Preview
November 1, 2022
By Email and NYSCEF
Hon. Damaris E. Torrent, A.J.S.C.
Supreme Court, Westchester County
111 Dr. Martin Luther King Jr. Blvd.
White Plains, NY 10601
IAS Part 28 – Courtroom 1201
Re: Rice v. Einsidler, Index No. 61665/2021
Dear Justice Torrent:
We represent defendant Lee R. Einsidler, as administrator of the estate of his son Aaron
Einsidler (“Defendant”), in the above-captioned action. We write to request an urgent
conference with the Court to address a deeply concerning revelation in the Affirmation in Reply
to Defendant’s Opposition to Plaintiff’s Motion to Compel Discovery filed by Plaintiff yesterday
(Doc. No. 112) (the “Reply Affirmation”). In the Reply Affirmation, Plaintiff’s counsel avers
for the first time in this litigation—more than fourteen months after its commencement—that,
“upon information and belief,” Plaintiff deleted all text messages with Aaron Einsidler.
Plaintiff’s profoundly belated “disclosure”—if in fact true—comes seven months after
the commencement of disclosure, despite the fact that the text messages form a central basis for
Plaintiff’s claims and their existence (or non-existence) has been a central focus of disclosure
and the subject of briefing on competing motions to compel, which are now fully submitted.
A brief recitation of the relevant background sheds light on the seriousness of Plaintiff’s
misconduct. Plaintiff filed his Verified Complaint in August 2021, alleging (without any detail)
that for many months prior to their deaths in August 2020, Aaron and his wife Sara subjected
Plaintiff to months of “continuous and ongoing” “bullying and harassment” through text
messages and other communications, culminating in an alleged physical assault on Plaintiff “[o]n
or about November 2019.” (Compl. ¶¶ 10, 23.) Plaintiff asserts various intentional torts against
Defendant—who serves as Aaron’s estate representative and is also the CEO of the prominent
tequila company Casamigos—and seeks $15 million in damages. (Id. ¶¶ 31-63.)
In light of the Complaint’s allegations, Defendant sought production of Plaintiff’s
communications (including text messages) with Aaron. (See Doc. No. 88 at 5 (Request No. 1).)
On June 24, 2022, Plaintiff served responses to Defendant’s document requests, signed by
Plaintiff’s counsel, in which Plaintiff asserted objections to production of the communications,
but at no point indicated that Plaintiff did not have text messages with Aaron in his possession or
that he had deleted them. (See Doc. No. 91 at 2-3 (Response to Request No. 1).)
Defendant also served a demand for a bill of particulars seeking, inter alia, amplification
of the Complaint’s allegations regarding the text messages. (See Doc. No. 86 at 2 (Demand
No. 8).) In response, Plaintiff did not provide any additional information regarding the text
November 1, 2022
Page 2 of 3
Hon. Damaris E. Torrent
messages or suggest that they had been deleted. (See Doc. No. 46 at 3 (Response to Demand
No. 8).)
Counsel for the parties subsequently met and conferred regarding, inter alia, Plaintiff’s
failure to produce the text messages, and at no point did Plaintiff’s counsel indicate that Plaintiff
did not have text messages with Aaron in his possession or that he had deleted them.
Fourteen months after the commencement of this action and seven months after the
commencement of disclosure, Plaintiff still has not produced any documents in this action
(including text messages) and has refused to produce other critical information. In light of these
gross derelictions of Plaintiff’s disclosure obligations, Defendant requested a pre-motion
conference with the Court, seeking permission to file a motion to compel Plaintiff to respond to
all outstanding disclosure requests and serve an amended bill of particulars. During the pre-
motion conference, the Court’s principal law clerk granted both Defendant and Plaintiff
permission to file competing motions to compel, to be briefed in parallel; a scheduling order
followed. (See Doc. No. 72.) At no point during the pre-motion conference did Plaintiff’s
counsel suggest that Plaintiff had deleted his text messages with Aaron.
