EFTA00728493.pdf

VIA EMAIL and First Class Mail DARREN K. INDYKE DARREN K. INDYKE, PLLC 301 East 66t° Street, 10B New York, New York 10065 Telephone: Telecopier: email: April 2, 2010 Jay Goldberg, Esq. 250 Park Avenue Suite 2020 New York, New York 10177 Re: Claims of Jeffrey Epstein and L.S.J., LLC against Juan Pablo Molyneux and J.P. Molyneux Studio, Ltd. Dear Jay: As you know, Jeffrey Epstein and L.S.J., LLC (collectively, "Epstein") have asserted numerous claims against Juan Pablo Molyneux and J.P. Molyneux Studio, Ltd. (collectively, "Molyneux") arising out of Molyneux's fraudulent misrepresentations, misfeasance and failures to perform certain architectural and design services for Epstein and Little St. James Island, including under an Agreement for Design Services, dated May 15, 2009, between Epstein and Molyneux (the "Design Services Agreement"). As I have advised you, after the expiration of the 10-day cure period, Mr. Epstein intends to hold Mr. Molyneux in breach under the Design Services Agreement and seek to recover all Epstein's damages, in the event that Mr. Molyneux fails to resolve all outstanding matters with Mr. Epstein by the April 15 deadline provided under the Design Services Agreement. In anticipation of such litigation (the "Litigation"), by this letter, you and your clients are hereby given notice not to destroy, conceal or alter any paper or electronic records, including, without limitation, information, communications, notes, billing records, invoices, receipts, statements, purchase orders, plans, CAD (computer aided design) files, sketches, drawings, renderings, photographs, designs, models, samples, lists, descriptions, representations, proposals, contracts, memoranda, materials, documents, schedules, diaries, files, and other data (including, without limitation, electronic data), transmitted, generated or retained by your clients, stored on your clients' computers and storage media (e.g., hard drives, hard disks, jump drives, backup tapes or any other storage media), or otherwise in the possession or control of your clients or any of their subcontractors, agents or representatives, related in any way 1 EFTA00728493 whatsoever to Mr. Epstein, L.S.J., LLC, or Little St. James Island, or any services or materials proposed, promised, agreed, or provided, whether in whole or in part, with respect to Mr. Epstein, L.S.J., LLC or Little St. James Island (hereinafter referred to as "Records"). This includes, without limitation, any and all Records consisting of, comprising, containing, referring to, relating to or reflecting representations by Molyneux regarding the purported expertise, skills, knowledge and/or experience of your clients as architects and designers. As you know, your clients' failure to comply with this notice can result in severe sanctions being imposed by a court for spoliation of evidence or potential evidence. Through discovery Epstein expects to obtain from your clients all Records, including files and data stored on your clients' computers and your clients' computer storage media. In order to avoid spoliation, your clients must be prepared to provide the data requested on the original media. Your clients should not reuse any media on which potentially relevant data is presently stored. Although Epstein may bring a motion for an order preserving Records from destruction or alteration, your clients' obligation to preserve Records for discovery in litigation arises in law and equity independently from any order on such motion. Electronic Records and the storage media on which they reside contain relevant, discoverable information beyond that which may be found in printed documents. Therefore, even where a paper copy exists, Epstein may seek all Records in their electronic form along with information about those Records contained on the media. Epstein also may seek paper printouts of those Records that contain unique information after they were printed out (such as paper documents containing handwriting, signatures, marginalia, drawings, annotations, highlighting and redactions) along with any paper Records for which no corresponding electronic files exist. Epstein's discovery requests may ask for certain data on hard disks, hard drives, jump drives CD ROMs and other backup media used in your clients' computers, some of which data are not readily available to an ordinary computer user, such as "deleted" files and "file fragments." As you may know, although a user may "erase" or "delete" a file, all that is really erased is a reference to that file in a table on the hard drive. Unless overwritten with new data, a "deleted" file can be intact on the drive as any "active" file you would see in a directory listing. Accordingly, electronic data and storage media that may be subject to Epstein's discovery requests and that your clients are obligated to maintain and not alter or destroy, include, but are not limited to, the following: Description of files and file types subject to discovery: 1. All digital or analog electronic Records, including "deleted" files and file fragments, stored in machine-readable format on magnetic, optical or other storage media, including the hard drives used by your clients' computers and their backup media (e.g., other hard drives, jump drives, backup tapes, Jaz cartridges, CD-ROMs) or otherwise, whether such files have been reduced to paper printouts or not. Without limiting the generality of the foregoing, your clients specifically are to preserve all of your clients' e-mails, both sent and 2 EFTA00728494 received, whether internally or externally; all word-processed files, including drafts and revisions; all invoices, statements and spreadsheets, including drafts and revisions; all databases; all CAD (computed-aided design) files, including drafts and revisions; all drawings, sketches, renderings, photographs, designs and models, including drafts and revisions, stored in machine- readable format on magnetic, optical or other storage media; all presentation data or slide shows produced by presentation software (such as Microsoft PowerPoint); all graphs, charts and other data produced by project management software (such as Microsoft Project); all data generated by calendaring, task management software (such as Microsoft Project); all data generated by calendaring, task management and personal information management (PIM) software (such as Microsoft Outlook or Lotus Notes); all data created with the use of personal data assistants (PDAs), such as PalmPilot, HP Jornada, Cassiopeia or other Windows CE-based or Pocket PC devices; all data created with the use of document management software; all data created with the use of paper and