The New Hampshire Attorney General’s Office is asking a judge to dismiss Andy Sanborn’s attempt to terminate the ongoing criminal investigation against him or disqualify the current investigating team from continuing to pursue the case.
Sanborn, the owner of the Concord Casino and the Draft Sports Bar and Grill on South Main Street in Concord, filed a lawsuit claiming state investigators obtained and accessed privileged documents that included private attorney-client communications while executing a search warrant at his business.
The search warrant was executed in May as part of a criminal investigation into Sanborn’s application for state pandemic loans. The search accessed thousands of documents, including, personal videos, photos and financial records.
During a hearing in Merrimack County Superior Court Tuesday, attorney Alexander Kellerman acknowledged that investigators involved in the case accessed three privileged documents — two financial records and a memo as a result of technical error and human error.
“It’s clear that this was an inadvertent breakdown,” Kellerman said. “There’s absolutely no evidence, none whatsoever, that the case team was seeking out privileged materials or that they were attempting to infringe on any sort of attorney-client relationship.”
Sanborn’s legal team said the breach was so significant, they asked Judge John Kissinger to consider remedies that included but were not limited to dismissing the evidence seized from the search warrant and barring the current team investigators from continuing to work on the case.
They said the legal memo sent to Sanborn outlined their overall legal strategy and the details of the sale of Win Win Win, which operates Concord Casino.
“To me, that’s a very tangible, significant prejudice point,” Sanborn’s attorney Zach Hafer said. “They have seen documents that show how we’re thinking about this and how our client is thinking about this.”
The search led to the seizure of five computers and more than 100,000 pages of documents. Among the files on Sanborn’s computers, some contained “Zach” in the filename, a name recognized by state attorneys as belonging to one of Sanborn’s attorneys.
Although the state claimed these documents were flagged and removed from the database, Kissinger expressed dissatisfaction with how the state executed the search warrant and that state attorneys did not anticipate the search could produce privileged documents.
“That is baffling to me because you knew that they had lawyers representing Mr. Sanborn and his entities on the very subject matter of your investigation,” said Kissinger. “Where did you think those files would be?”
Separate investigations
Kellerman said that the financial documents accessed pertain to a separate matter involving the misuse of $844,000 in federal pandemic funds and do not affect the issue the state is currently investigating.
With the federal loans, Sanborn purchased two Ferraris for himself and a Porsche for his wife, Laurie Sanborn, a state representative, according to an investigation by the State Lottery Commission and Attorney General’s Office that found him unfit to be associated with charitable gaming in the state.
The investigation under dispute is into the misrepresentation of revenue figures in the application for the state pandemic funds Sanborn received.
Sanborn was arrested Oct. 16, the same day his lawyers were preparing legal filings in the case.
“It caught us totally off guard,” Hafer said.
The arrest warrant accuses Sanborn of misrepresenting the revenue of his casino in Concord to receive additional money from the state of New Hampshire’s Main Street Relief Fund, an economic support for small businesses during COVID-19.
“Andy Sanborn distorted the casino’s gross receipts and this falsification resulted in Win Win Win and Andy Sanborn receiving $188,474.33 more in grant monies than the amount to which they were due under the grant formula,” the Attorney General’s Office said in a statement.
In addition, the Attorney General indicted Sanborn’s company, Win Win Win, on similar charges.
Hafer argued that the indictment is biased, pointing out that The Draft — Sanborn’s company that owns and operates a sports bar and grill in the same building as the casino — was not indicted.
“We now know they indicted Win Win Win, a single-member LLC, fully aware of how critical the sale was to our strategy while failing to indict The Draft,” Hafer said. “If you review the allegations related to the indictment, you’ll see that The Draft actually committed more significant misrepresentations in terms of the dollar amounts involved.”
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