In accordance with the scheduling order, on October 12, 2022: (1) Defendant filed his
omnibus motion to compel (Motion Sequence No. 5; see Doc. No. 82 (“Defendant’s MTC”)),
seeking an order compelling, inter alia, production of Plaintiff’s text messages with Aaron; and
(2) Plaintiff filed a motion to compel seeking an order compelling, inter alia, production of text
messages between Plaintiff and Aaron from Aaron’s phone (Motion Sequence No. 4; see Doc.
No. 76 (“Plaintiff’s MTC”)).1 In connection with Plaintiff’s MTC, Plaintiff filed an affidavit and
his counsel filed a virtually identical affirmation stating that Plaintiff believed that Aaron’s cell
phone had text messages between Plaintiff and Aaron that “bear directly on Plaintiff’s claims
that [Aaron] harassed Plaintiff with texts” (Doc. No. 76 ¶ 26; Doc. No. 77 ¶ 25), but at no point
did Plaintiff or his counsel indicate that Plaintiff had deleted his text messages with Aaron or
indicate that Plaintiff did not have the text messages in his possession. Even more troubling,
Plaintiff did not address the supposed deletion in response to Defendant’s MTC seeking to
compel the production of those very same text messages. Instead, Plaintiff’s counsel averred, in
what now appears to be a highly disingenuous statement, that “[i]t is Plaintiff’s position that
Plaintiff has responded appropriately and in good faith” to Defendant’s disclosure requests.
(Doc. No. 110 ¶ 10.)
Now, in his two-page Reply Affirmation at the conclusion of briefing on Plaintiff’s MTC,
Plaintiff’s counsel avers for the first time that “upon information and belief, Plaintiff discarded
all written and electronic communications with Aaron Einsidler out of fear and disgust after the
alleged assault took place.” (Doc. No. 112 ¶ 7.) Notably, Plaintiff himself did not submit an
affidavit to this effect, and Plaintiff’s counsel provides no explanation for how he may have
“information and belief” regarding Plaintiff’s deletion of text messages. Nor does counsel’s
1
As discussed in Defendant’s opposition to Plaintiff’s MTC, Defendant is in possession of Aaron’s iPhone, but the
phone is locked and Defendant does not know the password to unlock it, and Apple will not provide Defendant with
access to the phone’s contents absent a court order. (See Doc. No. 101 at 5-8.)
November 1, 2022
Page 3 of 3
Hon. Damaris E. Torrent
affirmation indicate when the supposed deletion took place—i.e., whether it occurred before or
after the prospect of litigation became clear—or provide any other information.
Plaintiff’s failure to disclose the supposed deletion of his text messages is deeply
troubling and represents a continuation of the gross misconduct of Plaintiff and his counsel in
disclosure in this action. At best, the failure to disclose has needlessly consumed the resources
of Defendant and this Court by requiring litigation of the issue. At worst, Plaintiff has spoliated
evidence or he and/or his counsel are lying about the deletion. Under any scenario, the late
revelation, combined with Plaintiff’s gross abdication of his disclosure obligations, further
supports the obvious inference that Plaintiff has filed a frivolous Complaint in an attempt to
extort Defendant in the wake of his son’s death and has engaged in frivolous conduct under
Uniform Court Rule 130-1.1.
Accordingly, Defendant respectfully requests an urgent conference with the Court to
address this matter.
We thank the Court for its attention to this matter.