electronic mail logging and routing software; all Internet and Web-browser- generated history files, caches and "cookies" files generated at the workstation of each employee and/or agent in your clients' employ and on any and all backup storage media; and any and all other files generated or stored by users through the use of computers and/or telecommunications, including but not limited to voice mail. Further, your clients are to preserve any log or logs of network use by employees or otherwise, whether kept in paper or electronic form, and to preserve all copies of your clients' backup tapes and the software necessary to reconstruct the data on those tapes, so that there can be made a complete, bit-by-bit "mirror" evidentiary image copy of the storage media of each and every personal computer (and/or workstation) and network server in your clients' custody or control, as well as image copies of all hard drives retained by your clients and no longer in service, but in use at any time from July 1, 2005 to the present. Your clients are also not to pack, compress, purge or otherwise dispose of files and parts of files unless a true and correct copy of such files is made. Your clients are also to preserve and not destroy all passwords, decryption procedures (including, if necessary, the software to decrypt the files); network access codes, ID names, manuals, tutorials, written instructions, decompression or reconstruction software, and any and all other information and things necessary to access, view and (if necessary) reconstruct the electronic data that may be requested through discovery. The provisions of this letter apply to your clients and all persons or entities holding Records for, on behalf of, at the request of or under the direction of your clients. Online Data Storage on Mainframes and Minicomputers: 2. With regard to online storage and/or direct access storage devices attached to your clients' mainframe computers and/or minicomputers: your clients are not to modify or delete any electronic data files, "deleted" files and file fragments existing at the time of this letter's delivery, which contained any electronic data described in paragraph 1 above, unless a true and correct copy of each such electronic data file has been made and steps have been taken to assure that such a copy will be preserved and accessible for purposes of the Litigation. 3 EFTA00728495 Offline Data Storage, Backups and Archives, Tapes and Other Removable Electronic Media: 3. With regard to all electronic media used for offline storage, including magnetic tapes and cartridges and other media that, at the time of this letter's delivery, contained any electronic data described in paragraph 1 above: Your clients are to stop any activity that may result in the loss of such electronic data, including rotation, destruction, overwriting and/or erasure of such media in whole or in part. This request is intended to cover all removable electronic media used for data storage in connection with their computer systems, including magnetic tapes and cartridges, magneto-optical disks, CD ROMs, jump drives, external hard drives and all other media, whether used with personal computers, minicomputers or mainframes or other computers, and whether containing backup and/or archive data sets and other electronic data, for all of their computer systems. Replacement of Data Storage Devices: 4. Your clients are not to dispose of any electronic data storage devices and/or media that may be replaced due to failure and/or upgrade and/or other reasons that may contain electronic data described in paragraph I above. Fixed Drives on Stand-Alone Personal Computers and Network Workstations: 5. With regard to electronic data described in paragraph 1 above, which existed on fixed drives attached to stand-alone microcomputers and/or network workstations at the time of this letter's delivery: Your clients are not to alter or erase such electronic data, and are not to perform other procedures (such as data compressions and disk de-fragmentation or optimization routines) that may impact such data, unless a true and correct copy has been made of such active files and of completely restored versions of such deleted electronic files and file fragments, copies have been made of all directory listings (including hidden files) for all directories and subdirectories containing such files, and arrangements have been made to preserve such copies until the Litigation reaches final resolution. Programs and Utilities: 6. Your clients are to preserve copies of all application programs and utilities, which may be used to process electronic Records covered by this letter. Log of System Modifications: 4 EFTA00728496 7. Your clients are to maintain an activity log to document modifications made to any electronic data processing system that may affect the system's capability to process any electronic data described in paragraph 1 above, regardless of whether such modifications were made by employees, contactors, vendors and/or any other third parties. Personal Computers Used by Your Employees and/or Their Secretaries and Assistants: 8. The following steps should immediately be taken in regard to all personal computers used by your clients' employees and/or their secretaries and assistants. a. b. As to fixed drives attached to such computers: (i) a true and correct copy is to be made of all electronic data covered by this letter on such fixed drives, including all active files and completely restored versions of all deleted electronic files and file fragments; (ii) full directory listings (including hidden files) for all directories and subdirectories (including hidden directories) on such fixed drives should be written; and (III) such copies and listings are to be preserved until the Litigation reaches final resolution. All magnetic tapes and cartridges, CD ROMs, jump drives, external hard drives and other media used in connection with such computers prior to the date of delivery of this letter containing any electronic data covered by this letter are to be collected and put into storage until the Litigation reaches final resolution. Evidence Created Subsequent to This Letter: 9. With regard to electronic data created subsequent to the date of delivery of this letter, relevant evidence is not to be destroyed and your clients are to take whatever steps are appropriate to avoid destruction of evidence. In order to assure that you and your clients' obligation to preserve Records will be met, please forward a copy of this letter to all persons and entities with custodial responsibility for any of the Records referred to in this letter. Sincerely, Darren K. Indyke 5 EFTA00728497