Case 1:17-cv-08047-VEC Document 85-1 Filed 12/14/18 Page 1 of 26

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK
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In re Lyman Good Dietary Supplements Litigation : 17-CV-8047 (VEC)
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MEMORANDUM OF LAW IN SUPPORT OF

MOTION TO DISMISS DUE TO SPOLIATION OF EVIDENCE

EPSTEIN BECKER & GREEN

Jack Wenik, Esq.
Robert M. Travisano, Esq.
David J. Marck, Esq.
Attorneys for Defendants
GASPARI NUTRITION, INC., and,
HI-TECH PHARMACEUTICALS,
INC.

One Gateway Center, 13th Floor

Newark, New Jersey 07102
(973) 642-1900

250 Park Avenue

New York, New York 10177-1211
(212) 351-4500
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TABLE OF CONTENTS

TABLE OF AUTHORITIES ......................................................................................................... iii

I. INTRODUCTION ...............................................................................................................1

II. BACKGROUND .................................................................................................................3

A. THIS IS AN ADULTERATION CASE IN WHICH THE ONLY DEFINITIVE

PIECE OF EVIDENCE IS NOT AVAILABLE DUE TO PLAINTIFF’S
ACTIONS ................................................................................................................3

B. PLAINTIFF’S INITIAL STATEMENTS TO USADA CONTRADICT HIS

ALLEGATION THAT HE WAS CONSUMING ANAVITE IN OCTOBER
2016..........................................................................................................................5

C. PLAINTIFF ATTEMPTS TO PIN THE BLAME FOR HIS FAILED PED

TEST ON ANAVITE ..............................................................................................6

D. PLAINTIFF’S ORIGINAL COMPLAINT IN THIS MATTER FALSELY

ALLEGED THAT LGC HAD DETECTED 1-ANDROSTENEDIONE IN
ANAVITE ................................................................................................................7

E. DEFENDANTS’ REQUESTS THAT PLAINTIFF PRODUCE THE

ANAVITE HE WAS ALLEGEDLY TAKING IN OCTOBER 2016 ARE
REBUFFED .............................................................................................................8

III. ARGUMENT ......................................................................................................................13

A. DISMISSAL IS AN APPROPRIATE SANCTION WHEN A PARTY

INTENTIONALLY, RECKLESSLY OR NEGLIGENTLY SPOLIATES
CRITICAL EVIDENCE THAT PREJUDICES ANOTHER PARTY’S
ABILITY TO DEFEND ITSELF ..........................................................................13

B. PLAINTIFF’S SPOLIATION OF THE “MISSING” ANAVITE SATISFIES

THE PRESERVATION, CULPABILITIY AND RELEVANCE
REQUIREMENTS FOR A SPOLIATION SANCTION ......................................14

1) PLAINTIFF HAD A DUTY TO PRESERVE THE “MISSING”

ANAVITE SHORTLY AFTER HIS FAILED PED TEST RESULTS
WERE RECEIVED FROM USADA .............................................................14

2) PLAINTIFF’S SPOLIATION OF THE “MISSING” ANAVITE WAS,

AT A MINIMUM, GROSSLY NEGLIGENT ...............................................16

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3) THE “MISSING” ANAVITE IS UNDOUBTEDLY THE MOST

IMPORTANT PIECE OF EVIDENCE IN THIS CASE AND HIGHLY
RELEVANT TO DEFENDANTS’ DEFENSE .............................................18

C. DISMISSAL OF PLAINTIFF’S COMPLAINT IS THE ONLY RELIEF

APPROPRIATE CONSIDERING THE PREJUDICE TO DEFENDANTS’
AS A RESULT OF PLAINTIFF’S SPOLIATION OF THE “MISSING”
ANAVITE .............................................................................................................19

CONCLUSION ..............................................................................................................................21

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TABLE OF AUTHORITIES

Page(s)

Cases

Beers v. GMC,
97-CV-482 (NPM/DNH), 1999 U. S. Dist. LEXIS 12285 (N.D.N.Y. May 17, 1999)......17, 18

Brancaccio v. Mitsubishi Motors Co.,

90 Civ. 7852, 1992 U.S. Dist. LEXIS 11022 (S.D.N.Y July 27, 1992) ..................................17

Byrnie v. Town of Cromwell Bd. of Educ.,

243 F.3d 93 (2d Cir. 2001).................................................................................................13, 14

Chambers v. NASCO, Inc.,

501 U.S. 32 (1991) ...................................................................................................................14

Cine Forty-Second St. Theatre Corp. v. Allied Artists Pictures Corp.,

602, F.2d.1062 (2d Cir. 1979)..................................................................................................16

Kronisch v. United States,

150 F.3d 112 (2d Cir. 1998), cert. denied, 531 U.S. 1078 (2001) .....................................18, 19

Penthouse Int'l, Ltd. v. Playboy Enters., Inc.,

663 F.2d 371 (2d Cir. 1981).....................................................................................................17

Residential Funding Corp. v. DeGeorge Fin. Corp.,

306 F.3d 99 (2d Cir. 2002).................................................................................................14, 18

Sassower v. Field,
973 F.2d 75 (2d Cir. 1992), cert. denied, 507 U.S. 1043 (1993) .............................................14

West v. Goodyear Tire & Rubber Co.,

167 F.3d 776 (2d Cir. 1999)............................................................................................. passim

Other Authorities

Federal Rule of Civil Procedure 37 ...........................................................................................1, 14

https://pubchem.ncbi.nlm.nih.gov/compound/1-Androstenedione ..................................................4

https://pubchem.ncbi.nlm.nih.gov/compound/6128 ........................................................................4

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Defendants Gaspari Nutrition, Inc. (“GNI”) and Hi-Tech Pharmaceuticals, Inc. (“Hi-

Tech”) (collectively, “Defendants”), submit this memorandum of law in support of their motion,

pursuant to Federal Rule of Civil Procedure 37 and the federal common law, seeking the

dismissal of Plaintiff Lyman Good’s Second Amended Complaint (ECF No. 60) due to his

inexcusable loss of the key piece of evidence in this adulteration/products liability case.

