Case 7:14-cv-02995-KMK-LMS Document 141 Filed 01/12/17 Page 1 of 2 RICE & RICE ATTORNEYS AND COUNSELORS AT LAW 270 NORTH AVENUE, SUITE 202 NEW ROCHELLE, NEW YORK 10801 4. ROGER RICE, ESQ. Phen: JARED R.RICEESO, co1a)a33 MERTON PESSOA, ESQ. Fas (ora) 433.9291 January 12, 2017 The Honorable Lisa Margaret Smith United States District Court 300 Quarropas Street White Plains, NY 10601 Re: Melvin v. County of Westchester, et al., 14-ev-2005 (KMK. Dear Judge Magistrate Smith: Please be advised that a discovery dispute has arisen between the Plaintiff and at least one of the Defendants in the above referenced matter. At issue is Plaintiff's demand for a heretofore concealed and possibly destroyed Special Report authored by Westchester County Correction Officer Kevin Grant ("Grant”), Astonishingly, it has been discovered at Grant’s deposition that a Special Report regarding the death of Rashad MeNulty purportedly authored by Grant and tumed over during discovery is inauthentic: a copy of said inauthentic Special Report is hereto attached as Exhibit 1. Plaintiff had every reason to believe that the inauthentic Special Report was from Grant. Indeed, Westchester County Department of Correction Deputy Commissioner Justin Pruyne (“Pruyne”) testified at his deposition that he betieved that Grant wrote the produced report. (Page 62 of the Pruyne deposition is hereto attached as Exhibit 2.) Similarly, Westchester County Correction Captain Francis Delgrasso (“Delgrasso”) testified at his deposition that the produced Special Report was from Grant and wasCase 7:14-cv-02995-KMK-LMS Document 141 Filed 01/12/17 Page 2 of 2 accepted by him as part of his supervisory investigation, (Pages 62 and 63 of the Delgrasso deposition are hereto attached as Exhibit 3.) However, at his deposition, Grant disclosed that he typed and signed a separate, authentic, and now missing Special Report on the moming of the MeNulty death on January 29, 2013, After submitting this report to Delgrasso, Grant averred that he never retained a copy. He further testified that when the inauthentic Special Report was presented to him at his residence for signature on February 14, 2013, he refused to sign it because it was not the Special Report that he submitted: Grant recalled that his authentic report had more information and details than the inauthentic version, (Pages 25-46 of the Grant deposition are hereto attached as Exhibit 4.) Due to Defendant-County of Westchester’s wilifil misconduct in provjding Plaintiff with a misleading Special Report, she has been unduly prejudiced by having to pursue her claims without having all the genuine records, Consequently, further depositions may need to be conducted. Pursuant to your Honor’s pre-trial discovery rules, after attempting to resolve this, issue to no avail with John Murtagh Esq., counsel for Defendants, it became our Getermination that Court intervention is necessary to preserve the integrity of this judicial process. Accordingly, Plaintiff respectfully requests permission to file a spoliation motion for sanctions, ‘Thank you tor your attention in this matter. Respectfully submitted, Jared R. Rice (IR 3885) ce: Allattomeys via ECFCase 7:14-cv-02995-KMK-LMS Document 141-1 Filed 01/12/17 Page 1 of 2 WESTCHESTER COUNTY DEPARTMENT OF CORRECTION VALHALLA, NY COMPLETEIF APPLICABLE a NYS.INCIDENT # INFORMATIONAL = OPS.COMPE r “ULOFFICER NAME ij SPECIAL REPORT Kevin Grant #1429 DATE January 28,2013 OFFICER NAME ; suBEcT Code Signals — DATE OF INCIDENT Jan 29,2013 TIME 1G LOCATION 3 West WHO iUst gersons) {Captain Francis Delrossa, CO Kevin Grant 4B, CO Anthony Solo #7 C0 Dominick Manocchi #1027, CO Taras Saczur #1219, BIN John Boggl RIN Pauleite Smith RN Dlanne Jordan Invvale Rashad McNulty Wet 5 BATT ST ‘WHAT (OfcersRegon) AT appvelnateyO200 while conducing asin tur nate Rhad WONURY NAVZSTO NO TBS end inmate MeNolty 0 the cine [then notified \was experiencing chest pains. Inotied the Booting nurse WN Boggl whe tated Captain DelGrosio ofthe stuation. Inmate McNulty was escorted to Booking by CO Sota, At approximately O823 Inmate McNulty ‘7s eicored Back toe block by COEoieand CO Manacch_ As soon as ate Mul epped Flot Dod he vated etre ‘as feeling czy, Inmate MeNuly started te wobble and G0 Seto and CO Manocchl slowly guided him tothe ground. At - _anproxratey 045] aie In code sigyl3 to aia corto, RUN Boag PN Smith and BN Jorden responded. Copan DeGRTS respended. inmate McNulty was laying face downn the ground, RUN Sith ated inmate MeNulyfostand up and he id not While inmate McNulty was laying on the ground WN Smith took hs pressure and WN Boggi took his pulse. RNSmiTA Fespord ‘AN Smith then sated sale fim downtothe dinie WNSah {5ked RN Bogal"what do you got and he replied "not good then told Inmate MeNuly to get up and get inthe wheclchalr your gain tothe clini inmate McNulty got up and sat nthe isto ong tobe fooled, FIN Smith took ‘shveelchait, RUN Smith then turned to Captain DelGrosso and statea'Tve been doing inmate yrs gen le ees een whey advhcan Behe ech wah G SUPERVISORY ACTION vamt _ Copdin France Delges ero. AGian(S Ar shoe’ Ce a Heced Cone, Bock Ur enlace eoCase 7:14-cv-02995-KMK-LMS Document 141-1 Filed 01/12/17 Page 2 of 2 WESTCHESTER COUNTY DEPARTMENT OF CORRECTION VALHALLA, NY SPECIAL REPORT PAGE2 OFFICER NAME onTE SUBJECT Wheeled to is cell nd when he wentini locked his cell. At approximately G44S went down the tet tocheckon lnmate McNulty and he was siting on the tllet asked him how wat he feeling and he stated "never felt ike this before, At ‘pproximately 0450] heard moaning coming fam the CSide tier and the inmates caling for O. When wert dovn the er to ‘check on inmate McNulty he was laying on the bed moaning. lasked him how was he feeling agaln and he sated he was in pain 3- Atapproximately 05001 went “Atapprotimately 435 | went down the ter again and inmate MeN was sting onthe tol a down the tier to conduct a security tour and inmate MeNulty was aying in the bed again meaning, [called Hisname 3 times and he {id not respond tome, observed that he was stil breathing, [then called the cline and spoke to RIN Sth and tod erthat | ‘observed that iomate McNulty was Breathing but he was net responding o me calling out to im. RIN Smith stated that she was coming up. | notified Captain DelGrosso. RN Smith responded and ater observing Inmate MeNulty she stated she wanted to go in the cell |then noted Captain DelGrosso and he told me to have C0 Seczur come over from 3Eaat and asset me. When RIN Smith and. went into the cell she stated to me tothe code, Ithen ran dawn the tler and calle In code signal 3 Centra Central. | then went back the cell and R/V Smith eked me ta help her to get inmate MeNuly tothe ground, We id mate McNulty the ‘mith handed me her phone and, {old me to ca911 in which) did. Captain DelGroso responded and teok ove the phone eal. RUN Bagel responded win libritaror which was administered to Inmate McNulty, Medical taf eartinued CPR untll EMS arived and tock over. At ‘ground using his matiress. RN Jordan responded and both UN's started ta adminis approximately 0605 EMS left with inmate MeNuly, ms SUPERVISORY ACTION (CONTINUED) = NAME DateCase 7:14-cv-02995-KMK-LMS Document 141-2 Filed 01/12/17 Page 1 of 1 Melvin vs Westchester 30()(6) Justin Pruyne 12/06/2016 1 - Justin Pruyne - 2 10, document entitled Westcester County 3 Department of Correction, dated 1/29/13, 4 consisting of two pages, was marked for 5 identification as of this date.) 6 a. On this form, Plaintiff's Exhibit 10, 7 do you know who provided the contents for this form? 8 A When you say "contents," do you mean -~ 9 Q. The information. | 10 A. Who wrote this? il Q. Correct, who wrote this? 12 A. Or typed it. | | 18: Q. Who wrote it? | 14 aA. I do not. | 15 Q. At the top under the words "Special | 16 Report," and it says, "Officer's name, Kevin Grant, 17 Number 1429," what would that indicate? 18 A. Customarily, that would indicate the 19 author of the repo 20 Q. Do you believe that Kevin Grant wrote 21 this report? 2 A. I believe so, as it has his name on it. 23 Q. Okay. Do you believe that Kevin | 24 Grant's number is 1429? | 25 aA I have no reason not to believe that. Ti / POINT _ 441 Lexington Avenue, 2nd Floor Page 62 HotTAB OTE New York, NY 10017 | (855) 938-7466Case 7:14-cv-02995-KMK-LMS Document 141-3 Filed 01/12/17 Page 1 of 2 Melvin vs Westchester 30(b)(6) Francis Delgrasso 12/07/2016 Melvin vs Westchester 30(b\(6) Francis Delgrasso 1210772016 Hi - Francis Delgrasso - 2 Form? 3 A The Inmate Statement Form does not go7 4 but the inmate was going to be speaking directly to 5 the medical staff, so it is not necessary. This is 6 just for our records as to why he was sent to 7 Medical. 8 Q. Okay. I'm now going to have you take a 9 look at what was previously marked as Plaintiff's 10. 10 A (Referring.} 1 Q. You previously indicated in your 12 statement that special reports from Officer Grant 13 were attached. Is Plaintiff's 10 one of those 14 special reports? 15 BR Yes. 16 Q. And at the bottom where it lists name 17 under supervisory action, it lists Captain Francis 18 Delgrasso; is that you? 19 A Yes. 20 Q. And did you write that? Bi. A Yes. 22 Q And did you also write the date, 29 23 January 13? 