carpinello letter

Case 1:13-cv-01053-MAD-RFT Document 141 Filed 02/20/15 Page 1 of 3

Exhibit A

Case 1:13-cv-01053-MAD-RFT Document 141-1 Filed 02/20/15 Page 1 of 2

Exhibit B


UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK

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WANDERING DAGO, INC.,

Civil Action No. 1:13-CV-01053-MAD-RFT Plaintiff, V.NEW YORK STATE OFFICE OF GENERALSERVICES, ROANN M. DESTITO, JOSEPHJ. RABITO, WILLIAM F. BRUSO, JR.,AARON WALTERS, NEW YORK RACINGASSOCIATION, INC., CHRISTOPHER K.KAY, STEPHEN TRAVERS, JOHN DOES 1-5and THE STATE OF NEW YORK, Defendants.- - - - - - - - - - - - - - - - - - - - - - - - - -

Deposition of BENNETT LIEBMAN, taken byattorneys for the Plaintiff in the above-entitledmatter, held at the law offices of Boies, Schiller &Flexner, LLP, 30 South Pearl Street, Albany, NewYork, before Katherine D. Nichols, RegisteredProfessional Reporter and Notary Public, on February6, 2015 at 9:35 a.m.


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Page 221 (Bennett Liebman)2 A. No.3 Q. So you went back to your office later4 that afternoon?5 A. Yes.6 Q. And did you take any action with respect7 to Wandering Dago or have any communication with8 anyone that day?9 A. I sent an email to Chris Kay.

10 MR. CARPINELLO: Let's have this marked.11 (Plaintiff's Exhibit 91 was marked for12 identification)13 BY MR. CARPINELLO:14 Q. Mr. Liebman, you have in front of you15 what has been marked Exhibit 91, which appears to16 be an email chain on July 19th, 2013. Do you17 recognize these as emails that you sent?18 A. (Reviewing document) Yes. I think that19 -- okay, this has two emails through me. The top20 one seems totally accurate. I'm -- I know I sent21 basically the second one. I'm just not sure if22 that's exactly what I said.23 Q. Well, would you have any reason to24 believe that it was altered in any way?25 A. I don't know. I just don't know.

Page 231 (Bennett Liebman)2 Q. Now, why did you send this email to Mr.3 Kay?4 A. I sent this email to Mr. Kay to see if5 there was some way of working out the situation6 where NYRA would not get beaten up in the New York7 City tabloids for having a concession there whose8 name could be considered anti-Italian.9 Q. Did you discuss this email or your

10 communication with Mr. Kay to anyone in the11 executive chamber at any time?12 A. Not that day. On the next Monday, when13 news broke of that, I sent a note saying that I14 had sent this memo to a number of the people in15 the executive chamber.16 Q. You sent a note to a number of people in17 the executive chamber?18 A. Yeah. That I was the person probably19 referred to as -- that I was the person referred20 to as the high state official who had advised NYRA21 of the Wandering Dago.22 Q. Now, who did you send the note to?23 A. As best as I can -- I know I sent it to24 Howard Glaser. I'm sure I would have sent it to25 Linda Lacewell, who's a special counsel to the

Page 241 (Bennett Liebman)2 Governor, and I sent it to a number of people in3 the Governor's press office.4 Q. Did you send it to the Governor?5 A. No.6 Q. Going back to Exhibit 91. After you sent7 the first email at 2:58 p.m., did you receive any8 response from Mr. Kay?9 A. Yes. And one was, Thanks, let me check

10 on this.11 Q. That's the only response you received?12 A. Yes.13 Q. He responded to you at 3:01. And then at14 3:38, you send the email, "Without showing any15 desire to micromanage, there are still continuing16 complaints which were heard last year as well.17 The track is becoming too dusty and dirty. People18 want it to be the Disney Universal of the north."19 Was that an issue that you had raised20 with Mr. Kay earlier?21 A. That was not an issue. But basically,22 when I was walking around the track on opening23 day, the backyard of the track was dusty, dirty,24 and did not look the way a facility should open,25 especially a shrine like Saratoga should be on the

Page 251 (Bennett Liebman)2 day that -- on opening day. It should not look3 like the Saratoga Performing Arts Center after a4 rock concert.5 Q. Was this routine for you to make these6 kind of comments or suggestions to Mr. Kay?7 A. Since I'd only met Mr. Kay the day8 before, it would not be routine for me to make9 those comments.

