Judge Andrew Baxter Misstatements of Fact & Defs's Deciet (Doc 148) NDNY
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Desiree YaganJudge Andrew Baxter Misstatements of Fact & Defs's Deciet (Doc 148) NDNY
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Desiree YaganCase 5:18-cv-00837-GLS-ATB Document 148 Filed 08/24/23 Page 1 of 4
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JEFFREY R. PARRY, ESQ., PARTNER 1 1 So. MAIN STREET • PO Box 173 JARROD W. SMITH, ESQ., PARTNER
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August 23, 2023
Hon. Gary L. Sharpe
James T. Foley U.S. Courthouse
445 Broadway
Albany, NY 12207
Hon. Andrew Baxter
James M. Hanley Federal Building & U.S. Courthouse
100 S. Clinton St.
Syracuse, NY 13261 Via ECF
RE: Glover v. Onondaga County, et al.
Docket No: 5: 18-cv-00837
Dear Sirs,
It is, very literally, impossible to describe my surprise and confusion upon
receiving your respective text orders in response to Plaintiffs motion pursuant to
FRCP Rules 37 and 56. While we are still analyzing the Court's decisions, I must
very respectfully conclude that the Court was somehow misinformed. Therefore,
after considerable thought and with more than a little apprehension, I feel it
necessary to defend my own intentions in bringing that motion. To be clear, I am
carefully reviewing the law as it applies to my client's position going forward but,
in the meantime, I urge you to reconsider your previous decisions in light of the
following.
Very simply, I made the motion to compel at the time and in the manner I
did because Judge Baxter told me that it was appropriate, because the law allows it
and because the grievous discovery infractions by the defendants make this
necessary to adequately defend against the pending summary judgment motion and
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Case 5:18-cv-00837-GLS-ATB Document 148 Filed 08/24/23 Page 2 of 4
proceed to trial.
Judge Baxter is correct in that I have doggedly pursued missing documents
since the inception of this case. Very respectfully however, at his direction no
motion to compel discovery was filed in favor of encouraging some degree of
cooperation from the defendants. As such, there is nothing in the record as to what
is missing or the efforts to acquire it. Indeed, Judge Baxter stated; "I do not have
the definitive handle on what spoliation issues are going to prove to be relevant
and central to your claims other than the missing arrest report". In point of fact
however, the arrest report was but one document of many that was never presented
and there is no way at present to show this to the Court or on appeal.
Judge Baxter directed as follows.
Okay. So I guess the point is, Mr. Parry, that if
you make your -- you make your cross motion for spoliation and
if you think there is information that you do not have available
that was not obtained during the discovery process for
justifiable reasons, then you can make a claim under Rule 56(d)
that you should be given additional time to gather that
information before responding to the summary judgement motion.
Dkt 137 at 10; also see Plaintiffs Memorandum of Law at 21.
If I have done anything here it is that I followed directions.
I must respectfully point out that the above language was included in
Plaintiff's Memorandum of Law specifically because I was not comfortable with
the above procedure. For that reason, if was followed by the words; "[v}ery
respectfully, I would have preferred that this was done at an earlier juncture and, I
ask the Court to keep in mind that Judge Baxter deferred it to this time frame
although I requested it several times previously."
Nevertheless, this is consistent with the statute Judge Baxter alludes to. Once
again however, as I was not comfortable with the ordered procedure and was
anticipating the possibility of later controversy, I specifically included a complete
rendition of the statute in my brief.
(d) When Facts Are Unavailable to the Nonmovant. If a nonmovant
shows by affidavit or declaration that, for specified reasons, it cannot
Case 5:18-cv-00837-GLS-ATB Document 148 Filed 08/24/23 Page 3 of 4
present facts essential to justify its opposition, the court may:
(1) defer considering the motion or deny it;
(2) allow time to obtain affidavits or declarations or to take discovery;
or
(3) issue any other appropriate order.
USCS Fed Rules Civ Proc R 56
Thereafter I went so far as to include an example of withheld evidence.
However, and citing only one example, defendant Sharon MacDonald
was likely the last one to view the accusatory instruments and she
clearly sought authority to somehow dispose of them. Affirmation of
Jeffrey Parry at Exhibit 8, the email of Sharon MacDonald.
This passage refers to an email acquired by subpoena from the Onondaga
County District Attorney's Office while the email itself was never disclosed, or
even acknowledged by the defendants. Very clearly, it can be proved that
defendants knew of the many documents and what happened to them.
I return to my previous points, there is absolutely nothing on the record to
memorialize the breadth of the discovery violations in this matter, the character of
the documents withheld or who destroyed them. Furthermore, there has been no
effort via motion to identify further documents beyond what we uncovered via our
own initiative and investigation. Most importantly, for appellate purposes, there is
nothing resembling a final order nor, can there be because nothing was
memorialized. Plaintiff would be greatly encumbered in answering defendant's
summary judgment motion just as the guilty parties intended.
I therefore did exactly what Judge Baxter directed and as the statute
provided.
Finally, I wish to respectfully address the personal verbiage contained in the
Court's text order. Very emphatically, I do not engage in "antics." I have not done
so in the Murphy case nor have I done so in Glover. Everything I have done before
this Court and every court I have appeared in in my several decades of experience,
every case or issue, every argument made, was done conservatively, professionally
and after appropriate consideration, investigation and research. I assure the Court
that I am an ethical man and frivolities do not emanate from my practice.
I urge the Court to reconsider its previous text order. As I have stated, I
Case 5:18-cv-00837-GLS-ATB Document 148 Filed 08/24/23 Page 4 of 4
believe it arose from a misinterpretation. However, Ms. Glover should not suffer or
otherwise be denied her rights when her case was pursued in good faith.
Thank you for your kind consideration of this matter. Should the Court
require further information I hope you will feel free to call or I will be glad to
appear if that is more appropriate.
submitted,