I. INTRODUCTION

“It has long been the rule that spoliators should not benefit from their wrongdoing, as

illustrated by ‘that favourite maxim of the law, omnia presumuntur contra spoliatorem [all things

are presumed against the individual who destroys evidence].’” West v. Goodyear Tire & Rubber

Co., 167 F.3d 776, 779 (2d Cir. 1999) (quoting 1 Sir T. Willes Chitty, et al., Smith's Leading

Cases 404 (13th ed. 1929)). This rule applies with full force here because Plaintiff has spoliated

the most crucial piece of evidence in this case, i.e. the allegedly adulterated dietary supplement

product/multivitamin, Anavite, and its absence hopelessly prejudices Defendants’ ability to

mount a complete defense. The only appropriate remedy for this prejudice is the dismissal of

Plaintiff’s Second Amended Complaint.

This matter arises from Plaintiff’s failed performance enhancing drug (“PED”) test

administered by the United States Anti-Doping Agency (“USADA”) in connection with his

involvement as a mixed martial arts (“MMA”) competitor in the Ultimate Fighting

Championship (“UFC”). Although Plaintiff did not name Defendant GNI’s Anavite as one of the

thirteen substances that he was ingesting at the time of his test in a contemporaneous sworn

declaration, he now contends that it was an adulterated bottle of Anavite that caused his failed

PED test. But that bottle of Anavite is gone and Plaintiff’s explanation of its whereabouts is

suspect at best.

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During his deposition, Plaintiff could not identify when he first began taking, concluded

taking, or how often he took Anavite. When questioned about the whereabouts of the Anavite he

was allegedly taking at the time of his failed PED test, he claimed he gave it to his attorney.

Follow-up with Plaintiff’s attorney revealed that counsel never received an opened bottle of

Anavite from Plaintiff. With these admissions, Plaintiff has painted himself into a corner. Either

he never opened and ingested any Anavite at the time of his failed PED test, or he destroyed the

opened bottle. If the former, Plaintiff obviously has no case because Anavite could not have

played any role in his failed PED test and subsequent UFC suspension. If the latter, he has

spoliated the most crucial, and likely exculpatory, evidence in this matter. Regardless, Plaintiff

continues to press forward despite the clear evidentiary and credibility issues rampant in his case.

Significantly, this is not the first time that Plaintiff has played fast and loose with the

facts and evidence in this case. For example, following his failed PED test, Plaintiff sent a bottle

of Anavite to be analyzed by LGC Science, Inc. (“LGC”), which was unable to detect the same

anabolic steroid that USADA detected in Plaintiff’s urine and led to his UFC suspension.

However, Plaintiff’s initial pleading in this matter stated exactly the opposite, i.e. that the

USADA test and LGC analysis found identical steroids. He was forced to correct the pleading

after LGC sent a sternly worded letter to his attorney regarding the misrepresentations in that

pleading. As explained below, Plaintiff’s Second Amended Complaint still contains inaccurate

information about the various substances at issue here and what was detected by certain

laboratories. Plaintiff’s misstatement of the LGC results and his spoliation of the “missing”

Anavite are part and parcel of his continuing inability to litigate this matter with the candor and

honestly required. This factual sleight of hand is indicative of someone who is trying to cover up

the impact of missing evidence and, more importantly, demonstrates a culpable state of mind.

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Sanctions for spoliating evidence are appropriate when the following elements are met:

(1) the spoliator had a duty to preserve the evidence in question at the time of its loss; (2) the

evidence was lost with a culpable state of mind, which includes negligence; and (3) the lost

evidence was relevant to a party’s claim or defense. West, 167 F.3d at 779. As discussed more

fully below, these elements are easily met here. Moreover, dismissal of the Second Amended

Complaint is the only appropriate remedy for Plaintiff’s spoliation of the Anavite he was

supposedly taking in October 2016 because it serves the “prophylactic, punitive, and remedial

rationales underlying the spoliation doctrine.” Id. (citation omitted). Moreover, dismissal here is

the only remedy which can “restore ‘the prejudiced party [Defendants] to the same position

[they] would have been in absent the wrongful destruction of evidence by the opposing party

[Plaintiff].’” Id. (citations omitted).

II. BACKGROUND

A. This is an Adulteration Case in Which the Only Definitive Piece of Evidence

is Not Available Due to Plaintiff’s Actions

The allegations in Plaintiff’s Second Amended Complaint (ECF No. 60, “Complaint”)

are straightforward. Plaintiff is a MMA fighter who competes in the UFC. The UFC, like many

other professional sports organizations, subjects its athletes to a PED monitoring program that is

overseen by USADA. As part of his contract with the UFC, Plaintiff agreed to submit to random

PED tests administered by USADA.1

Plaintiff underwent such a test on October 14, 2016. The results of that test were

provided to Plaintiff on October 24, 2016 and revealed that Plaintiff purportedly tested positive

1
Section 8.5 of Plaintiff’s UFC contract states Plaintiff “would be bound by all aspects of the
UFC Anti-Doping (“UFC ADP”) Policy” and, in the event of an anti-doping policy violation,
“[Plaintiff] further agree[d] to the authority and jurisdiction of the arbitration process set forth in
the UFC ADP Policy.” Ex. 1 (all references to “Ex.” refer to the exhibits attached to the
Declaration of David J. Marck, Esq., submitted herewith).

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for 1-androstenedione2 and its metabolite 1-(5α)-androsten-3α-o1-17-one. 1-androstenedione is a

banned PED and its presence in Plaintiff’s urine would have normally resulted in a two year

suspension from participation in the UFC (or any other sport governed by USADA).