10 Q. Well, was it routine for you to make11 comments or suggestions to people in Mr. Kay's12 position at NYRA?13 A. Yes, at various times. Especially on the14 state Racing and Wagering Board, all the time.15 Q. Did you have either an in-person or a16 telephone conversation with Mr. Kay about this17 issue at any point in time?18 A. This is July 19th. Two weeks after that,19 I had called Mr. Kay -- I called Mr. Kay on a20 different matter. The matter involved NYRA's21 treatment of the New York State Gaming Commission22 at a meeting that the Gaming Commission had held23 earlier that week. NYRA had requested the Gaming24 Commission to approve a new wager called the25 Pick 5. We had Pick 5 consecutive winners, and


8 (Pages 26 to 29)8 (Pages 26 to 29)

Page 261 (Bennett Liebman)2 they wanted it at a lower take-out rate than other3 similar exotic wagers.4 NYRA had been talking about this bet for5 years, but they finally applied for it right after6 opening day. And they were begging us to do it so7 that it would be ready by August 3rd, I think8 that's the Saturday, because that was Whitney Day9 and it was the 150th anniversary of the track, and

10 they were begging us to do this.11 And we bust everything to get this ready.12 And after -- and we begged the gaming13 commissioners to pass this, because we think this14 is good for racing and for fans. And after they15 pass it, NYRA says we won't have it ready until16 next September. We're just like, Why didn't you17 guys have the common courtesy to tell us that --18 that this bet wouldn't be ready? So I was calling19 up to complain about NYRA's activities.20 To start off the conversation, he21 calls -- says, Oh, sorry to get you involved with22 the Wandering Dago. You had nothing to do with23 this. They didn't have Health Department24 approval, and that's why we got rid of them.25 Q. What was your response to that?

Page 271 (Bennett Liebman)2 A. None.3 Q. Did you believe his statement, that they4 had gotten rid of them because they didn't have5 Health Department approval?6 A. I had no idea.7 Q. Now, in your answer, you said that NYRA8 was begging us --9 A. Us. Basically the Gaming Commission to

10 approve this wager.11 Q. You had no position on the Gaming12 Commission?13 A. No. But I'm the program person14 overseeing the Gaming Commission.15 Q. So you make recommendations to the Gaming16 Commission about actions they should take?17 A. I try to.18 Q. Are they usually followed?19 A. They are usually followed by whoever the20 executive director is. They are not necessarily21 followed by the Gaming Commission itself, which in22 this case was the first or second meeting, so that23 there was no guarantee what we wanted would get24 through.25 Q. The Gaming Commission, was this a

Page 281 (Bennett Liebman)2 successor to the Racing and Wagering Board?3 A. A combination of the Racing and Wagering4 Board and the State Lottery Commission.5 Q. Did it have members from each of those6 former agencies?7 A. No. It had four new members.8 Q. How many are on the Gaming Commission?9 A. By statute, seven. Right now, six.

10 Q. And at that time, that is, in the summer11 of 2013, it had four?12 A. It had four. It needed every member to13 vote for this.14 Q. And those are people appointed by the15 Governor?16 A. Five of the seven are appointed by the17 Governor. One is appointed by the Senate Majority18 Leader and one is -- one. And there's a vacancy19 that's supposed to be appointed by the Speaker of20 the Assembly. All have to be approved by the21 Senate.22 Q. The four that were on in the summer of23 2013, were they all gubinatorial appointments?24 A. They were all gubinatorial appointees,25 but they had been confirmed by the Senate in June

Page 291 (Bennett Liebman)2 of 2013.3 MR. CARPINELLO: Let's have this marked.4 (Plaintiff's Exhibit 92 was marked for5 identification)6 BY MR. CARPINELLO:7 Q. Mr. Liebman, you have what's been marked8 as Exhibit 92, which has what appears to be your9 original email from July 19th referencing the

