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FILED: WESTCHESTER COUNTY CLERK 08/10/2023 02:11 PM INDEX NO. 61665/2021
NYSCEF DOC. NO. 188 RECEIVED NYSCEF: 08/10/2023
Exhibit M
FILED: WESTCHESTER COUNTY CLERK 08/10/2023 02:11 PM INDEX NO. 61665/2021
NYSCEF DOC. NO. 188 RECEIVED NYSCEF: 08/10/2023
November 2, 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 write on behalf of Defendant in response to Plaintiff’s counsel’s November 1, 2022
letter (Doc. No. 114) (“Plaintiff’s Letter”), in which Plaintiff’s counsel responded to Defendant’s
November 1, 2022 letter (Doc. No. 113) (“Defendant’s Letter”) requesting a conference to
address Plaintiff’s counsel’s recent revelation that Plaintiff deleted all text messages with Aaron
Einsidler.1
Tellingly, Plaintiff’s Letter does not dispute any of the information set forth in
Defendant’s Letter, thereby confirming that Plaintiff and/or his counsel concealed the supposed
deletion of Plaintiff’s text messages with Aaron until Plaintiff’s filing of the Reply Affirmation
two days ago.
Remarkably, however, Plaintiff’s counsel has changed stories yet again. Now, for the
first time, Plaintiff’s counsel asserts that, rather than Plaintiff’s text messages being deleted,
“Plaintiff’s counsel only recently learned that Plaintiff was not in possession of his own cell
phone.” (Emphasis added.) Assuming that this new, unsworn assertion is correct, it means one
or more of the following: (1) Plaintiff has spoliated evidence by disposing of his cell phone
despite ongoing or anticipated litigation; (2) Plaintiff’s counsel committed perjury by stating in
the Reply Affirmation that Plaintiff had deleted his text messages; or (3) Plaintiff’s counsel
failed to inquire of their client regarding the status of the phone until now, despite the fact that
the existence of the text messages on Plaintiff’s phone was the subject of months of discussion
during disclosure and the subject of briefing on competing motions to compel. Again, any of
these would warrant sanctions and further supports that Plaintiff filed a frivolous Complaint in an
attempted shakedown of Defendant.
Confronted with the indisputable facts of their conduct, Plaintiff’s counsel resorts to their
typical response: distract and attempt to muddy the waters by claiming that Defendant’s counsel
only recently disclosed that Defendant is unable to access Aaron’s cell phone. The Court should
not fall for this obvious diversion tactic: Plaintiff’s counsel’s assertions are verifiably false.
During meet-and-confer discussions with Plaintiff’s counsel, the undersigned made clear
that, after the police completed their investigation of Aaron’s death and turned his cell phone
1
Capitalized terms not otherwise defined herein have the meanings ascribed to them in Defendant’s Letter.
FILED: WESTCHESTER COUNTY CLERK 08/10/2023 02:11 PM INDEX NO. 61665/2021
NYSCEF DOC. NO. 188 RECEIVED NYSCEF: 08/10/2023
November 2, 2022
Page 2 of 2
Hon. Damaris E. Torrent
over to Defendant, Defendant could not access the phone because he did not know the passcode
to unlock it. The Court does not have to take the undersigned’s word for that: Attached as
Exhibit P to my affirmation in support of Defendant’s MTC is my letter to Plaintiff’s counsel,
dated August 30, 2022, summarizing the August 26, 2022 meet-and-confer and expressly
memorializing Defendant’s inability to access the phone. (See Doc. No. 99, Ex. P at 4 (“As I
explained during our call, Defendant has possession of Aaron’s iPhone, but does not know the
passcode to unlock it.”).) Thus, it is incontrovertible that the undersigned affirmatively disclosed
the inability to access the phone upon Defendant’s receipt of it, and that Plaintiff’s counsel had
knowledge of this fact well before the September 21, 2022 pre-motion conference with the
Court’s principal law clerk and the subsequent briefing on the motions to compel.