Plaintiff alleges that the 1-androstenedione detected in his urine was not the result of

taking any banned PED, but rather, was caused by his supposed ingestion of Anavite, a

multivitamin sold by GNI and manufactured for GNI by Hi-Tech.3 Shockingly, neither Plaintiff

nor his counsel retained the Anavite Plaintiff was supposedly taking at the time of his failed PED

test. This critical evidence was lost even though Plaintiff’s counsel and one of Plaintiff’s

sponsors had contrived a strategy of blaming Plaintiff’s “elevated andro levels” on his “diet,

supplementation, medication or training . . . .” no later than November 4, 2016. Ex. 2 (11/4/16

email from M. Glazier to D. Fish stamped NB72 to NB73). Plaintiff’s duty to preserve the

Anavite he was supposedly taking in October 2016 further was cemented on December 6, 2016,

which is when Plaintiff’s counsel sent an unopened bottle of Anavite for analysis by a laboratory.

Ex. 3 (2/16/17 Answering Brief in USADA Arbitration wherein Plaintiff’s Counsel stated that

Anavite was “sent for testing on December 6, 2016,” stamped USADA-000050).

Although the nature of the allegations in Plaintiff’s complaint are rather straightforward

(i.e., Anavite contained 1-androstenedione and caused his failed PED test, not any substance

Plaintiff was knowingly consuming), the manner in which Plaintiff arrived at the self-serving

2
1-androstenedione is, by convention, a reference to 5α-1-androstene-3,17-dione, see
https://pubchem.ncbi.nlm.nih.gov/compound/1-Androstenedione, and is an analog of
androstenedione (not otherwise specified), which is, by convention, a reference to 4-androstene-
3,17-dione; see https://pubchem.ncbi.nlm.nih.gov/compound/6128.
3
Plaintiff initially alleged that his failed PED test might also have been caused by Cordygen
Ultra, produced by Millennium Sport Technologies, Inc. See ECF No. 1. Plaintiff agreed to
dismiss Millennium from this consolidated matter on August 8, 2018. ECF No. 58.

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conclusion that Anavite caused his failed PED test is hardly straightforward and makes his

spoliation of the Anavite he was supposedly taking in October 2016 all the more suspicious.

B. Plaintiff’s Initial Statements to USADA Contradict His Allegation that He

was Consuming Anavite in October 2016

When athletes like Plaintiff submit to USADA’s testing regime, they are subject to no-

notice drug testing where an agent from USADA shows up at their home or work unannounced

to administer the test. Prior to submitting a urine test to USADA’s agent, the athlete is required

to complete a “Declaration of Use,” which sets forth the “prescription/non-prescription

medications, any infusions and/or injections, dietary supplements and/or other substances taken

in the last seven (7) days (including: vitamins, minerals, herbs, proteins, amino acids, and any

other dietary supplements).” Ex. 4 (Plaintiff’s USADA Declaration of Use stamped USADA-

000156 to USADA-000162). The USADA Declaration expressly states: “By signing below I

certify that I have reviewed the substances and methods, if any, listed on this declaration. I

confirm that it fully and accurately represents my declaration to the USADA Doping Control

Office and that my declaration is truthful and complete.” Id.

In Plaintiff’s case, he listed over a dozen supplements, including another multivitamin.

Id. Importantly, Plaintiff admitted during his deposition that the “multivitamin” that was listed

on his USADA declaration may have been a multivitamin produced and provided by one of

Plaintiff’s sponsors: NutraBio Labs (“NutraBio”). Ex. 5 (June 25, 2018 Pl. Dep. Tr. at 130:10-

16; 134:14-17). Anavite was not listed on Plaintiff’s USADA declaration. See Ex. 3. While his

test results were pending, Plaintiff did not inform USADA that his declaration was incorrect or

incomplete. And, even after he was informed of his failed PED test, Plaintiff’s counsel emailed

USADA to modify his declaration to include a dietary supplement named Cordygen Ultra, but

not Anavite. Ex. 6 (10/25/16 Email from D. Fish to O. Ikwuakor of USADA stating that “[t]his

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is the only product we believe was not in Lyman’s declaration,” stamped USADA-000325 to

USADA-000326).

C. Plaintiff Attempts to Pin the Blame for His Failed PED Test on Anavite

Shortly after Plaintiff received notification of his failed PED test, he and his counsel

(who also serves as Plaintiff’s manager) began constructing the theory that the 1-androstenedione

detected in his urine was caused by an adulterated dietary supplement that Plaintiff was

ingesting. The crafting of this defense included contacting Mark Glazier, the CEO of NutraBio

Labs, which is Plaintiff’s primary sponsor and provides him with various dietary supplements as

part of that sponsorship.

On October 28, 2016––four days after Plaintiff was informed of his failed PED test––Mr.

Glazier emailed Plaintiff to memorialize a telephone call they had recently conducted. Ex. 7

(10/28/18 email sent by M. Glazier to Plaintiff and stamped NB0086 to NB0087). That email

contained a list of “SUPPLEMENTS” that Plaintiff told Mr. Glazier he was supposedly taking at

the time of his test on October 14, 2016. Id. Strangely, and as noted above, Plaintiff’s assertion

on October 28 to Mr. Glazier that he was taking Anavite on October 14 contradicted Plaintiff’s

counsel’s email to USADA on October 25 that Cordygen Ultra was the only product that was not

listed on Plaintiff’s declaration that otherwise should have been. Plaintiff has never explained

why it took him nearly two weeks after taking his PED test, and submitting his USADA

declaration, to “remember” that he was consuming Anavite. Plaintiff has likewise never

explained why it took him four days after receiving his test results to “remember” that he was

supposedly taking Anavite at the time of his failed PED test.