10 Wandering Dago. And in response, the next day at11 7:12 p.m. from Christopher Kay, stating, "The food12 truck in question was removed from the premises13 before Saturday's races. Thank you for your14 concern."15 Do you recall receiving this response?16 A. Yes.17 Q. Did you have a conversation with Mr. Kay18 at the time you got this email?19 A. No.20 Q. Did you discuss Mr. Kay's email with21 anybody in the executive chamber?22 A. No.23 Q. Either that day or at any point in time?24 A. This particular email, the general25 subject of this came up on Monday when I sent out


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Page 301 (Bennett Liebman)2 an email to the people in the Governor's office.3 Q. You say it came up in the context of your4 email. Did you have any discussions with anybody5 in the executive chamber about this?6 A. No.7 Q. What discussions have you had with anyone8 in the executive chamber generally about the9 Wandering Dago issue from the first time you

10 discovered the truck up until today?11 MS. GALLIGAN: I'm just going to caution12 the witness to answer the question, except to13 the extent that it requires you to reveal any14 conversations with counsel.15 BY MR. CARPINELLO:16 Q. I'm entitled to know whether you had17 conversations --18 A. Other than talking about this meeting,19 general level, basically none. This did not20 generally come up, except after the hearing on21 this in September in Federal Court. At that22 point, Fran Reiter passed me in the hall one day23 and said -- just pointed her finger at me and24 said, "Troublemaker."25 I had a conversation in November of 2013

Page 311 (Bennett Liebman)2 with Mylan Denerstein, who is the counsel to the3 Governor.4 MS. GALLIGAN: I'm going to ask you to5 not reveal what --6 THE WITNESS: It's not a --7 BY MR. CARPINELLO:8 Q. Let me ask you this question: Were you9 seeking legal advice?

10 A. No, I was not.11 Q. Did he give you legal advice?12 A. No, she did not.13 Q. She. Okay.14 A. She basically said -- she thanked me and15 said, You know, you're my hero.16 I had no conversations about this, and17 I've had no conversations about this with Howard18 Glaser.19 Q. At any time?20 A. No, I haven't had a conversation with21 him. But in April of 2014, Mr. Kay had a meeting22 with Howard Glaser about his plans for the Belmont23 Stakes in 2014 to which -- which I attended.24 Q. And the Wandering Dago came up?25 A. Mr. Kay raised the issue of the Wandering

Page 321 (Bennett Liebman)2 Dago.3 Q. What did Mr. Kay say?4 A. Mr. Kay said, We did this on our own. We5 were having problems with them. We were having6 dinner, and we decided to get rid of them.7 Q. Did he reference who was having dinner?8 A. He did not. That's the only -- but I had9 no conversation with Mr. Glaser about this.

10 Q. Did Mr. Glaser say anything in this11 meeting about Wandering Dago?12 A. No.13 Q. Did you say anything?14 A. No.15 Q. At any time, had you received any16 complaints from anyone about the Wandering Dago17 name?18 A. No.19 Q. Did Mr. Kay ever advise you that they had20 received complaints about the Wandering Dago name?21 A. From Mr. Kay, no. There was some -- I22 think there was a newspaper article in which Eric23 Wing, who was NYRA's PR man, that had mentioned24 that.25 Q. You never heard firsthand any complaints?

Page 331 (Bennett Liebman)2 A. I did not.3 Q. Did you even hear secondhand of specific4 people making complaints?5 A. No.6 Q. The only knowledge you have about7 complaints having been made is from a newspaper8 article?9 A. Yes.

10 Q. Now, what did you do to prepare for your11 deposition today?12 A. Basically talk with Colleen yesterday.13 Q. Was anyone else present at that meeting?14 A. No.15 Q. Have you discussed the fact that you're16 being deposed today with anyone other than your17 counsel?18 A. My wife.19 Q. Anyone else?20 A. Other than that, no.21 Q. You haven't discussed it with anyone in22 state government?23 A. No.24 Q. Did you review documents in preparation25 for your deposition today?


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Page 501 (Bennett Liebman)2 Q. What was her title?3 A. I don't know her exact title, but it's4 like -- it would be like an assistant director of5 state operations or something like that.6 Q. And I don't know if we got a title for7 Fran Reiter. What's her title at this time?8 A. Deputy director of state operations.9 Q. Who was the director of state operations?