24 A. Yes. 25 Q. And did you also write, "See attached PROS o£ POINT Saaitockinnonon anassona rss Page 62 coomstvortat New York, NY 10017 | (855) 938-7466"Case 7:14-cv-02995-KMK-LMS Document 141-3 Filed 01/12/17 Page 2 of 2 Melvin vs Westchester 30(b)(6) Francis Delgrasso 12/07/2016 Melvin vs Westchester 30(b)(6) Francis Delgrasso _ 1 - Francis Delgrasso - 2 summary report for endorsement"? 3 A Yes. 4 Q. What does "endorsement" mean? 5 A. Endorsement means that you read and 6 acknowledged the facts in the report. : Q. So the purpose of your signing this 8 special report, or you putting your name on this 9 report, is what? 10 AL Basically, that I've accepted the 11 record as part of my investigation. 12 MR. RICE: If I can have this marked as | 1 Plaintiff's 16. 14 (Whereupon, Plaintiff's Exhibit Number 15 16, Special Report dated 1/29/13 of Officer 16 Kevin Grant, was marked for identification V7 as of this date.) 18 MR, NOVICK: Give me one second. }19 Q. Are you familiar with what's just been |20 marked as Plaintiff's 16? 21 A. Yes. 22 Q. What is that? | 23 A. That is Officer Grant's original report 24 submitted at the beginning of the incident. 25 Q. And what was previously provided, I er bexington avenue, 211906 1 Ne MoekiiNoROR SHS SIA RSG Page 63 : POINT jor voici loots eso 938465Case 7:14-cv-02995-KMK-LMS Document 141-4 Filed 01/12/17 Page 1 of 22 Melvin vs County of Westchester 30(b)(6) C.0. Kevin Grant 01/04/2017 1 ~ C.O. Kevin Grant - 2 A. Procedure. 3 a. And the procedure is what, what 4 procedure are you referring to? 5 A. These three go together. 6 Q. Okay. 7 A. So if there is an inmate injury, you 8 have to fill out a Special Report. And if you notice 9 on the Inmate Injury it says, “Inmate Statement attached." Q. Inmate Statement, in addition to the Special Report? Bx Yes. 14 Q. Got you. 15 I'm asking you to look at Plaintiff's 16 Exhibit 10. Are you familiar with this document? 17 AL Can you repeat that question. 18 Q. Yes. Are you familiar with this 19 document that we are looking at that's identified as 20 laintiff's 10? Zz A. Familiar, how? 22 Q. Have you seen this document before? 23 A. Yes. 24 bs When did you first see this document? 25 AL February 14th. : * POINT __ 44! Lexington Avenue, 2nd Floor Page 25 foun 8 New York, NY 10017 | (855) 938-7466Case 7:14-cv-02995-KMK-LMS Document 141-4 Filed 01/12/17 Page 2 of 22 Melvin vs County of Westchester 30(b)(6) €.0. Kevin Grant 01/04/2017 1 - C.0. Kevin Grant - 2 ae 2013? 3 A. Yes. 4 Q. Did you fill out this document? 5 MR. NOVICK: Objection to form. 6 Q. Did you author this document? 7 MR. NOVICK: Objecticn. 8 MR. RICE: Can he answer? gs MR. NOVICK: Yes. 10 A. Now Q. Do you know who authored this document? 12 A No. 13 Q. So where it reads, "At approximately 2 14 o'clock, while conducting a security tour, Inmate 15 Rashad McNulty stated to me that he was experiencing 16 chest pains," you did not write that? 17 MR. NOVICK: Objection. 1 You can answer. 19 A. I didn't see this document until 20 February 14. 21 Q. My question was, that first sentence 22 that I read to you, did you e that sentence? 23 A. It's typed. 24 Q. Did you type that sentence? 25 A. I did not type anything on this POINT _ 441 Lexington Avenue, 2nd Floor Page 26 Earcte& New York, NY 10017 | (855) 938-7466Case 7:14-cv-02995-KMK-LMS Document 141-4 Filed 01/12/17 Page 3 of 22 Melvin vs County of Westchester 30(b)(6)C.O, Kevin Grant 01/04/2017 1 - €.0. Kevin Grant - 2 document. 3 Q. Do you know who typed it? 4 A. No. 5 Q. Did you type anything within this document? A. didn't see this Special Report until ou February 14th. © Q. I understand that. But I'm asking i 10 you typed anything on this document. ul MR. NOVICK: He is ng you for a 12 "yes" or "no." - 13 Bia Did I type this document? 14 Q. That's my question. at A. No. 16 Q. And is this a Special Report that we 17 are looking at? 18 A Yes. 19 °. And where it says, "Officer name, Kevin 20 Grant, Shield Number 1429," is that you? 21 A. Yes. 22 Q. And would that indicate that this 23 your Special Report? | | 24 MR. NOVICK: Objection. 25 i. Can you rephrase that question? © POINT _ 441 Lexington Avenue, 2nd Floor Page 27 weree'ie New York, NY 10017 | (855) 938-7466Case 7:14-cv-02995-KMK-LMS Document 141-4 Filed 01/12/17 Page 4 of 22 Melvin ys County of Westchester 30(6)(6) C.O. Kevin Grant 1/04/2017 1 - ¢.0. Kevin Grant - 2 ie Where it says, "Officer's name, Kevin 3 Grant, Shield 1429," under Special Report, would that 4 indicate this is your Special Report? 5 MR. NOVICK: Objection. 6 MS. DEVASIA: Objection. 7 MR. NOVICK: The form belongs to & Department of Corrections, correct? 