Wait for it.
28 April, 2010
Dear Reviewing Counsel:
Please review the attached DVD and documentation with all the earnestness at your command.
Benjamin D. Velella, Esq. misrepresented to licensed counsel and to an opposing party that:
A. No one at Citibank Chinatown branch told Derrick Gillenwater that the branch would cash his check once he updated his State ID to go along with his current Social Security Card.
B. No one at Citibank Chinatown branch told Derrick Gillenwater when we returned to the branch that the manager was not available.
With all due respect, these are bald-faced lies told in contravention of Rules 3.3 and 3.4 (and probably others) Candor toward the tribunal and opposing parties.
You can hear Derrick Gillenwater say as much in the video.
Equally important is the FACT that my lawyer told them to maintain the video from the Chinatown branch but they have not, and not only is that spoliation of evidence, it was a further attempt to cover up the lies because the video from both visits could be narrated and shown in order to support my contentions. Accord Kippenhan v. Chaulk, 428 Mass. 124 (1998).
Sanctions may be appropriate for the spoliation of evidence that occurs even before an action has been commenced, if a litigant or its expert knows or reasonably should know that the evidence might be relevant to a possible action. See Nally v. Volkswagen of Am., Inc., supra at 197-198; Lewy v. Remington Arms Co., 836 F.2d 1104, 1112 (8th Cir. 1988); Fire Ins. Exch. v. Zenith Radio Corp., 103 Nev. 648, 651 (1987). The threat of a lawsuit must be sufficiently apparent, however, that a reasonable person in the spoliator's position would realize, at the time of spoliation, the possible importance of the evidence to the resolution of the potential dispute.
With all due respect, when you get a letter from a lawyer threatening litigation and asking for video to be maintained, I think that effectively crosses the threshold contemplated by Chaulk.
Update: Read the specific warning to Counselor Velella on 26 May 2009:
Dear Attorney Velella:
Don't forget the express representation from your Chinatown branch that they would honor the check when Mr. Gillenwater got his new State I.D. card.
They then reneged on that promise, all of which should be stored in your video vault.
Posted by opencourts at 8:43 AM
Christopher King, J.D.