Indeed, critical and suspicious lapses of memory permeate Plaintiff’s recollections related

to his use of Anavite. When pressed at his deposition regarding the details of his use of Anavite,

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Plaintiff could not remember when he began taking Anavite, how often he was taking it, and

whether he even took it in the days prior to his urine test. Ex. 5 (June 25, 2018 Pl. Dep. Tr. at

319:17-25 (“Q: Can you tell me, to the best of your recollection, when was the last time you took

Anavite before that sample of urine was taken on October 14th, 2016? A: I don’t remember. Q:

When you started taking Anavite, were you taking it on a daily basis? A: I also don’t remember

to the extent which I was taking it.”); 337:14-17 (“Q: To the best of your recollection, can you

tell me how long you were taking Anavite before October 14th, 2016? A: I don’t remember.”).

Returning to the whereabouts of the bottle of Anavite at issue here, Mr. Glazier requested

that Plaintiff “[p]lease overnight the bottle of Gaspari Anavite asap. My contact info is below.”

Ex. 7. However, when Mr. Glazier was deposed, he stated that he had no recollection that

Plaintiff, his counsel, or anyone else associated with Plaintiff, ever sent any Anavite to him or

NutraBio. Ex. 8 (November 19, 2018 M. Glazier Dep. Tr. at 85:19-86:5). He further testified that

neither he nor anyone at NutraBio sent any Anavite for any analysis. Id. at 63:2-5.

D. Plaintiff’s Original Complaint in this Matter Falsely Alleged that LGC Had
Detected 1-Androstenedione in Anavite

In early December 2016, at Mark Glazier’s recommendation, Plaintiff and his attorney

sent an unopened bottle of Anavite to LGC Science, Inc., in Lexington, Kentucky for analysis.4

This was not the bottle that Plaintiff was supposedly taking at the time of his failed PED test. See

Ex. 5 (June 25, 2018 Pl. Dep. Tr. at 147:17-149:5). Although LGC did detect androstenedione

(a/k/a “4-androstene-3,17-dione and/or 5(6)-androstene-3,17-dione”) at trace levels––which

Plaintiff never had quantified by the lab––LGC was unequivocal that it did not detect 1-

androstenedione (a/k/a “5α-androstene-3,17-dione”) in Anavite. See Ex. 9 (March 7, 2017

LGC Certificate of Analysis: 19856, stamped LGC00005 to LGC00015). Put differently, LGC

4
An unopened bottle of Cordygen Ultra was also sent for analysis.

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did not detect the substance that was detected in Plaintiff’s urine during his failed PED

test.

Plaintiff’s original complaint filed in New York State Court did not acknowledge this

important nuance. Instead, Plaintiff alleged that “Anavite contains 1-androstenedione, which is

not disclosed on the label and is prohibited for use by certain mixed martial arts ‘MMA’

athletes.” See ECF No. 1-1 at ¶¶ 4, 65-67 (Docket No. 17-8682, Notice of Removal and State

Court Complaint prior to consolidation into this matter).

Shortly after the original complaint in this action was filed in state court, LGC sent a

letter to Plaintiff’s counsel that was critical of Plaintiff’s claims that LGC had detected 1-

androstenedione in Anavite. Ex. 10 (12/18/17 Letter sent by L. Bishop to D. Fish). LGC’s Head

of Laboratory’s letter to Plaintiff’s counsel unequivocally stated that although “LGC did report

the presence of androstenedione in its results, it was clearly communicated that this was the

isomer 4-androstene-3,17-dione and/or 5(6)-androstene-3,17-dione, . . . [a]t no point has LGC

reported findings for the compound 1-androstenedione or ‘1-Andro’ in Anavite.” As such, LGC

demanded that Plaintiff amend his complaint. Id. Although Plaintiff amended his complaint as

directed by LGC, the pleading now conflates androstenedione (a/k/a/ “4-androstene-3,17-dione

and/or 5(6)-androstene-3,17-dione”) with 1-androstenedione (a/k/a “5α-1-androstene-3,17-

dione”), when the two are not the same and even though only 1-androstenedione was detected in

Plaintiff’s urine during his failed PED test. See ECF No. 60 at ¶¶ 4, 9, 62, 66.

E. Defendants’ Requests that Plaintiff Produce the Anavite he was Allegedly

Taking in October 2016 are Rebuffed

Plaintiff’s Rule 26 Initial Disclosures in this case listed the following:

tangible things that are in the possession, custody and control of the
Plaintiff and that the Plaintiff may use to support his claims or defenses,
unless solely for impeachment:

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Correspondence between Plaintiff or his representatives

Correspondence between Plaintiff or his representatives
Correspondence between Plaintiff or his representatives
LGC Certificate of Analysis: 19856.
Unopened Anavite bottles.
Unopened Cordygen bottles.
Cordygen purchase receipts (Amazon).
Anavite purchase receipt (Vitamin Shoppe).
Emails and social media posts regarding Plaintiff.

See Ex. 11 (Plaintiff’s 12/28/17 Rule 26 Initial Disclosures). Notably absent from Plaintiff’s

Initial Disclosures was the opened bottle of Anavite that Plaintiff was allegedly taking in October

2016. Defendants’ counsel understood this to mean that Plaintiff was asserting that he no longer

possessed the Anavite in question but questioned Plaintiff about this issue at his deposition none-

the-less.

During his deposition on June 25, 2018, Plaintiff testified that he no longer had the bottle

of Anavite he was supposedly taking in October 2016 and that he had provided it to his attorney,

Mr. Fish:

Q: Okay. After this all happened, did you give whatever Anavite you had
to your lawyer?
A: Yes.
Q: And is that Mr. Fish?
A: Yes.
Q: Do you know if you gave him one bottle, more than one bottle?
A: I gave him more than one bottle.
Q: Were some of them opened?
A: I don't remember.
Q: Were some of them sealed?
A: Yes.
Q: At the time immediately preceding October 14th, 2016, did you have
one opened bottle of Anavite that you were using or more than one?
A: That I don't know.
Q: But you gave every bottle you had to Mr. Fish?
A: Yes, everything I had.

