NASSAU, BAHAMAS — The attorneys representing 46 women who have accused Canadian fashion mogul Peter Nygard of sex crimes filed a motion in a New York court Monday, accusing Nygard’s employees of destroying thousands of documents from computers confiscated during an FBI raid in February.
The motion was filed before Judge Edgardo Ramos of the southern district of New York.
The women, named Jane Does 1-46 in court documents, claimed they learned from former employees that Nygard’s executives instructed employees to destroy computers files and ‘clean up’ records.
According to a report prepared for the court by Richter Advisory Group, the receiver of Nygard’s company as of March 18, 2020, a total of 10,488 files were deleted after the litigation hold was issued.
Attorney Greg Gutzler, co-counsel with Lisa Haba, for the plaintiffs wrote that upon learning this, the plaintiffs immediately wrote to Nygard’s attorneys indicating they had received information of his employees being instructed to destroy evidence contained on computers, and requested for immediate measures to be taken to cease the destruction.
The plaintiffs also requested an explanation as to what measures were being taken to to ensure the full preservation of evidence moving forward.
According to Gutzler, Nygard’s attorneys responded on February 26, 2020, advising that appropriate inquiries were being made, but no specifics were provided on how evidence was being preserved.
The plaintiffs once again requested these steps be outlined and the matter be investigated to prevent the continued destruction of evidence.
An addendum preservation letter was also sent to Nygard’s legal team identifying additional categories of evidence defendants were obligated to preserve.
Through continued correspondence it was learned that the litigation hold, otherwise known as the preservation order, was issued on February 20, 2020 — over a year after “they predicted plaintiffs’ lawsuit; thirteen days after the complaint was filed; one day after a grand jury subpoena was issued by the federal government; and one day after plaintiffs notified defendants that they were aware of their destruction of evidence”.
The motion to the judge said it was clear from the timing of the litigation hold alone that Nygard and his counsel did not comply with their good faith obligation to ensure the preservation of evidence, despite their representations to the contrary.
It said it was also clear that Nygard’s legal team took “extreme measures” to conceal the matter, necessitating the motion filed.
According to Richter’s supplementary report to the court the majority of the deleted files were concentrated among three users: two IT account users and one of the main co-conspirators, who is alleged to have knowingly enabled and facilitated Nygard’s alleged crimes.
According to the court document, the individual in question deleted 1,059 files on March 18, 2020 — the same date the receiver was appointed and the defendants lost control over their computer systems.
The motion notes the receiver reported the conduct was questionable as there was very little deletion activity in the three weeks prior.
An investigation was underway to determine the appropriateness of the deletion of the data and documents in light of the litigation hold and the grand jury subpoena, according to court documents.
“Because of the ongoing and willful nature of the evidence destruction, plaintiffs requests that the spoliation motion be addressed immediately on an expedited basis before addressing any issues raised by defendants,” the motion read.
It continued: “The breach of the duty to preserve, and the resulting spoliation of evidence may result in the imposition of sanctions by a court because the court has the obligation to ensure that the judicial process is not abused.”
The plaintiffs have also requested leave from the court to file a second amended complaint in order to clarify and correct alleged factual gaps Nygard has raised, including the date in which one of the plaintiffs reached the age of 18.
According to the motion, Nygard has refused to consent to the second amended complaint being filed.