In sum, Plaintiff’s Letter serves to underscore the need for 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
FILED: WESTCHESTER COUNTY CLERK 08/10/2023 02:11 PM INDEX NO. 61665/2021 NYSCEF DOC. NO. 188 RECEIVED NYSCEF: 08/10/2023 Exhibit M FILED: WESTCHESTER COUNTY CLERK 08/10/2023 02:11 PM INDEX NO. 61665/2021 NYSCEF DOC. NO. 188 RECEIVED NYSCEF: 08/10/2023 November 2, 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 write on behalf of Defendant in response to Plaintiff’s counsel’s November 1, 2022 letter (Doc. No. 114) (“Plaintiff’s Letter”), in which Plaintiff’s counsel responded to Defendant’s November 1, 2022 letter (Doc. No. 113) (“Defendant’s Letter”) requesting a conference to address Plaintiff’s counsel’s recent revelation that Plaintiff deleted all text messages with Aaron Einsidler.1 Tellingly, Plaintiff’s Letter does not dispute any of the information set forth in Defendant’s Letter, thereby confirming that Plaintiff and/or his counsel concealed the supposed deletion of Plaintiff’s text messages with Aaron until Plaintiff’s filing of the Reply Affirmation two days ago. Remarkably, however, Plaintiff’s counsel has changed stories yet again. Now, for the first time, Plaintiff’s counsel asserts that, rather than Plaintiff’s text messages being deleted, “Plaintiff’s counsel only recently learned that Plaintiff was not in possession of his own cell phone.” (Emphasis added.) Assuming that this new, unsworn assertion is correct, it means one or more of the following: (1) Plaintiff has spoliated evidence by disposing of his cell phone despite ongoing or anticipated litigation; (2) Plaintiff’s counsel committed perjury by stating in the Reply Affirmation that Plaintiff had deleted his text messages; or (3) Plaintiff’s counsel failed to inquire of their client regarding the status of the phone until now, despite the fact that the existence of the text messages on Plaintiff’s phone was the subject of months of discussion during disclosure and the subject of briefing on competing motions to compel. Again, any of these would warrant sanctions and further supports that Plaintiff filed a frivolous Complaint in an attempted shakedown of Defendant. Confronted with the indisputable facts of their conduct, Plaintiff’s counsel resorts to their typical response: distract and attempt to muddy the waters by claiming that Defendant’s counsel only recently disclosed that Defendant is unable to access Aaron’s cell phone. The Court should not fall for this obvious diversion tactic: Plaintiff’s counsel’s assertions are verifiably false. During meet-and-confer discussions with Plaintiff’s counsel, the undersigned made clear that, after the police completed their investigation of Aaron’s death and turned his cell phone 1 Capitalized terms not otherwise defined herein have the meanings ascribed to them in Defendant’s Letter. FILED: WESTCHESTER COUNTY CLERK 08/10/2023 02:11 PM INDEX NO. 61665/2021 NYSCEF DOC. NO. 188 RECEIVED NYSCEF: 08/10/2023 November 2, 2022 Page 2 of 2 Hon. Damaris E. Torrent over to Defendant, Defendant could not access the phone because he did not know the passcode to unlock it. The Court does not have to take the undersigned’s word for that: Attached as Exhibit P to my affirmation in support of Defendant’s MTC is my letter to Plaintiff’s counsel, dated August 30, 2022, summarizing the August 26, 2022 meet-and-confer and expressly memorializing Defendant’s inability to access the phone. (See Doc. No. 99, Ex. P at 4 (“As I explained during our call, Defendant has possession of Aaron’s iPhone, but does not know the passcode to unlock it.”).) Thus, it is incontrovertible that the undersigned affirmatively disclosed the inability to access the phone upon Defendant’s receipt of it, and that Plaintiff’s counsel had knowledge of this fact well before the September 21, 2022 pre-motion conference with the Court’s principal law clerk and the subsequent briefing on the motions to compel. In sum, Plaintiff’s Letter serves to underscore the need for 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