8 MR, RICE: I don't know. 10 MR. NOVICK: He is a correction officer al employed by the Department of Corrections. MR. RICE: All right. MR. NOVICK: Did you not know that the 14 report -- 15 MR. RICE: Let's go back. 16 Can we look at Plaintiff's 16 where it 17 says "Special Report." 18 AL Uh-hum. 19 Q. Okay. Does it say, “Kevin Grant, 20 Shield Number 1429"? 21 As Yes. 22 Q. Why does it say that underneath Special 23. Report on Plaintiff's 16? | 24 MR. NOVICK: Objection. 25 MS. DEVASIA: Objection. POINT | 441 Lexington Avenue, 2nd Floor Page 28 ‘New York, NY 10017 | (855) 938-7466Case 7:14-cv-02995-KMK-LMS Document 141-4 Filed 01/12/17 Page 5 of 22 Melvin vs County of Westchester 30(b)(6) C.0. Kevin Grant 01/04/2017 - C.0O. Kevin Grant - MR. RICE: Just a point of clarification, are there objections from two attorneys? MR, NOVICK: There is only one objection on the record. MR. RICE: I hear two objections. 1 just want to understand, are we having multiple attorneys doing objections for purpose of the deposition? MR. NOVICK: I'm objecting. MR. RICE: I hear another voice. MR. NOVICK: She is whispering to me. MS. DEVASIA: TI kind of whispered to him. MR. RICE: You are talking. MS. DEVASIA: I am allowed to talk, I am allowed to whisper to Ted. MR. RICE: I spoke to Mr. Murtaugh yesterday about the deposition, and there was a court conference with Judge Magistrate Smith, and on that conference call she informed, Justice Magistrate Smith, that it was her understanding that his law firm, meaning you and he, would be POINT __ 441 Lexington Avenue, 2nd Floor PONT rome m1 ei 9 cs Page 29Case 7:14-cv-02995-KMK-LMS Document 141-4 Filed 01/12/17 Page 6 of 22 Melvin vs Coumty of Westchester 30(6)(6)C.0. Kevin Grant 01042017 1 = €.0. Kevin Grant - 2 the only attorneys making objections, would 3 be the only attorneys here talking on 4 behalf of Kevin Grant. 5 If T misunderstood that ~~ 6 MR. NOVICK: No, you aze misstating 7 what is occurring, that's what you are 8 doing. You are misstating what's occurring | 9 because she said to me under her breath or }10 whispered. ul MR. RICE: Tt was not a whisper. 12 “wi. NOVICK: Maybe not when you are 13 sitting across the table; but she is 14 whispering, and I want the record to be 15 clear on that. You didn't hear her talk | 16 out loud. 7 MR. RICE: I did, 18 MR. NOVICK: You did not. 19 MR. RICE: That's what I'm trying to 20 explain to you. | 21 MR. NOVICK: I disagree with you. 22 MR. RICE: You disagree with what I 23 heard? 24 MR. NOVICK: Yes, because she di 25 speak at any volume cther than a whisper. ? POINT __ 441 Lexington Avenue, 2nd Floor Page 30 Eo New York, NY 10017 | (855) 938-7466Case 7:14-cv-02995-KMK-LMS Document 141-4 Filed 01/12/17 Page 7 of 22 Melvin vs County of Westchester 30(6)(6) C.0. Kevin Grant 01/04/2017 1 - C.0. Kevin Grant - 2 And apparently I'm not the only one who has 5 objections to the form of your questions. 4 MR, RICE: That's clear because two of 5 you made an objection. 6 MR. NOVICK: Right, and I'm just making 7 @ point out of the many other depositions 8 we have had, and my objections are to form, 9 which confirms my prior objections. Your 10 question was objectionable. ua MR. RICE: That's fine, that's why you 12 “are here. : 13 MR. NOVICK: And 1 objected 4 simultaneously to her whisper. as So if you could just re-ask the 16 question, and we will move on. 7 MR. RICE: Okay. you repeat my 18 last question, please. 19 (The court reporter read back the last 20 question as requested.) 21 MR. NOVICK: So, again, objection. 22 You can ask a question "Do you know 23 why?" You're asking him to speculate if ne 24 does not know. 28 MR. RICE: We don't know if he knows or POIN' , a POINT 441 Lexington Avenue, 2nd Floor Page 31 POU = New York, NY 10017 | (855) 938-7466Case 7:14-cv-02995-KMK-LMS. Document 141-4 Filed 01/12/17 Page 8 of 22 Melvin vs County of Westchester 30(b)(6) C.O. Kevin Grant 01/04/2017 1 - €.0. Kevin Grant - 2 does not know. 3 MR. NOVICK: Your question has no 4 foundation, so why don't you go one step at S a time before you take this quantum leap 6 and -- 7 MR. RICE: Quantum leap? 8 MR. NOVICK: That's what you are doing. 9 MR. RICE: All right, we will take it 10 slow. 11 MR. NOVICK: You know, we will agree 12 that next to "Officer Name" it says "Kevin 13 Grant, 149." 14 MR. RICE: "1429." 1 MR. NOVICK: -- "1429," and the 16 documents speaks for itself. a7 MR. RICE: No, it does not, it does not 18 speak for itself. We are looking at | 19 Plaintiff's 10 with his name there, he is 20 telling me he did not write this, so it 21 does not speak for itself. 