***

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Q: The bottle that you may have used for your last dose of Anavite,
before the testing of October 14th, 2016, do you know where that bottle is
as we speak?
A: No.
Q: To your knowledge, have the contents of that bottle, the one that you
used immediately proceeding October 14th, 2016, been tested by any lab?
A: I don't know.

Ex. 5 (Pl. Dep. Tr. at 328:6-329:21).

The day following Plaintiff’s deposition, Defendants’ counsel sent a discovery deficiency

letter to Plaintiff’s attorney addressing a number of issues raised during Plaintiff’s deposition.

Regarding the missing bottle of Anavite that Plaintiff maintained he had provided to Mr. Fish,

Defendants stated:

Furthermore, please provide the lot number for the Anavite that you contend Mr.
Good was taking on or about October 14, 2016. On a related note, it is also our
understanding that you currently have this opened bottle of Anavite in your
possession. Please confirm that you still retain this bottle and further inform
us when and how you obtained that bottle and its contents, their condition
when you received them, under what environmental conditions the bottle and
its contents have been stored, and whether anyone besides yourself has had
access to the bottle and/or its contents at any time. We intend to have this
Anavite tested by a laboratory of our choosing.

Ex. 12 (6/27/18 Letter from D. Marck to D. Fish) (emphasis added).

Plaintiff’s counsel responded on July 4, 2018 that:

I do not know the lot number for the Anavite that Mr. Good was taking on or
about October 14, 2016. We provided you the receipt for that purchase. I never
had that unopened bottle in my possession.

Ex. 13 (7/4/18 email from D. Fish to D. Marck) (emphasis added).

Defense counsel again inquired about the whereabouts of the missing bottle of Anavite

on November 30, 2018, stating:

Your response [on July 4, 2018] referred to an ‘unopened’ bottle. Was that a
typo? To cut to the chase, we would like to know the whereabouts of the opened

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bottle of Anavite your client contends he was taking at the time of the USADA
test in October 2016 so we can have it examined and tested. To the extent no
opened bottle currently exists, please so confirm.

Ex. 14 (11/30/18 Email from D. Marck to D. Fish).

Plaintiff’s counsel responded that his July 4, 2018 email “should have read ‘opened.’ I

never had that bottle in my possession.” Ex. 15 (11/30/18 Email from D. Fish to D. Marck).

Based on Plaintiff’s counsel’s representation, Defendants understand that the Anavite that

Plaintiff was allegedly consuming on October 14, 2016 is no longer available for testing or

inspection. No actual reason for its absence, i.e., accidentally lost or destroyed, has ever been

provided by Plaintiff or his counsel.

Defendants also requested access to the “missing” bottle of Anavite in November 2018

from Mr. Glazier and NutraBio. As the Court is aware from its resolution of Plaintiff’s request to

withhold certain communications under the work-product doctrine (see ECF No. 76, holding that

certain communications with Mark Glazier were protected from disclosure to Defendants),

Defendants were granted leave to depose Mark Glazier, the CEO of NutraBio, even though fact

discovery had concluded. The order granting Plaintiff’s leave to depose Mr. Glazier also ordered

Plaintiff to produce certain non-privileged documents that were previously withheld based on

Mr. Fish’s assertions of work-product protection over them. Id. Those documents were produced

to Defendants on November 15, 2018. Ex. 16 (11/15/18 email from J. Schilleci to D. Marck).

That supplemental production contained the October 28, 2016 email from Mr. Glazier to

Plaintiff, discussed above, wherein Mr. Glazier requested that Plaintiff “[p]lease overnight the

bottle of Gaspari Anavite asap.” Ex. 7 (10/28/16 Email from M. Glazier to Plaintiff stamped

NB0086 to NB0087). Upon receiving a copy of this email from NutraBio, which seemingly

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provided an answer to where the “missing” Anavite was, Defendants amended Schedule A to

their July 2, 2018 subpoena to produce to NutraBio to include:

6) Any and all dietary supplements, including Anavite, sent to NutraBio or

Mark Glazier by Lyman Good or by anyone else on Lyman Good’s behalf.

7) Any and all documents related to any testing, analysis, or other

examination of any dietary supplements, including Anavite, that were
provided by Lyman Good to NutraBio or Mark Glazier.

8) All communications related to any testing, analysis, or other

examination of any dietary supplements, including Anavite, that were
provided by Lyman Good to NutraBio or Mark Glazier.

We expect that any documents or objects responsive to the above will produced at
Mr. Glazier’s deposition on Monday [November 19, 2018].

Ex. 17 (11/15/18 Email from D. Marck to J. Schilleci).

Counsel for NutraBio responded on the morning of November 19, 2018 that “[i]t is my

understanding that after conducting a reasonable review that there are no responsive documents

or items to these additional requests.” Ex. 18 (11/19/18 Email from J. Schilleci to D. Marck). As

noted above, Defendants explored this issue further during Mr. Glazier’s deposition, where he

maintained that neither he nor NutraBio ever received the “missing” Anavite from Plaintiff or his

counsel. Supra.