10 A. Howard Glaser.11 Q. You did these weekly?12 A. Yes.13 Q. And it's every week until you left?14 A. Yes.15 Q. So then you did one on July 26th on Bates16 Page 5?17 A. Yes.18 Q. You say, "Reaction to the removal has19 been mixed, but a New York Times' article20 highlighted the offensive nature of the term."21 What did you mean by "reaction to the22 removal" had been --23 A. Based on the media reactions, some24 thought it was, you know, an over-restriction of25 free speech rights by NYRA. And some people

Page 511 (Bennett Liebman)2 thought of it as a generally offensive term.3 Q. So you were referring to press reactions?4 A. I was referring to press reaction.5 Q. It says, "The Times has also filed a FOIL6 request for any communications between the chamber7 and NYRA on this issue."8 How did you know that?9 A. Because I was asked to supply documents

10 to the Freedom of Information Law officer in the11 Governor's office.12 Q. What did you do to look for and supply13 documents?14 A. I supplied them with the documents that15 had previously been marked in this case as16 documents 91 and 92.17 Q. Any other documents?18 A. No.19 Q. What did you do to determine whether you20 had documents related to Wandering Dago either in21 response to the FOIL requests or in response to22 our discovery request in this case?23 A. Two questions. For the FOIL request, it24 was, you know, like three days after the incident,25 so I knew exactly what we had and what I had, so

Page 521 (Bennett Liebman)2 that was very easy.3 In terms of the deposition, I basically4 hit my computer for Wandering Dago and to see what5 I have.6 Q. Did anyone else independently go through7 your computer and search for documents?8 A. I don't think so.9 Q. When you say "your computer," what are

10 you referring to?11 A. My computer at work.12 Q. And at the time you were asked to produce13 documents, you were still employed by the14 executive chamber?15 A. Yes, I think so.16 Q. Are your emails retained in another place17 other than on your computer?18 A. No.19 Q. There's no backup in the executive20 chamber for emails?21 A. Not that I know of.22 Q. Are you familiar with a 90-day retention23 policy?24 A. Yes, unfortunately.25 Q. And describe for me what you understand

Page 531 (Bennett Liebman)2 the policy to be.3 A. After 90 days, all our emails -- at 904 days, all our emails are discarded from the5 system.6 Q. That includes emails on your own personal7 computer?8 A. Yes.9 MS. GALLIGAN: Object to form.

10 A. At work, yes.11 Q. What kind of computer did you have at12 work?13 A. My normal PC.14 Q. Was it a laptop?15 A. No.16 Q. It was a desk PC?17 A. Yes.18 Q. And did you take any steps to retain any19 of the documents relating to the Wandering Dago20 episode?21 A. Only after Governor's counsel's office22 advised me to keep them.23 Q. When was that?24 A. I'm not exactly sure, but I think it may25 have been June or July of 2014.


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Page 541 (Bennett Liebman)2 Q. You were aware that litigation had been3 commenced in the summer of 2013 relating to the4 exclusion of the Wandering Dago at Saratoga?5 A. Yes.6 MS. GALLIGAN: Objection to form.7 Q. And you were aware that litigation had8 been commenced with regard to the exclusion of9 Wandering Dago from the Empire State Plaza lunch

10 program?11 A. Yes.12 Q. Did you make any effort, at the time13 those lawsuits were brought, to preserve any14 documents relating to Wandering Dago?15 A. No.16 Q. And you received no indication from17 counsel, any counsel, to preserve any documents;18 is that correct?19 A. That's correct.20 Q. So if there were any documents, they21 would have been erased by virtue of the 90-day22 policy?23 A. Yes.24 Q. Were there such documents that were25 erased by virtue of the 90-day policy?

Page 551 (Bennett Liebman)2 A. 91 and 92 were.3 Q. How did it happen that you were able to4 produce those in this action?5 A. I was not. I think these are from NYRA.6 I had assumed incorrectly that the Governor's7 office would preserve documents that had been the8 subject of a FOIL request, but apparently that was9 not the case.