22 MR. NOVICK: So you can ask him. 23 MR. RICE: You can't tell me what to 24 ask him. 25 MR. NOVICK: I'm not going to let you OINT _ 441 Lexington Avenue, 2nd Floor Page 32 POINT sce von Mi toh ean eeCase 7:14-cv-02995-KMK-LMS Document 141-4 Filed 01/12/17 Page 9 of 22. Melvin vs County of Westchester 30(b)(6) C.0. Kevin Grant 01/04/2017 1 - C.0. Kevin Grant - 2 cause him to guess or speculate. 3 MR. RICE: I'm not asking him to guess. 4 MR. NOVICK: Ask him do you know why -- MR. RICE: Don't tell me what to ask 6 him. 7 May I continue, please? 8 MR. NOVICK: Yes. 8 MR. RICE: Thank you. 10 EXAMINATION BY MR, RICE: (Cont'd) 14 Q. On Plaintiff's 16, under “Special 12 Report," did you write "Kevin Grant, Number 1429"? 13 AL Yes. 14 Q. why did you write that? Re I filled out that Special Report. Q. Okay. And under, or next to the 17 bracket "Officer Name," is that the officer who 18 filled out the Special Report? 19 MR. NOVICK: Objection to form. | 20 A. That's handwriting, that's my | 21 handwriting. | 2 Q. Next to where it says "Officer's Name," 23 prior to your handwriting or you writing this in, did | 24 you that in because you were the author of this p 25 Special Report? | ' POIN' t POINT __ 441 Lexington Avenue, 2nd Floor Page 33 . 288" New York, NY 10017 | (855) 938-7466,Case 7:14-cv-02995-KMK-LMS Document 141-4 Filed 01/12/17 Page 10 of 22 Melvin vs County of Westchester 30(b)(6) C.0. Kevin Grant 0104/2017 1 - C.0. Kevin Grant - 2 AL Yes. 3 Q. Thank you. 4 On Plaintiff's 10, where it says 5 “Officer's Name, Kevin Grant, 1429," do you know why | 6 your name is there? 7 A No, 8 o. Okay. You say you first saw this 9 document on February 14th, 2013; is that correct? 0 AL February 14, 2013, yes. 11 Q. How did you come to first see this 13 A. It was brought to my residence. 14 Q. By whom? AL Sergeant -- at that time, Sergeant 16 Cusma, C-u-s-m-a, and Sergeant Pietrinco, 17° P-i-e-t-r~i-n-c-o. 18 Q. And they hand-delivered this document 19 to you at your residence? 20 A They brought it to me. 21 . Do you know why they brought this to 22 you? 23 MR. NOVICK: Objection. | 24 A. They asked me to sign it. | 25 Q. Did you sign this document? | i © POINT ,, #41 Lexington avenue, 2nd Floor Page 34 mess New York, NY 10017 | (855) 938-7466,Case 7:14-cv-02995-KMK-LMS Document 141-4 Filed 01/12/17 Page 11 of 22 Melvin vs County of Westchester 30(b)(6) C.0. Kevin Grant 01/08/2017 1 - C.0. Kevin Grant - 2 A. No, sir. 3 Q. Why not 4 A. Because it wasn't the Special Report 5 that I submitted. 6 MR. NOVICK: There is = different 7 subject. If you look under the name, one 8 says "Code 3," and the other one says 9 "Inmate." 10 MR. RICE: All right. ct MR. NOVICK: Okay. 12" a. At the time when those two officers 13. came to your residence, did you know who typed this 14 Special Report? : 15 A. No. 16 Q. Do you know today who typed this 17. Special Report? 18 A No. 19 Q. And after you chose not to sign this 20 Special Report, did you hear about this Special 21 Report after that day? 22 MR. NOVICK: Objection to form. 23 Other than attorney-client privilege, 24 Counselor, other than meetings with his 25 lawyer? | iH POINT _ 441 Lexington Avenue, 2nd Floor Page 35 New York, NY 10017 | (855) 938-7466Case 7:14-cv-02995-KMK-LMS Document 141-4 Filed 01/12/17 Page 12 of 22 Melvin vs County of Westchester 30(b)(6) C.0. Kevin Grant 01/04/2017 1 - C.0. Kevin Grant - 2 MR. RICE: Correct, in the context of 3 ae 4 MR. NOVICK: Of what? | 5 MR. RICE: Corrections. MR. NOVICK: While working as a correction officer? MR. RICE: Correct. MR. NOVICK: Okay. Other than meetings with counsel, were documents reviewed? THE WITNESS: Can you just repeat the whole question for me, please. MR. NOVICK: With that segue, though -- 14 MR. RICE: I didn't hear you. 15 MR. NOVICK: I'm making sure that you 16 are not asking him to violate attorney- 1 client privilege. 18 MR. RICE: Of course I'm 19 that. 20 Can you repeat my last question, 21 please. 22 (The court reporter read back the last 23 question as requested.) 24 A. Can you clarify that question for me, 25 please? OINT 441 Lexington Avenue, 2nd Floor Page 36 coueT PONS New York, NY 10017 | (855) 938-7466Case 7:14-cv-02995-KMK-LMS Document 141-4 Filed 01/12/17 Page 13 of 22 Melvin vs County of Westchester 30(b)(6) C.O. Kevin Grant 01/04/2017, 3; - C.0. Kevin Grant - 2 Q. Did anybody from the correctional staff 3 ever mention this Special Report on February 14th? 4 MR. NOVICK: Objection to form. 5 A. Correctional staff? 6 Q. Westchester County Department of ) Corrections. 8 MR. NOVICK: Objection to form. 9 A As far as lawyers? 10 MR. NOVICK: Other than lawyers. Fe A other than lawyers? ie °. No, other than lawyers pertaining to a3 this case. 14 MR. NOVICK: TI can't imag: 1s with lawyers. 