In sum, Defendants’ many inquiries regarding the “missing” Anavite reveal the

following:

o On October 14, 2016, Plaintiff did not declare he was using Anavite even
though he signed USADA’s declaration “confirm[ing] that it fully and
accurately represent[ed] [his] declaration to the USADA Doping Control
Office and that [his] declaration [was] truthful and complete;”

o On October 25, 2016, immediately after he received his failed PED test,
Plaintiff’s counsel attempted to modify his USADA declaration to include
Cordygen Ultra, but not Anavite;

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o October 28, 2016 is the first day that Plaintiff seemingly begins to allege
that he was taking Anavite on October 14, 2016, only after speaking with
Mr. Glazier, the CEO of a direct competitor to GNI and Hi-Tech;

o Plaintiff testified at his deposition that he does not remember when he

began taking Anavite, how much he was taking, or if he was even taking it
at the time of his failed PED test;

o Plaintiff further testified that he provided the “missing” Anavite to his

counsel;

o Plaintiff’s counsel denies that he ever had the “missing” Anavite; and

o Mr. Glazier denies that he ever received the “missing” Anavite from
Plaintiff even though he specifically requested that Plaintiff “overnight the
bottle of Gaspari Anavite asap.” (Emphasis added).

The suspicious nature of these facts speak for themselves.

III. ARGUMENT

Dismissal of Plaintiff’s Complaint for failing to preserve the “missing” Anavite is

appropriate because its absence prejudices Defendants and deprives them of the ability to

adequately defend themselves.

A. Dismissal is an Appropriate Sanction when a Party Intentionally, Recklessly

or Negligently Spoliates Critical Evidence that Prejudices Another Party’s
Ability to Defend Itself

“Spoliation is the destruction or significant alteration of evidence, or the failure to

preserve property for another’s use as evidence in pending or reasonably foreseeable litigation.”

West, 167 F.3d at 779 (citing Black’s Law Dictionary 1401 (6th ed. 1990)). “[S]poliation of

evidence germane ‘to proof of an issue at trial can support an inference that the evidence would

have been unfavorable to the party responsible for its destruction.’” Byrnie v. Town of Cromwell

Bd. of Educ., 243 F.3d 93, 107 (2d Cir. 2001) (quoting Kronisch v. United States, 150 F.3d 112,

126 (2d Cir. 1998), cert. denied, 531 U.S. 1078 (2001)). Moreover, because “[i]t has long been

the rule that spoliators should not benefit from their wrongdoing,” district courts are granted

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“broad discretion in crafting a proper sanction for spoliation,” including dismissal of the

plaintiff’s action. Id. (citing Chambers v. NASCO, Inc., 501 U.S. 32, 43-45 (1991)). Sanctions for

spoliation serve three main purposes: “(1) deter parties from engaging in spoliation; (2) place the

risk of an erroneous judgment on the party who wrongfully created the risk; and (3) restore ‘the

prejudiced party to the same position he would have been in absent the wrongful destruction of

evidence by the opposing party.’” West, 167 F.3d at 779 (quoting Kronisch, 150 F.3d at 126).5

A party seeking a sanction for spoliation: “must establish (1) that the party having control

over the evidence had an obligation to preserve it at the time it was destroyed; (2) that the

[evidence was] destroyed ‘with a culpable state of mind’; and (3) that the destroyed evidence

was ‘relevant’ to the party’s claim or defense such that a reasonable trier of fact could find that it

would support that claim or defense.” Residential Funding Corp. v. DeGeorge Fin. Corp., 306

F.3d 99, 107 (2d Cir. 2002) (quoting and citing Byrnie v. Town of Cromwell Bd. of Educ., 243

F.3d 93, 107-112).

B. Plaintiff’s Spoliation of the “Missing” Anavite Satisfies the Preservation,

Culpability and Relevance Requirements for a Spoliation Sanction

1) Plaintiff had a Duty to Preserve the “Missing” Anavite Shortly After

His Failed PED Test Results were Received from USADA

“[A]n obligation [to preserve] usually arises when a ‘party has notice that the evidence is

relevant to litigation . . . but also on occasion in other circumstances, as for example when a

party should have known that the evidence may be relevant to future litigation.” Byrnie, 243 F.3d

5
The power to impose sanctions for spoliation flows from two sources: (1) under Fed. R. Civ. P.
37(b) (“when a party spoliates evidence in violation of a court order”), or (2) the district court’s
“inherent power to control litigation.” Id. (citing John B. Hull, Inc. v. Waterbury Petroleum
Prods., Inc., 845 F.2d 1172, 1176 (2d Cir. 1988); Chambers, 501 U.S. at 43-45; Sassower v.
Field, 973 F.2d 75, 80-81 (2d Cir. 1992), cert. denied, 507 U.S. 1043 (1993) (additional citations
omitted). Whether the spoliation sanction is sought under Rule 37 or the Court’s inherent power
to control its docket, the factors considered by the Court are the same. See id.

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at 107 (citing Kronisch, 150 F.3d at 126) (ellipses in Byrnie). Plaintiff’s conduct in this case vis-

a-vie the “missing” Anavite clearly demonstrates that he had a duty to preserve the Anavite he

was allegedly taking in October 2016.

Plaintiff’s UFC contract is clear that any failed PED test would likely result in an

arbitration of those results (an opportunity which Plaintiff immediately availed himself of). Ex.

1. Thus, his duty to preserve the Anavite he was supposedly taking at the time of his failed PED

test arose the moment he intended to blame Anavite for those results, because that evidence

would be relevant to any arbitration with USADA.

Moreover, the record is clear that Plaintiff, as of October 28, 2016––four days after he

received the results of his failed PED test and the same date that Mr. Glazier requested Plaintiff

“overnight the Anavite bottle”––was aware that the Anavite he was allegedly taking in October

2016 would be a critical piece of evidence in any legal proceedings related to his failed test. Ex.

7. As such, Plaintiff’s duty to preserve that opened bottle of Anavite arose no later than that day.

Even if Plaintiff were to disagree, the obligation to preserve arose no later than early

December 2016, by which time Plaintiff’s counsel had arranged to have a lab of Mr. Glazier’s

choosing (LGC Science Inc.) test an unopened bottle of Anavite in order to support Plaintiff’s

theory in his USADA arbitration that his failed PED test was caused by an adulterated

supplement he was taking, rather than any intentional conduct on Plaintiff’s part. Ex. 3. Put

differently, Plaintiff had a duty to preserve the “missing” Anavite the moment he began to

suspect/allege that it caused his failed PED test.