10 Q. How did you know that?11 A. Because when -- when the request for12 documents for emails came in and it said none, I13 was sort of aghast that these documents were not14 available.15 Q. When you say "the request came in," are16 you talking about the FOIA request?17 A. Not from The Times, no.18 MS. GALLIGAN: He's referring to the19 subpoena.20 A. The subpoena, yeah.21 Q. Okay.22 A. I just could not believe that they would23 not have preserved records that were subject to a24 FOIL request.25 Q. Did you make any inquiries as to what

Page 561 (Bennett Liebman)2 efforts were made to preserve them?3 A. No. But basically, what I said was,4 Wait. A, I can't believe they're not there, but5 NYRA should have them.6 Q. Did you create any emails, other than 917 and 92, relating to Wandering Dago?8 A. Other than the ones that I think are in9 the Monday documents, the Monday after, I don't

10 remember anything beyond that.11 Q. Do you recall whether you sent any12 internal emails to other people in the executive13 chamber about Wandering Dago in 2013 that may not14 have been preserved?15 A. I don't believe there are.16 Q. What inquiries did you make when you17 learned that there were no documents responsive to18 our discovery request in this case?19 A. I'd do anything other than to hit my20 head -- shake my head in disbelief.21 Q. Did you talk to anyone in the executive22 chamber?23 A. The only person I talked I think about24 this was Brad Allen, who was the assistant counsel25 with Racing and Wagering at the time.

Page 571 (Bennett Liebman)2 Q. Did you seek legal advice from Mr. Allen?3 A. No.4 Q. What did you tell Mr. Allen?5 A. I said basically, I can't believe we6 don't have these documents.7 Q. And his response was?8 A. None.9 Q. Did anyone in the executive chamber

10 preserve the communications with regard to the11 FOIA request and the documents produced pursuant12 to the FOIA request?13 A. I have no idea.14 Q. Did you make any inquiry into that?15 A. No, I did not. Yes, in the sense that16 when I could not respond to the subpoena, I asked17 what about -- what about the FOIL request, because18 I thought, you know, I would be able to point to19 these documents. And I was told that they did not20 maintain those documents.21 Q. I'm sorry, did not maintain the documents22 that were produced to The New York Times --23 A. Right.24 Q. Who told you that?25 A. I believe -- I believe Brad Allen did.


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Page 621 (Bennett Liebman)2 Q. Now, the next entree is dated3 September 20th, and on Bates Page 14, you4 reference that the Court heard oral arguments that5 week on Wandering Dago and that you were6 specifically named as the person who told NYRA7 that it might have a problem with the name of the8 truck.9 Again, you got no response from this?

10 A. I got no response from this.11 Q. You got no requests to preserve any12 documents at this time either?13 A. No.14 Q. And no effort was made to preserve15 documents; is that correct?16 A. No.17 Q. Then on September 27th, you have a18 reference to the lawsuit again, and then a19 reference to the Governor's remarks. On Tuesday20 of that week, protesting, ethical slurs and saying21 the statements seemed to have lessoned the local22 media interest.23 You're just commenting there generally on24 the absence of further newspaper articles or news25 stories about the Wandering Dago?

Page 631 (Bennett Liebman)2 A. That's correct.3 Q. Did you have any discussions with anyone4 in the executive chamber about the Wandering Dago,5 other than what you have already testified, before6 the Governor made these remarks?7 A. No.8 Q. Did you have any discussion with anyone9 in the executive chamber after the Governor made

10 these remarks, other than what you have already11 testified to?12 A. I think someone -- I don't remember --13 said, Hey, the Governor really backed you up14 there. But I don't recall anything beyond that.15 Q. Who said that?16 A. I don't remember.17 Q. Now, you have a number of similar18 comments for several weeks. And then on19 January 17th, 2014 -- this appears on Bates Page20 66 -- you say, "Federal court case against NYRA21 will largely proceed after the district court22 judge refused to dismiss the claim against NYRA."23 Do you see that?24 A. Yes.25 Q. Did you get any comments or reaction from

Page 641 (Bennett Liebman)2 that?3 A. No.4 MR. CARPINELLO: Let's have this marked.5 (Plaintiff's Exhibit 96 was marked for6 identification)7 BY MR. CARPINELLO:8 Q. You have what's been marked as9 Exhibit 96. Do you recognize this document?

