Tuesday, August 05, 2008

Delaying Discovery

The legal skirmishing in the civil suits by both the falsely accused and the unindicted players has featured two unusual items of contention.

The first was Duke’s motion to close down the Duke Lawsuit website—even as the University hosted a website containing (among other items) President Brodhead’s April 5, 2006 letter to the community. (That document severely denigrated the personal character of the very people now suing the University.) The judge correctly decided that both websites were proper under legal ethics guidelines.

The second unusual item has been a refusal first by Duke (in the suits by the unindicted players) and then by Durham (in all the cases) to formally confer with the plaintiffs’ attorneys about discovery matters. The Duke/Durham argument in a nutshell: all the motions to dismiss will be granted, and therefore our clients shouldn’t have to submit to the burdensome requirements associated with the discovery process.

Intellectually, the Duke/Durham argument is a perfectly reasonable one: why should defendants, in a lawsuit they consider frivolous, have to deal with discovery matters before a judge has even decided whether the lawsuit can go forward?

Legally, however, the argument is bizarre, as revealed in a motion filed yesterday by attorneys for the falsely accused players. As the motion notes, Rule 26(f) requires attorneys in a civil suit to confer “as soon as practicable” about establishing a schedule for discovery issues, and the rule doesn’t give defendants the unilateral power to override its terms.

As the motion notes, some of Durham’s arguments strain credulity: the city, claims Durham attorneys, shouldn’t have to deal with discovery matters involving the falsely accused players until the court decides motions to dismiss involving the unindicted players. Or the city, claims Durham attorneys, has no relevant information to turn over, because the criminal-case attorneys conducted their own investigation and brought all relevant facts to light.

These assertions make no sense.

Other aspects of Durham’s justification for refusing to begin the discovery process are sheer demagoguery, part of the continuing effort to suggest that the “wealthy” lacrosse players should have no right to sue the “poor” citizens of Durham. In the words of yesterday’s motion,

The City Defendants’ claims that starting discovery now would waste “taxpayer money” ring hollow, given that the City has announced that it already spent its insurance deductible and that its defense, and those of its defendant employees, are now being funded exclusively by the City’s insurance carrier, not Durham taxpayers.

Moreover, as yesterday’s response makes clear, the Durham/Linwood Wilson briefs didn’t even challenge all points in the lawsuit—meaning that portions of the civil suit would still go forward even in the (wildly unlikely) event that the defendants scored a 100% victory in their motions to dismiss.

The real reason why Durham has appeared to reluctant to begin the discovery process, despite the seemingly clear requirement under federal law to do so? It’s not hard to determine. From yesterday’s motion:

Far from obviating the need to commence discovery, the parties’ prior communications regarding electronically stored information (“ESI”) demonstrate the need to commence such discovery as soon as possible. Eight months after Plaintiffs had asked Defendants to preserve potentially relevant ESI, the City of Durham’s counsel not only had failed to secure the computers used by the City Defendants—they had not even determined which of them used a City-issued computer . . . Even more remarkably, the City’s counsel revealed to Plaintiffs that the City had made no effort to locate or secure the computers used by its two lead investigators, Defendants Gottlieb and Himan, for purposes of this litigation . . . The City also claims that it has no server-based emails[??!!] for a significant portion of the relevant time period.

The explanations for such a delay don’t inspire confidence: utter incompetence, malevolence, or both.

Given that their position defies both established federal procedure and basic common sense, what really motivates the Durham attorneys’ delaying tactics? The answer, it would seem, is risk-avoidance. Despite the fact that the city has scant chance of prevailing at trial against the falsely accused players, Durham did not seriously consider a settlement offer. The move was based largely on the (perhaps correct) assumption that demagogic appeals to a civil-suit jury might hold down the amount of the ultimate judgment.

This strategy, however, carries with it one enormous risk: that the discovery process in the civil suit would uncover evidence of misconduct so blatant (such as direct intent to frame) that even demagogic appeals won’t prevent a massive judgment against the city. So why not minimize the chances of such an outcome by delaying discovery as long as possible, and then claiming that significant items (such as Gottlieb’s and Himan’s computers) somehow got lost in the shuffle?


Anonymous said...

