A real life story unfolded in the City of Monte Sereno, California, that contained a strange admixture of elements culled from Dickens, Hawthorne and Gibson, and spiced up by the Internet.
Joseph and Darla Padgett sued the City for violation of civil rights, violation of the California Civil Code, abuse of process, civil extortion, intentional infliction of emotional distress, and negligent infliction of emotional distress. This arose from an anonymous threatening letter that the Padgetts claimed was sent by certain employees of City Hall to them in 2004. Enclosed with the letter was a 1994 newspaper article which reported Mr. Padgett's conviction of a misdemeanor crime. This article was downloaded from the Internet. A City employee by the name of Lisa Rice admitted in 2005, to be the author and sender of the threatening letter from her workstation at City Hall. She stated that she wrote the letter on her own volition and she did not tell anyone about it. According to the Padgetts, Rice wrote the letter at the direction of other City employees, including City Manager Brian Loventhal.
As the drama unfolded, the Padgetts sought to discover the connection between Rice and Loventhal relative to the letter. They applied for a Motion to Compel inspection of the City's computers, printers, and backup tapes. At first, their motion was denied by Judge Seeborg on the ground that the burden and expense of the discovery to the City outweighed the potential benefit of the inspection. The Padgetts moved for a reconsideration. The Court conducted a hearing on April 14, 2006 and it specifically ordered the City’s counsel to "continue to preserve everything." Counsel for the City asked the Court to permit that the computers in question remain in use and represented that "nothing is being deleted". On December 28, 2006, the Court ordered the inspection of certain computer workstations, hard drives, and laptop computers used by City employees Rice, Loventhal and another employee.
In January of this year, the Padgetts learned that the City had destroyed Loventhal's laptop hard drive in August 2006. According to the City, one of its employees, a Ms L'Heureux, with no connection to the current litigation serviced Loventhal's laptop after it had "crashed". Acting under the false impression that the case against the City by the Padgetts was already settled, she then discarded the defective hard drive. The Padgetts then filed a motion for terminating sanctions, monetary sanctions, and entry of default judgment (terminating motion) against the City for its bad faith in misrepresenting the existence and preservation of the relevant e-data in its custody that are crucial to the case.
In considering the Padgett’s motion, the court noted that as early as March 26, 2006, the defendant City and Loventhal had notice that the Padgetts intended to examine Loventhal’s laptop hard drive. When the court ordered the City to “preserve everything” that included Loventhal’s laptop hard drive. Accordingly, the court found that the City and Loventhal have failed to take adequate precautions to preserve Loventhal's computer equipment for forensic analysis. This disregard, “(w)hether characterized as willful or negligent…constitutes the kind of "fault" sufficient to warrant sanctions, including dismissal, under the Court's inherent powers”. However, the court did not grant the entry of judgment of default against the City because it reserved its right to examine further the question of damage to the Padgett’s claim once the full discovery process has been completed. In this connection, the court noted that upon the hearing of the terminating motion, the City stated that the discarded hard drive had suddenly appeared “without explanation”. For now, the court ruled that the Padgetts are entitled to monetary sanctions due to the delays they suffered, the costs of filing the terminating motion and readying their computer expert.
The court ruled that the defendant City shall reimburse the Padgetts all the monetary costs associated to the filing of their terminating motion and any subsequent supplement briefings. The costs shall cover, but is not limited to, the Padgetts’ costs for travel to the hearing and time spent researching and gathering evidence to present their terminating motion. The City is liable to pay for the cost of the Padgetts' computer expert, up to the date of the court’s decision on the terminating motion, to cover “any dislocation of his service”. The City finally is liable to bear the cost of the Special Master that the Court has already appointed to manage the e-discovery process.
This case is proof that if the judges who dispense justice are trained to handle e-discovery issues correctly and fairly, then e-discovery is a leveling process. It would not matter if the opposition is moneyed or powerful like City Hall. Ordinary citizens whose rights have been trampled upon, in a manner that implicates e-data or their storage devices, can seek relief through measures, some of which have no counterpart in the redress of grievances that involve paper data.