10 A. I was shown this document by counsel11 yesterday.12 Q. Were you shown it in redacted form or13 were you shown it in the original form?14 A. I think I saw an original.15 MS. GALLIGAN: I believe that's true.16 Q. Did this document refresh your17 recollection with regard to the retention policy?18 A. No.19 Q. And that's because you knew what the20 retention policy was?21 MS. GALLIGAN: Object to form.22 You can answer the question.23 A. The memo is dated November 19th, 2007 to24 me, when I was working at Albany Law School, so it25 didn't refresh any memory because I had not seen

Page 651 (Bennett Liebman)2 this memo until yesterday.3 Q. You were not an employee of the executive4 chamber when you received this memo in 2007?5 MS. GALLIGAN: Object to form.6 A. On the purported date. In fact, I do not7 ever remember seeing this memo.8 Q. Do you have any idea why you would have9 gotten the memo with regard to retention policies?

10 Let me ask you this question: Do you11 believe that you got this in November of 2007?12 A. I did not get it in 2007.13 Q. Did you get it when you joined the14 executive chamber?15 A. I don't believe I got it when I joined16 the executive chamber.17 Q. Is it your belief that you never received18 this document?19 A. It's my belief that I never received this20 document.21 Q. Do you have any explanation for the fact22 that it appears to be dated November 19th, 200723 and addressed to you?24 A. I do not know.25 Q. Did you make any inquiries to determine


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Page 661 (Bennett Liebman)2 why you would reportedly be receiving a document3 date November 19th, 2007 when you were not an4 employee of the executive chamber?5 A. I can only guess that this is the date6 that they announced their 90-day retention policy7 in the Governor's office.8 Q. And do you recall that you ever received9 a memo like this during your tenure at the

10 Governor's office?11 A. I do not recall it. I did learn about12 this policy by -- in 2011, when, having been13 accustomed to using my email inbox as a filing14 system, suddenly found my older emails gone. And15 I went to the -- to the computer services office16 and was told about the 90-day retention period.17 Q. But you don't believe you've ever18 received a written document?19 A. I do not remember ever receiving a20 written document.21 MR. CARPINELLO: Colleen, what's the22 basis for the redactions?23 MS. GALLIGAN: They relate to things24 other than the email policy. It's a document25 that relates to operation of the computer

Page 671 (Bennett Liebman)2 systems that are totally not relevant.3 I provided this with Judge Tress; he4 directed me to provide your office with the5 executive chamber's email retention policy,6 so I redacted everything that was not7 responsive to that.8 MR. CARPINELLO: Can you tell me where9 the document came from?

10 MS. GALLIGAN: It was provided to me by11 the executive chamber when I specifically12 asked them to provide me with a copy of the13 email retention policy that was in place14 during Mr. Leibman's tenure.15 BY MR. CARPINELLO:16 Q. To the best of your recollection, you17 never saw this document until you were preparing18 for deposition today?19 A. To the best of my recollection, yes.20 Q. And in fact, in 2011, you were unaware of21 the policy?22 A. I learned of the policy -- when I23 started, I was not aware of the policy. I learned24 after my emails started getting evaporated after25 90 days.

Page 681 (Bennett Liebman)2 Q. Did you inquire as to whether there was3 any method by which you could retain emails?4 A. I actually did saying, What do I do? And5 the only thing they said was, You really can't.6 But what you can do, if you really need to retain7 it, is make a copy of it and put it in a word8 document.9 Q. Did you start doing that with regard to

10 certain documents?11 A. I really didn't.12 MS. GALLIGAN: George, I can represent13 to you that I did inquire as to the date, and14 I was advised that it was a typo. So for --15 whether that's helpful or not, that's --16 MR. CARPINELLO: Do I have to take a17 deposition to find out what the date was?18 MS. GALLIGAN: I don't know that the19 actual date is relevant because, really, it's20 provided for -- you know, there was a21 question as to what the policy was and why22 Mr. Leibman's emails were not still on his23 computer, so it was provided to me to answer24 that question as to what the policy is.25 MR. CARPINELLO: Unless the document was

Page 691 (Bennett Liebman)2 created in response to your inquiry.3 MS. GALLIGAN: It's not my belief that4 that's what -- that it was created in5 response to my inquiry. But I did inquire as6 to why the date -- you know, why it has an7 '07 date on there, and I was just advised8 that it was a typo.9 So I don't think there's any question as

10 to what the policy was at this point. I11 think Mr. Liebman is confirming that, when12 his emails starting disappearing or he13 started noticing they were disappearing, he14 inquired and he was advised of the deletion15 policy.16 BY MR. CARPINELLO:17 Q. Were you aware of the fact that the18 Wandering Dago had been advertised in various19 brochures or releases that the Saratoga Race Track20 or NYRA had issued prior to the opening day in21 2013?22 A. I was not aware of that.23 Q. Are you aware of any regulatory24 supervision that the Office of General Services25 has with regard to any of the NYRA facilities?