Respectfully,
YANKWITT LLP
By: ____________________________
Jonathan Ohring, Esq.
cc: Tayisha DuBose-Lopez, Secretary for Justice Torrent, tdlopez@nycourts.gov
C. Guzman, Senior Court Clerk for Justice Torrent, cguzman@nycourts.gov
Margaret A. Kennedy, Principal Court Attorney for Justice Torrent,
makenned@nycourts.gov
Brian G. Shaffer, Principal Law Clerk for Justice Torrent, bshaffer@nycourts.gov
Steven Brunnlehrman, Esq., steve@rosmanlegal.com
Robert Rosman, Esq., rob@rosmanlegal.com
Preview
November 1, 2022 By Email and NYSCEF Hon. Damaris E. Torrent, A.J.S.C. Supreme Court, Westchester County 111 Dr. Martin Luther King Jr. Blvd. White Plains, NY 10601 IAS Part 28 – Courtroom 1201 Re: Rice v. Einsidler, Index No. 61665/2021 Dear Justice Torrent: We represent defendant Lee R. Einsidler, as administrator of the estate of his son Aaron Einsidler (“Defendant”), in the above-captioned action. We write to request an urgent conference with the Court to address a deeply concerning revelation in the Affirmation in Reply to Defendant’s Opposition to Plaintiff’s Motion to Compel Discovery filed by Plaintiff yesterday (Doc. No. 112) (the “Reply Affirmation”). In the Reply Affirmation, Plaintiff’s counsel avers for the first time in this litigation—more than fourteen months after its commencement—that, “upon information and belief,” Plaintiff deleted all text messages with Aaron Einsidler. Plaintiff’s profoundly belated “disclosure”—if in fact true—comes seven months after the commencement of disclosure, despite the fact that the text messages form a central basis for Plaintiff’s claims and their existence (or non-existence) has been a central focus of disclosure and the subject of briefing on competing motions to compel, which are now fully submitted. A brief recitation of the relevant background sheds light on the seriousness of Plaintiff’s misconduct. Plaintiff filed his Verified Complaint in August 2021, alleging (without any detail) that for many months prior to their deaths in August 2020, Aaron and his wife Sara subjected Plaintiff to months of “continuous and ongoing” “bullying and harassment” through text messages and other communications, culminating in an alleged physical assault on Plaintiff “[o]n or about November 2019.” (Compl. ¶¶ 10, 23.) Plaintiff asserts various intentional torts against Defendant—who serves as Aaron’s estate representative and is also the CEO of the prominent tequila company Casamigos—and seeks $15 million in damages. (Id. ¶¶ 31-63.) In light of the Complaint’s allegations, Defendant sought production of Plaintiff’s communications (including text messages) with Aaron. (See Doc. No. 88 at 5 (Request No. 1).) On June 24, 2022, Plaintiff served responses to Defendant’s document requests, signed by Plaintiff’s counsel, in which Plaintiff asserted objections to production of the communications, but at no point indicated that Plaintiff did not have text messages with Aaron in his possession or that he had deleted them. (See Doc. No. 91 at 2-3 (Response to Request No. 1).) Defendant also served a demand for a bill of particulars seeking, inter alia, amplification of the Complaint’s allegations regarding the text messages. (See Doc. No. 86 at 2 (Demand No. 8).) In response, Plaintiff did not provide any additional information regarding the text November 1, 2022 Page 2 of 3 Hon. Damaris E. Torrent messages or suggest that they had been deleted. (See Doc. No. 46 at 3 (Response to Demand No. 8).) Counsel for the parties subsequently met and conferred regarding, inter alia, Plaintiff’s failure to produce the text messages, and at no point did Plaintiff’s counsel indicate that Plaintiff did not have text messages with Aaron in his possession or that he had deleted them. Fourteen months after the commencement of this action and seven months after the commencement of disclosure, Plaintiff still has not produced any documents in this action (including text messages) and has refused to produce other critical information. In light of these gross derelictions of Plaintiff’s disclosure obligations, Defendant requested a pre-motion conference with the Court, seeking permission to file a motion to compel Plaintiff to respond to all outstanding disclosure requests and serve an amended bill of particulars. During the pre- motion