16 MR. RICE: I don't know anything. t ae don't even understand how this happened, so 18 I'm really confused about why we are even 19 talking about this particular document. 20 MR. NOVICK: Well, since it's a 21 Department of Corrections process, I think 22 that the subject matters are different, but 23 that's for you to figure out. That's the 24 way I see it, I see a subject Code 3, and 25 I see a subject Inmate Injury, and as to fourTainn SS New York, NY 10017 | (855) 938-7466 *) POINT | 441 Lexington Avenue, 2nd Floor Page 37Case 7:14-cv-02995-KMK-LMS Document 141-4 Filed 01/12/17 Page 14 of 22 Melvin vs County of Westchester 30(b)(6) C.O. Kevin Grant 01/04/2017 wre rs 10 ql 12 13 14 15 16 17 18 19 20 23 24 25 - C.O. Kevin Grant - your last question that wasn't answered, there is still concern about the witness about whether or not there was discussions with counsel, with me, because we -- we have reviewed documents. MR, RICE: Let me try to build a foundation. o. Officer Grant, other than the attorneys seated to your left, did you have any other attorneys with respect to Rashad McNulty? A. Yes, Q. What attorneys were there? AL The county attorney. Q. The county attorney? AL Yes. Q. And you had discussions with the county attorney -- without telling me what those discussions were, you had discussions with the county attorney concerning the death of Rashad McNulty? MR. NOVICK: Objection. You are giving him a topic of what he discussed with the county's attorney, I'm sure whatever he discussed with the county's attorney has to do with the case. POL 41 Lexington Avenue, 2nd Floor Page 38 s -OINT New York, NY 10017 | (855) 938-7466Case 7:14-cv-02995-KMK-LMS Document 141-4 Filed 01/12/17 Page 15 of 22 Melvin vs County of Westchester 30(b}(6) C.0. Kevin Grant 01/04/2017 1 - €.0. Kevin Grant - 2 MR. RICE: Strike that question. 3 MR. NOVICK: Thank you. 4 Q. Other than your communications with 5 attorneys, did you speak with anybody from Department 6 of Corrections with respect to this Special Report 7 after February 14th, 20137 8 A. Westchester County Department of 9 Corrections? 10 Q. Yes. ul a. No. 12 Q. Okay. When they brought this to your 13. residence on February 14th, 2013, did they give you a 14 copy for you to keep? 15 A. No. 16 Q. Did you get a chance to read it on that 17s day? 18 A. Yes. 19 Q. Are the contents within this document 20 correct, to the best of your recollection? 21 MR. NOVICK: You want to read it? 22 THE WITNESS: No. 23 a. No, you don't want to read it, or no, 24 they are not correct? 25 AL IT don't want to read it. “POINT _ 441 Lexington Avenue, 2nd Floor Page 39 eTHEON SG New York, NY 10017 | (855) 938-7466Case 7:14-cv-02995-KMK-LMS Document 141-4 Filed 01/12/17 Page 16 of 22 Melvin vs County of Westchester 30(b(6) C.O. Kevin Grant 01/04/2017 1 - €.0. Kevin Grant - 2 Q. Are the contents correct? 3 A I don't know what the content is. 4 Q. Did you read this document before 5 teday? 6 AL February 14th, 2013. 7 Oe And when you read it on that date, do 8 you recall if the contents within that Special Report 9 were correct? 10 Be It wasn't the document that I 11 submitted. 12 Q. That's not my question. My question 13 is, do you recall if the contents within this 14 document were correct? 15 MR. NOVICK: Do you want to read the 16 document to answer the question, or do you want to go from memory from February 14th, 18 20137 | 19 Counsel asked you if the contents are 20 correct. 21 So, Mr. Rice, are you asking - 22 MR. RICE: When he read it on Febru 23 14th, 2013, does he recall if the contents 24 within the Special Report were correct? 25 A. When I read this on February 14th, | POINT | 441 Lexington Avenue, 2nd Floor Page 40 foonaneesate New York, NY 10017 | (855) 938-7466Case 7:14-cv-02995-KMK-LMS Document 141-4 Filed 01/12/17 Page 17 of 22 Melvin vs County of Westchester 30(b)(6) C.O. Kevin Grant 01/04/2017 1 - C.0. Kevin Grant - 2 2013, I realized that it wasn't the Special Report 3 that I submitted, and that's why I refused to sign 4 it. 5 9. My question is, did you recall at that € time what then was presented to you was correct, was | 7 accurate? 8 MR. NOVICK: Objection, it's been asked 9 and answered, 10 MR. RICE: No, it has not been 11 answered. We can go back on the record. 12 MR. NOVICK: We never left the record. 13 MR. RICE: I mean let's read -- let's 14 hear what the answer was. I do not recall 15 an answer to that question. 16 MR. NOVICK: He said, realized it 20 21 22 23 24 POINT wasn't the Special Report." You said, "Are the contents correct?" He responded, "I realized it wasn't the Special Report the 1 submitted." MR. RICE: That's not my question, whether it was his report. It's whether it's correct. We can go line by line and we can find out if what I see before me is accurate. 