"...the City had made no effort to locate or secure the computers used by its two lead investigators, Defendants Gottlieb and Himan, for purposes of this litigation . . . The City also claims that it has no server-based emails[??!!] for a significant portion of the relevant time period."

In a case where no notes were kept by anybody--not the DA, not the investigating officers, not the DNA lab;

in a case where no photos were taken of chalk boards charting the case in the police offices;

in a case where cell phone evidence which might have been exculpatory was allowed to degrade;

in a case where police tapes which had been requested in a defense motion were thereafter erased before they could be turned over;

why is anyone in the least surprised that the city can't find any relevant email records??

Anonymous said...

And another point, not saying anybody should do this but, if computers, e-mails, and a whole bunch of other relevant documents are "lost" what would prevent someone sympathetic to the plaintiffs from making up and printing out a bunch of really incriminating stuff and presenting it as having been given to them by someone inside Duke or Durham. 'Course my guess all along was that plaintiffs attornies have plenty of real documents etc. regarding the many malfeasances committed by the defendants.

Anonymous said...

One thing to remember is that Durham authorities have been destroying evidence from the early days. For example, two years ago, attorneys for the accused players requested the police communications tapes for the night in question.

The city, which had the tapes in its possession AT THAT TIME, promptly destroyed them, but faced no sanctions from the judge. (I believe it was Stephens.)

On numerous occasions, police and Nifong failed to memorialize the meetings (or destroyed the notes afterward), which also is evidence of a coverup.

The level of corruption here is stunning, both on behalf of Duke University and Durham. The defendants are sending the clear message that they are above the law, and that they are not subject to any legal challenges, period.

I am waiting to see what the judge does in this situation. It is my hope that he does what is right.

Dan Weber said...

I think it's just plain arrogance.

If anything really damaging was in their evidence records, they "accidentally" destroyed it months ago.

It's for the greater good, you see.

Debrah said...

The Duke/Durham argument in a nutshell: all the motions to dismiss will be granted, and therefore our clients shouldn’t have to submit to the burdensome requirements associated with the discovery process.

Yes, this is bizarre and presumptuous.

Duke University's administration and the city of Durham major in bizarre and presumptuous.

Just a little more OID melodrama for KC's next book.

Anonymous said...

Even if the city did destroy the evidence, the failure of counsel to determine what is missing and what is not may result in significant spoliage sanctions. Though the ultimate spoliage sanction may be a finding of liability against the Defendants, leaving only the amount of damages to a jury, it could be that the documents (yes, e-mail is considered a document for discovery purposes)are so inflammatory that it's worth the risk of a liability finding to keep the damages down.

Debrah said...

Seems all of Durham and Duke wish to go back into the Hoax history and rewrite it.

This will be a very difficult task for the disgruntled revisionists.

Too many of us witnessed it as it was happening!

Anonymous said...

Shouldn't the state bar disbar the Duke/Durham attorneys as they did not ensure that the evidence (e.g emails) was stored ?

Anyway, that would not hurt Gorelick too much (her buddies Sandy Berger and B. Clinton lost they law licenses and they got away)

Anonymous said...

The level of corruption here is stunning, both on behalf of Duke University and Durham.

And now the Chairman of the BoT of Duke is running Wachovia. That fact does not inspire confidence.

2008 GOALS said...

Don't the new Federal Rules governing electronic discovery assume that any electronic data that hasn't been preserved would be in favor of the opponents?

I work for a large law firm but I'm not an attorney, but I can't believe Gorelick would let her name and reputation be associated with this debacle.

Anonymous said...

The feds shoulda investigated when they were invited to do so. Instead, another missed opportunity. Ironic, since Gorelick was the queen of missed opportunities at DoJ, when she shut down the FBI terror investigation in Minneapolis, prior to Nine-Eleven.

Mad Hatter said...

Go Debrah! Don't give those bastards any wiggle room. Nail the lot! They are a dishonest bunch of "hooligans!"

Gary Packwood said...

Durham is sending Duke the SOS narrative via their response to legal questions.

Suppose Duke is listening?

Anonymous said...

Is Brodhead a Communist?

Ex-prosecutor said...

I agree with Anonymous 1:36 PM that the defendants and lawyers face substantial problems in, apparently, not preserving clearly relevant and requested documents. Such destruction can result in the negative inference that the defendants were conscious of their guilt and that the records were destroyed because they would have aided the plaintiffs.