conference, the Court’s principal law clerk granted both Defendant and Plaintiff permission to file competing motions to compel, to be briefed in parallel; a scheduling order followed. (See Doc. No. 72.) At no point during the pre-motion conference did Plaintiff’s counsel suggest that Plaintiff had deleted his text messages with Aaron. In accordance with the scheduling order, on October 12, 2022: (1) Defendant filed his omnibus motion to compel (Motion Sequence No. 5; see Doc. No. 82 (“Defendant’s MTC”)), seeking an order compelling, inter alia, production of Plaintiff’s text messages with Aaron; and (2) Plaintiff filed a motion to compel seeking an order compelling, inter alia, production of text messages between Plaintiff and Aaron from Aaron’s phone (Motion Sequence No. 4; see Doc. No. 76 (“Plaintiff’s MTC”)).1 In connection with Plaintiff’s MTC, Plaintiff filed an affidavit and his counsel filed a virtually identical affirmation stating that Plaintiff believed that Aaron’s cell phone had text messages between Plaintiff and Aaron that “bear directly on Plaintiff’s claims that [Aaron] harassed Plaintiff with texts” (Doc. No. 76 ¶ 26; Doc. No. 77 ¶ 25), but at no point did Plaintiff or his counsel indicate that Plaintiff had deleted his text messages with Aaron or indicate that Plaintiff did not have the text messages in his possession. Even more troubling, Plaintiff did not address the supposed deletion in response to Defendant’s MTC seeking to compel the production of those very same text messages. Instead, Plaintiff’s counsel averred, in what now appears to be a highly disingenuous statement, that “[i]t is Plaintiff’s position that Plaintiff has responded appropriately and in good faith” to Defendant’s disclosure requests. (Doc. No. 110 ¶ 10.) Now, in his two-page Reply Affirmation at the conclusion of briefing on Plaintiff’s MTC, Plaintiff’s counsel avers for the first time that “upon information and belief, Plaintiff discarded all written and electronic communications with Aaron Einsidler out of fear and disgust after the alleged assault took place.” (Doc. No. 112 ¶ 7.) Notably, Plaintiff himself did not submit an affidavit to this effect, and Plaintiff’s counsel provides no explanation for how he may have “information and belief” regarding Plaintiff’s deletion of text messages. Nor does counsel’s 1 As discussed in Defendant’s opposition to Plaintiff’s MTC, Defendant is in possession of Aaron’s iPhone, but the phone is locked and Defendant does not know the password to unlock it, and Apple will not provide Defendant with access to the phone’s contents absent a court order. (See Doc. No. 101 at 5-8.) November 1, 2022 Page 3 of 3 Hon. Damaris E. Torrent affirmation indicate when the supposed deletion took place—i.e., whether it occurred before or after the prospect of litigation became clear—or provide any other information. Plaintiff’s failure to disclose the supposed deletion of his text messages is deeply troubling and represents a continuation of the gross misconduct of Plaintiff and his counsel in disclosure in this action. At best, the failure to disclose has needlessly consumed the resources of Defendant and this Court by requiring litigation of the issue. At worst, Plaintiff has spoliated evidence or he and/or his counsel are lying about the deletion. Under any scenario, the late revelation, combined with Plaintiff’s gross abdication of his disclosure obligations, further supports the obvious inference that Plaintiff has filed a frivolous Complaint in an attempt to extort Defendant in the wake of his son’s death and has engaged in frivolous conduct under Uniform Court Rule 130-1.1. Accordingly, Defendant respectfully requests an urgent conference with the Court to address this matter. We thank the Court for its attention to this matter. Respectfully, YANKWITT LLP By: ____________________________ Jonathan Ohring, Esq. cc: Tayisha DuBose-Lopez, Secretary for Justice Torrent, tdlopez@nycourts.gov C. Guzman, Senior Court Clerk for Justice Torrent, cguzman@nycourts.gov Margaret A. Kennedy, Principal Court Attorney for Justice Torrent, makenned@nycourts.gov Brian G. Shaffer, Principal Law Clerk for Justice Torrent, bshaffer@nycourts.gov Steven Brunnlehrman, Esq., steve@rosmanlegal.com Robert Rosman, Esq., rob@rosmanlegal.com