441 Lexington Avenue, 2nd Floor Page 41 TonTH Oe 9 New York, NY 10017 | (855) 938-7466Case 7:14-cv-02995-KMK-LMS Document 141-4 Filed 01/12/17 Page 18 of 22 Melvin vs County of Westchester 30(b)(6) C.0. Kevin Gram 01/04/2017 1 - C.O. Kevin Grant - Z I'm entitled to know that. 3 MR. NOVICK: If he knows the answer. 4 MR. RICE: Okay. Let's go. 10 1 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MR. NOVICK: He didn't sign it. MR. RICE: We are here discus, ing a document that was presented to me in the course of discovery with his name, Kevin Grant, 1429, which purports to be a Special Report authored by him. I find out for the first time today that he did not’ write this report, and I'm asking him if the contents within this report are accurate, and I'm entitled to know that. MR. NOVICK: There is a signature of somebody. Delgrasso signs it down here. Did you ask Delgrasse questions about the document? MR. RICE: Can I go? MR. NOVICK: I guess you can go, ask question by question. MR, RICE: Okay. MR. NOVICK: Ask a question, and then let's take a break. OINT _ 441 Lexington Avenue, 2nd Floor Page 42 SUPA New York, NY 10017 | (855) 938-7466Case 7:14-cv-02995-KMK-LMS Document 141-4 Filed 01/12/17 Page 19 of 22 Melvin vs County of Westchester 30(b)(6) C.O. Kevin Grant 01/04/2017 1 - C.0. Kevin Grant - 2 Is there an open question? 3 MR. RICE: Yes. 4 2. Are the contents within this report 5S correct? 6 A I answered that. 7 Q. No, you did not answer that. You said 8 it was not written by you. a A. I read it and I realized it was not 11 10 Special Report that I submitted, so I refused to 11 it. 12 o. IT understand that. My question now is, 13 my question always has been -- 1 MR. NOVICK: Is the sum and substance 15 of it correct? Q. s everything correct? MR. NOVICK: Well -- Q. Is everything within this report 19 correct? 20 MR. NOVICK: Objection to the form of 21 that. 22 MS. DEVASIA: Are you reading the 23 report? 24 MR. NOVICK: He's reading the report. (Referring.) 4 POINT __ 441 Lexington Avenue, 2nd Floor Page 43 © New York, NY 10017 | (855) 938-7466Case 7:14-cv-02995-KMK-LMS Document 141-4 Filed 01/12/17 Page 20 of 22 Melvin vs County of Westchester 30(6)(6) C.O. Kevin Grant 010472017 [ ] 1 - €.0. Kevin Grant - | 2 MR. NOVICK: Let me know when you are | 3 done reading, Kev 4 THE WITNESS: I'm finished. 5 MR. NOVICK: So the question is, was it 6 correct or -- what words did you use? 7 2. Is the information supplied in this | 8 Special Report accurate? 9 RL It's not everything I wrote. | 10 Q. I promise you we will get to that ina | 11 second; I'm just asking about this document. a. Somewhat. 18 Q. Okay. Good. | MR. RICE: Are you going to take a 18 break? 16 MR. NOVICK: Are you okay? 17 THE WITNESS: Yeah, I'm good. 18 WR. RICE: Okay. Keep going. 19 Q. Is it your testimony today that you 20 wrote a separate Special Report, other than what's 21 front of us as Plaintiff's 10? 22 A. I typed. 23 Q. You typed a separate Special report? 24 aA. And signed. 25 Qa When did you type this other report? TR POINT __ 441 Lexington Avenue, 2nd Floor Page 44 © FeaTaiiserss New York, NY 10017 | (855) 938-7466Case 7:14-cv-02995-KMK-LMS Document 141-4 Filed 01/12/17 Page 21 of 22 Melvin vs County of Westchester 30(6\(6) C.O. Kevin Grant 01/04/2017 1 - €.0. Kevin Grant - 2 A. January 29th, 2013. 3 Q. Approximately what time? 4 AL Between 8 and 9, I was working on it -- 5 I got out about 9 o'clock that morning, so from 7 to 6 9 I was working on it. 7 a. And you signed it between 7 to 9? A. Yes. Q. And what did you do with it after you typed and signed it? AL I hand-delivered it to Capt 12 Delgrasso. ~ i 13 Q. On January 29th, 2013? 14 AL yes. - 5 °. And what, if anything, did Capt. ]16 Delgrasso do with that report, if you know? 17 MR. NOVICK: Objection. 18 Q. Do you have a copy of that report that 19 you typed and signed? 20 A. No, six. 21 Q What, if anything, was different about 22 the report that you typed and signed versus what's 23 re us as Plaintiff's 10? 24 A. I do not recall at this time. 25 Q. Was there more information? i P 441 Lexington Avenue, 2nd Floor Page 45 ONT, New York, NY 10017 | (885) 938-7466Case 7:14-cv-02995-KMK-LMS Document 141-4 Filed 01/12/17 Page 22 of 22 Melvin vs County of Westchester 30(b)(6) C.0. Kevin Grant 0140472017 4. - C.O. Kevin Grant - 2 A. I would say so. a a More information concerning what? 4 A. Just more to details. 