 01/31/2023 On the 31st day of January in the year 2023, before me, the undersigned, personally appeared Frank T. Spano, by way of video conference in accordance with New York State Executive Law §135-c, personally known to me or proved to me on the basis of satisfactory evidence displayed during the video conference to be the individual whose name is subscribed to the within instrument and acknowledged to me that he was at that time physically present in the State of New York, and executed the same in his capacity, and that by his signature on the instrument, the individual, or the person upon behalf of which the individual acted, executed the instrument with an electronic signature, a copy of the signed instrument was transmitted to and received by me on the same day it was signed. ___________________ Notary Public Notarized in Queens County ELIZABETH W. MORIN NOTARY PUBLIC, STATE OF NEW YORK Registration No. 01MO6416916 Qualified in Queens County Commission Expires May 3, 2025 5 of 5