The record is amply demonstrates that Plaintiff was attempting to shift the blame on to

Anavite shortly after he received the results of his test and there is nothing in the record that

supports a conclusion that Plaintiff innocently misplaced the “missing” Anavite during this

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critical period. Significantly, Plaintiff testified at his deposition that he thought he provided the

“missing” Anavite to his attorney––he has never stated that he lost it prior to his knowing it

would be relevant to his defense to his failed PED test.

The Court must also reject any argument from Plaintiff that there was no duty to preserve

the “missing” Anavite prior to the initiation of this litigation in December 2017. As the Court

noted in its October 15 Order, no later than early March 2017, “Plaintiff’s counsel [was]

discuss[ing] strategy for a ‘[p]otential lawsuit’ against the Defendants in this case.” October 15

Order, ECF No. 76. This is further compelling evidence that Plaintiff had a duty to preserve the

“missing” Anavite and that this duty arose long before he filed this action.

2) Plaintiff’s Spoliation of the “Missing’ Anavite Was, at a Minimum,

Grossly Negligent

Plaintiff acted with the requisite culpable state of mind when he lost or destroyed the

“missing” Anavite because such culpability can be found whether the spoliator acts intentionally

or negligently. Reilly v. Natwest Mkts. Group Inc., held that the appropriate sanction for

spoliation should be based on a “case-by-case approach,” and specifically rejected a rule “against

granting an adverse inference instruction where there is no bad faith but there is gross

negligence.” 181 F.3d 253, 267 (2d Cir. 1999), cert. denied, 528 U.S. 1119 (2000). Instead, the

Reilly Court noted that the Second Circuit had “previously approved more severe sanctions based

solely on gross negligence.” Id. The Reilly Court cited to Cine Forty-Second St. Theatre Corp. v.

Allied Artists Pictures Corp., where the Court held that “a plaintiff’s grossly negligent failure to

produce discovery justified the preclusion of all evidence related to damages, even though that

sanction was ‘tantamount to a dismissal’ of plaintiff's claim.” 602 F.2d 1062, 1064 (2d Cir.

1979).

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Significantly, dismissal, as opposed to a mere adverse inference, was considered

appropriate in several spoliation cases. In Bobal v. Rensselaer Polytechnic Inst., the Second

Circuit noted that dismissal was appropriate “when a court finds ‘willfulness, bad faith, or any

fault’ on the part of the” spoliator. 916 F.2d 759, 764 (2d Cir. 1990), cert. denied, 499 U.S. 943

(1991) (Emphasis added). Similarly, the Court in Penthouse Int'l, Ltd. v. Playboy Enters., Inc.,

held that “a grossly negligent failure to obey a discovery order may justify severe disciplinary

measures.” 663 F.2d 371, 387 (2d Cir. 1981).

District Courts have routinely followed the rule that mere negligence is sufficient to

support dismissal for spoliation. In Beers v. GMC, the Court dismissed a plaintiff’s product

liability action where the Plaintiff’s expert was “grossly negligent in permanently altering, and

then even worse, losing the very item th[e] law suit [was] over”––an engine fan for a truck. 97-

CV-482 (NPM/DNH), 1999 U.S. Dist. LEXIS 12285, at *13 (N.D.N.Y. May 17, 1999).

Similarly, in Brancaccio v. Mitsubishi Motors Co., the Court dismissed a personal injury lawsuit

where the plaintiff alleged that the defendant’s truck was fitted with a defective seat belt. 90 Civ.

7852 (RWS), 1992 U.S. Dist. LEXIS 11022, at *3 (S.D.N.Y. July 27, 1992). Prior to

Defendants’ expert being provided the ability to inspect the seat belt, but after Plaintiff’s expert

had examined it, the truck in question, along with the seatbelt, were repossessed and rendered

unavailable. See id. The Brancaccio Court observed that “[w]ithout an ability to examine the car,

the defendants would be greatly frustrated in their ability to defend their case.” Id. at *4.

Accordingly, the Court held that “[s]ince the Plaintiffs are plainly at fault for allowing the car to

be repossessed, their claims must be dismissed.” Id.

Here, there can be little doubt that Plaintiff’s destruction or loss of the “missing” Anavite

occurred at a minimum in a grossly negligent manner. Shortly after he received notice of his

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failed PED test, Plaintiff and his counsel were alleging that Anavite was the reason that Plaintiff

had 1-androstenedione in his urine. At that point, Plaintiff had a duty to preserve the bottle of

Anavite he was supposedly taking in October 2016 for an examination by either USADA

(against whom Plaintiff initiated an arbitration immediately after receiving his failed PED test

results) or by Defendants (who he was considering litigation against no later than March 2017).

Plaintiff’s duty to preserve the “missing” Anavite was clear and his loss/destruction of it was, at

a minimum, grossly negligent. See Beers, supra (plaintiff was “grossly negligent in permanently

altering, and then even worse, losing the very item th[e] law suit [was] over”); Brancaccio,

supra, (similar). Plaintiff accordingly acted with the requisite culpability to support a finding of

spoliation.

3) The “Missing” Anavite is Undoubtedly the Most Important Piece of

Evidence in this Case and Highly Relevant to Defendants’ Defense

The third factor––whether the spoliator destroyed evidence that is relevant to the other

party’s defense––focuses on whether there is “sufficient evidence from which a reasonable trier

of fact could infer that ‘the destroyed [or unavailable] evidence would have been of the nature

alleged by the party affected by its destruction.” Residential Funding Corp. v. DeGeorge Fin.