5 MR. RICE: At this time, I'm going to 6 ask for a complete production of all the 7 records prepared and presented by Officer 8 Kevin Grant, 9 In the beginning, I made several 10 discovery requests. One of those requests lu specifically related to all statements that 12 were made. I'm now being told for the - 13 first time on the last day of our deadline for fact. discovery that there is a separate 15 Special Report authored by Kevin Grant, and | 16 I have never been provided with that. 17 It is totally inappropriate for me not 1 to have this other Special Report, 19 especially if it was known by one of your 20 clients, or all of your clients, or some of 21 your clients, that this report exists, and 22 1 demand for it to be immediately turned 23 over to plaintiff. And if it's not, I'm 24 going to immediately seck redress from the 25 Southern District Court. | | : POINT __ 441 Lexington Avenue, 2nd Floor Page 46 suationins: New York, NY 10017 | (855) 938-7466Case 7:14-cv-02995-KMK-LMS Document 142 Filed 01/12/17 Page 1 of 2 GAINES, NOVICK, PONZINI, COSSU, & VENDITTI, LLP ATTORNEYS AT LAW 11 Martine Avenue, 8™ Floor WHITE PLAINS, NEW YORK 10606 (914) 288-9595 FAX (914) 288-0850 John M. Murtagh. E-mail: jmurtagh@gaineslip.com Direct Disk: (914) 831-6231 January 12, 2017 Via ECF Honorable Lisa Margaret Smith United States District Court Southern District of New York 300 Quarropas Street White Plains, New York 10606 Re: _ Friea Melvin y. County of Westchester, et. al. 14 Civ. 2995 (KMK) ‘Your Honor: We represent the defendants in this matter. We write in response to plaintif’s letter dated January 12, 2017 seeking leave to make a motion for spoliation sanctions alleging that defendants either withheld or destroyed a purported “Special Report” authored by Corrections Officer Kevin Grant. On January 4, 2017 defendants produced as a deposition witness Corrections Officer Kevin Grant. Athis deposition, Grant was shown three different reports with regard to the incident in question, two of which reports bore his signature and the third which did not. Grant identified one signed report dated January 29, 2013, the date of the incident (PI's Ex 16) as a report he authored and signed on the morning of the incident. Grant identified a second signed report dated January 31, 2013 (PItff"s Ex 13) as 2 document he authored because | | |Case 7:14-cv-02995-KMK-LMS Document 142 Filed 01/12/17 Page 2 of 2 hhe was experiencing stress as a result of the incident, In fact, Grant made a stress related disability claim. The third report, which did not bear his signature (Pltff’'s Ex. 10) he identified as a report he was asked to sign approximately two weeks after the incident. He testified that he declined to do so because he had not authored the report. Well prior to any depositions, on August 10, 2016, defendants served their “Answer to Plaintiff's Request for Production of Documents to Westchester Defendants.” In that production were the signed January 29! report and the unsigned report, both of which were part of the Defendant County's investigative file for this incident, ‘The January 31 report, which was prepared for Grant’s separate disability claim, and which was, therefore, never part of the County's files for the investigation of the incident, was obtained through a Freedom of Information Request. Athis deposition on January 4, 2017, Grant, for the first time, testified that he prepared still another report on the momning of the incident. By letter Gated January 6, 2017, plaintiff's counsel made a follow up written demand for this fourth report and specifically demanded a response by January 11. Yesterday, we met and conferred by telephone with plaintit?’s counsel and advised him that the defendants were in the process of searching for this previously unknown fourth report. We pointed out that Your Honor had, only a week ago, advised plaintiff’s counsel that the defendants had the ustat'statutory time in which to respond to post-deposition document demands and we believed we were not bound by counsel’s arbitrary five-day deadline. Plaintiff"s counsel replied that “this is different.” When we asked how this demand was different, counsel responded that it was different because he was “appalled” that the document had not previously been produced, We advised counsc] that we ‘were unaware of any statutory provision which shortened the time to respond merely because ‘opposing counsel was “appalled.” We also assured counsel that a diligent effort was being made to locate the supposed newly described document and that we would respond in a timely manner, Counsel’s request to move for spoliation sanctions is, we believe completely unwarrented but, in any event, is clearly premature. Respectfully, cc: Jarod Rice, Esq.