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Page 701 (Bennett Liebman)2 A. NYRA -- OGS does permitting at all video3 lottery facilities, and OGS is the landlord for4 NYRA at the tracks.5 Q. You testified that OGS is the landlord at6 Saratoga?7 A. Yes.8 Q. Is that because the state owns the land?9 A. Since 2008, it's clear that the state

10 owns the land.11 Q. And who at OGS has responsibility with12 regard to its role as landlord at the Saratoga13 track?14 A. I don't know.15 Q. Can you identify any OGS officials that16 have any involvement with regard to OGS' role as a17 landlord at the track?18 A. I don't know.19 Q. Have you ever dealt with any OGS20 officials with regard to the operation of the21 Saratoga track?22 A. In 2011, I think in maybe the last summer23 or early fall, I had convened a meeting of people,24 also with the criminal justice people, in the25 Governor's office regarding fire safety at the

Page 711 (Bennett Liebman)2 NYRA tracks, because I've always been concerned3 about the issue of fire safety at Saratoga.4 I know OGS people were at that meeting,5 although it turned out that fire safety was under6 the purview of Homeland Security rather than OGS.7 I thought it might have been under the OGS, but we8 were there trying -- basically trying to make sure9 that the race track was not a fire trap.

10 Q. Who did you meet -- who from OGS was11 present at that meeting?12 A. I don't remember.13 Q. Do you know whether anyone at the race14 track or NYRA had any conversations with anyone at15 OGS about Wandering Dago at any time?16 A. I wouldn't know.17 MR. CARPINELLO: Let's take a short18 break.19 (Break taken)20 MR. CARPINELLO: Ready?21 BY MR. CARPINELLO:22 Q. Mr. Liebman, I think you testified23 earlier that you had sent -- you said you sent an24 email around the executive chamber saying, I was25 the state official that was quoted in some

Page 721 (Bennett Liebman)2 article.3 MS. GALLIGAN: Object to form.4 Q. Did I recall correctly?5 A. Not so much -- in general, yes, but it6 wasn't the person quoted, but that I assumed that7 I had to be the official referred to as talking to8 NYRA about the Wandering Dago.9 Q. And you sent this email to whom?

10 A. My best recollection is that I sent it to11 Howard Glaser. I sent it to -- a copy to Linda12 Lacewell and probably a number of people in the13 Governor's press office.14 Q. And that email we don't have here today;15 right?16 A. You do not have it.17 Q. And you testified that you learned in18 2011 that your emails were deleted according to a19 policy?20 A. Yes.21 Q. Did you make any inquiry as to whether22 they could be retrieved on a hard drive or some23 server or some other method?24 A. In 2011, when I asked them, What do I do25 to retain this, all I was told by the people in

Page 731 (Bennett Liebman)2 the computer services unit was that I needed to3 make a copy of it and put it on a word document.4 Q. Well, I'm asking a slightly different5 question. Other than a method of retaining6 something that's already on your computer, did you7 inquire as to whether there was a way of8 retrieving emails that had been deleted?9 A. No. Actually, I did. I said, How do I

10 find this document? And they said, Sorry, it's11 gone.12 Q. They said there was no way to retrieve13 it?14 A. They said I couldn't retrieve it.15 Q. Who did you talk to about the deletion of16 your emails?17 A. One of the people in the computer18 services unit. A number of people who work for19 Thomas Irvin. I don't remember who I spoke to in20 particular.21 Q. Thomas Irvin is whom?22 A. Is the chief of computer services in the23 Governor's office.24 Q. The Governor's office has its own25 computer services office?


Exhibit C


Exhibit D


2*6


Exhibit E


carpinello letter

Documents