This can really put the defense lawyers on the hot-seat, because they can be made to explain what efforts they made to collect and preserve records and made to pay the plaintiffs' costs in chasing down such records as exist and identifying those which were destroyed. In a case of this magnitude, these costs could be significant and, in some cases, levied against defense lawyers themselves.

The plaintiffs have very smart and determined lawyers, with substantial resources behind them are are both well able and exceptionally equipped to turn the defendants' intransigence into a weapon for the Duke players.

It lets the plaintiffs' attorneys take the high road in seeking records, dramatically increases the costs of defending the suit and, because of resulting negative inferences, strengthens the plaintiffs' cases.

In short, the defendants have made a really dumb mistake.

Debrah said...

Lacrosse lawyers push for city evidence

By Ray Gronberg : The Herald-Sun
Aug 6, 2008

DURHAM -- Lawyers for three members of Duke University's 2005-06 men's lacrosse team who were falsely accused of rape are concerned that evidence crucial to their civil rights case could disappear or already be lost.

They filed legal papers late Monday that say they're not convinced the city has corralled all the documents relevant to the case.

As of April, they said, city officials hadn't secured the computers two detectives, former Sgt. Mark Gottlieb and former Investigator Ben Himan, used while they were investigating a stripper's claim she'd been raped by three lacrosse players.

Nor were they even sure which of the officials named as defendants in the case had even used a computer, the legal team for the former players said.

That shows "the need to commence discovery as soon as possible," they said, particularly since "discovery is inevitable" because the city's defense team let seven major allegations go unchallenged by a dismissal motion.

Monday's filing is the latest legal skirmish between lawyers for David Evans, Collin Finnerty and Reade Seligmann and the city.

The ongoing quarrel is about whether the two sides should sit down and begin planning discovery, the term lawyers use for the process of exchanging documents and taking depositions from witnesses.

Attorneys for the falsely accused players want that planning to go forward immediately. But the city's lawyers say it can wait until U.S. District Court Judge James Beaty Jr. rules on the motions they've filed seeking dismissal of the players' claims.

Clerks forwarded all the motions to Beaty in June, and it's not clear when the judge will rule. At least some of the parties want Beaty to first hold oral arguments so they can make their pitch to him in person.

Letters the two sides exchanged beginning late last August show that the players want to lasso documents created or received by 84 city officials, including all seven members of the City Council.

The city in turn signaled it wants the same from the three players.

For both sides, discovery among other things means duplicating the hard drives of any computers the officials or players used, and turning over correspondence exchanged via e-mail, Blackberry, cell phone text-messaging or through social-networking Web sites like Facebook.

The city's lawyers in May wrote the opposition to say they'd "imaged the computers of each" official the players wanted material from, including Gottlieb and Himan.

But they'd already acknowledged that some electronic documents might have disappeared because the city didn't start saving documents until the players' attorneys asked them to last August.

Because of the city IT staff's practice of reusing backup tapes, the most recent backups for files on the city's computer servers date from January 2007 and for e-mail messages August 2007. If someone deleted information before that, it's gone.

Such problems have already given lawyers for the players cause to complain. For example, the 911 tapes from the March night in 2006 when police first learned of the stripper's charges no longer exist.

Nor is it clear documents would necessarily shed all that much light on what happened behind the scenes, given Durham officials' propensity for discussing things on the phone or in person rather than in writing.

Notes officials took from Mayor Bill Bell's regularly scheduled Wednesday morning meetings with City Manager Patrick Baker, for example, show the two discussed the case every week after reports surfaced that police took DNA samples from team members to the time grand juries indicted the three players.

But save for that bare acknowledgement, they don't document the substance of those conversations.

Debrah said...

TO Mad Hatter--

And you get your wrists slapped for staying away so long!

Anonymous said...

The idea that Durham would argue that there is an economic reason that they shouldn't be held liable for their tortuous behavior is pure rubbish. But it does give the Duke/Durham team additional time to lose or destroy evidence.

Anonymous said...

Again Durham lives up to my nickname, Armpit of the Piedmont. Is there anyone in the city government that has an IQ above 10?