Corp., 306 F.3d 99, 109 (2d Cir. 2002) (quoting Kronisch, 150 F.3d at 127). The DeGeorge

Court explained this analysis as follows:

where a party seeking an [spoliation sanction] adduces evidence that its opponent
destroyed potential evidence (or otherwise rendered it unavailable) in bad faith or
through gross negligence (satisfying the ‘culpable state of mind’ factor), that same
evidence of the opponent’s state of mind will frequently also be sufficient to
permit a jury to conclude that the missing evidence is favorable to the party
(satisfying the ‘relevance’ factor).

Id.

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Here, Defendants would respectfully submit that the relevance of the “missing” Anavite

is so obvious that any analysis of this issue need not even consider the manner in which it was

lost or destroyed by Plaintiff. Unlike the series of cases in which a party destroys records, and

the other party has no knowledge of their actual contents but there are other circumstantial

reasons to conclude that the contents of the documents would be relevant, see Kronisch, 150 F.3d

at 127, the relevance of the “missing” Anavite is indisputable because it is the key piece of

evidence that could, and Defendants offer likely would, refute Plaintiff’s claims that Anavite was

adulterated. Simply put, defendants have been deprived of the opportunity to test the Anavite to

prove it was adulterated. Thus, the relevance prong of the spoliation factors is easily met.

C. Dismissal of Plaintiff’s Complaint is the Only Relief Appropriate

Considering the Prejudice to Defendants’ as a Result of Plaintiff’s Spoliation
of the “Missing” Anavite

Any spoliation sanction must satisfy the three underlying rationale of this doctrine: “(1)

deter parties from engaging in spoliation; (2) place the risk of an erroneous judgment on the

party who wrongfully created the risk; and (3) restore ‘the prejudiced party to the same position

he would have been in absent the wrongful destruction of evidence by the opposing party.’”

West, 167 F.3d at 779 (quoting Kronisch, 150 F.3d at 126). Dismissing Plaintiff’s complaint due

to his failure to preserve the missing Anavite obviously satisfies the first two rationale.

The final rationale is remedial in nature and seeks to “restor[e] the prejudiced party to the

same position he would have been in absent the wrongful destruction of evidence by the

opposing party.” Kronisch, 150 F.3d at 126. In a case such as this, where the key piece of

evidence that would support Plaintiff’s claims or destroy them is missing, Courts rightly dismiss

the plaintiff’s complaint as a sanction for spoliating that evidence. See Beers, 1999 U.S. Dist.

LEXIS 12285 at *15 (dismissing action where plaintiff was “grossly negligent in permanently

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altering, and then even worse, losing the very item th[e] law suit [was] over”), id. at *14 n.9

(collecting New York state court cases which have dismissed cases under similar circumstances

and noting “[w]hile this federal court is bound to vindicate the Federal Rules of Civil Procedure,

it surely would be an anomaly if plaintiff was permitted to negligently spoliate evidence and

have his case survive in a federal diversity action, but have his claim dismissed if the action was

in state court.”); Brancaccio, supra, (same). The same reasoning applies here with obvious

overlap. Plaintiff destroyed the key piece of possibly exculpatory evidence and has hopelessly

prejudiced Defendants’ ability to defend themselves. Dismissal is the only appropriate remedy.

Moreover, there is no lesser remedy that would cure Defendants’ prejudice resulting from

being deprived of the ability to examine and analyze the very Anavite that Plaintiff was

supposedly taking at the time of his failed PED test. If the Court were to instruct the jury that

they should assume that the results of any analysis of the missing Anavite would reveal that it

was free of 1-androstendione––or otherwise not support Plaintiff’s theory that Anavite is

adulterated––the effect would be the same. In fact, any such inference would mandate the entry

of summary judgment in Defendants’ favor. As such, dismissal is the only appropriate remedy.

See Beers, 1999 U.S. Dist. LEXIS 12285, at *21 (where any remedy less than dismissal would

be tantamount to summary judgment against plaintiff, dismissal is the proper remedy) (citing

Pesce v. General Motors Corp., 939 F. Supp. 160, 165 (N.D.N.Y. 1996)).

As explained above, there are strong reasons to believe that Plaintiff was not taking

Anavite at the time of this urine test on October 14, 2016 and that he only concocted his theory

that Anavite was responsible for his failed test after the fact. These circumstances make the

probative value of the missing Anavite even greater than if Plaintiff had a verifiably documented

history of consuming Anavite. Because there are substantial doubts as to Plaintiff’s actual use of

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Anavite at the time of his failed PED test, his spoliation of the missing Anavite is even more

glaring and suspect.

Moreover, Anavite, other than the bottle purportedly consumed by Plaintiff, has been

analyzed by five laboratories. Only a single one of them, SMRTL, detected 1-androstendione,

and even then only at such a low/trace level that there is strong reason to believe that Anavite

could not, as a matter of scientific certainty, have caused Plaintiff’s failed PED test results. The

other four analyses of Anavite detected no 1-androstendione, even down to levels below the trace

amounts detected by SMRTL. By spoliating the Anavite he was allegedly taking in October

2016, Plaintiff has deprived Defendants of the single piece of evidence that would definitively

rebut the SMRTL test and end this case––a clearer instance of prejudice can hardly be imagined.

Plaintiff’s Complaint should be dismissed.

IV. CONCLUSION

For the reasons stated above and in Defendant’s moving brief, Plaintiffs’ Amended

Complaint should be dismissed as a sanction for his spoliation of the Anavite he was allegedly

taking on October 14, 2016. No lesser sanction will cure the substantial prejudice that has

resulted from Plaintiff’s actions.

Respectfully submitted,

Dated: December 13, 2018 By: s/ Jack Wenik

Jack Wenik, Esq.

Robert M. Travisano, Esq.
David J. Marck, Esq.
EPSTEIN BECKER & GREEN
Attorneys for Defendants
GASPARI NUTRITION, INC., RICHARD
GASPARI, HI-TECH
PHARMACEUTICALS, INC., AND
JARED R. WHEAT

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