Copyright by Atty. Noel Guivani Ramiscal. The views expressed are my own and do not constitute legal advice. All Rights Reserved. Preferred citation for this issue:
Ramiscal, Noel Guivani, TheCyberLawyer Issue 4: Can you Fight City Hall? The Liability of a City to Preserve E-Data (July 12, 2007) (2007) Date of Access
For comments, write: thecyberlawyer@gmail.com
Joseph and Darla Padgett sued the City for violation of civil rights, violation of the California Civil Code, abuse of process, civil extortion, intentional infliction of emotional distress, and negligent infliction of emotional distress. This arose from an anonymous threatening letter that the Padgetts claimed was sent by certain employees of City Hall to them in 2004. Enclosed with the letter was a 1994 newspaper article which reported Mr. Padgett's conviction of a misdemeanor crime. This article was downloaded from the Internet. A City employee by the name of Lisa Rice admitted in 2005, to be the author and sender of the threatening letter from her workstation at City Hall. She stated that she wrote the letter on her own volition and she did not tell anyone about it. According to the Padgetts, Rice wrote the letter at the direction of other City employees, including City Manager Brian Loventhal.
As the drama unfolded, the Padgetts sought to discover the connection between Rice and Loventhal relative to the letter. They applied for a Motion to Compel inspection of the City's computers, printers, and backup tapes. At first, their motion was denied by Judge Seeborg on the ground that the burden and expense of the discovery to the City outweighed the potential benefit of the inspection. The Padgetts moved for a reconsideration. The Court conducted a hearing on April 14, 2006 and it specifically ordered the City’s counsel to "continue to preserve everything." Counsel for the City asked the Court to permit that the computers in question remain in use and represented that "nothing is being deleted". On December 28, 2006, the Court ordered the inspection of certain computer workstations, hard drives, and laptop computers used by City employees Rice, Loventhal and another employee.
In January of this year, the Padgetts learned that the City had destroyed Loventhal's laptop hard drive in August 2006. According to the City, one of its employees, a Ms L'Heureux, with no connection to the current litigation serviced Loventhal's laptop after it had "crashed". Acting under the false impression that the case against the City by the Padgetts was already settled, she then discarded the defective hard drive. The Padgetts then filed a motion for terminating sanctions, monetary sanctions, and entry of default judgment (terminating motion) against the City for its bad faith in misrepresenting the existence and preservation of the relevant e-data in its custody that are crucial to the case.
In considering the Padgett’s motion, the court noted that as early as March 26, 2006, the defendant City and Loventhal had notice that the Padgetts intended to examine Loventhal’s laptop hard drive. When the court ordered the City to “preserve everything” that included Loventhal’s laptop hard drive. Accordingly, the court found that the City and Loventhal have failed to take adequate precautions to preserve Loventhal's computer equipment for forensic analysis. This disregard, “(w)hether characterized as willful or negligent…constitutes the kind of "fault" sufficient to warrant sanctions, including dismissal, under the Court's inherent powers”. However, the court did not grant the entry of judgment of default against the City because it reserved its right to examine further the question of damage to the Padgett’s claim once the full discovery process has been completed. In this connection, the court noted that upon the hearing of the terminating motion, the City stated that the discarded hard drive had suddenly appeared “without explanation”. For now, the court ruled that the Padgetts are entitled to monetary sanctions due to the delays they suffered, the costs of filing the terminating motion and readying their computer expert.
The court ruled that the defendant City shall reimburse the Padgetts all the monetary costs associated to the filing of their terminating motion and any subsequent supplement briefings. The costs shall cover, but is not limited to, the Padgetts’ costs for travel to the hearing and time spent researching and gathering evidence to present their terminating motion. The City is liable to pay for the cost of the Padgetts' computer expert, up to the date of the court’s decision on the terminating motion, to cover “any dislocation of his service”. The City finally is liable to bear the cost of the Special Master that the Court has already appointed to manage the e-discovery process.
This case is proof that if the judges who dispense justice are trained to handle e-discovery issues correctly and fairly, then e-discovery is a leveling process. It would not matter if the opposition is moneyed or powerful like City Hall. Ordinary citizens whose rights have been trampled upon, in a manner that implicates e-data or their storage devices, can seek relief through measures, some of which have no counterpart in the redress of grievances that involve paper data.
Copyright by Atty. Noel Guivani Ramiscal. The views expressed are my own and do not constitute legal advice. All Rights Reserved. Preferred citation for this issue:
Ramiscal, Noel Guivani, TheCyberLawyer Issue 4: Can you Fight City Hall? The Liability of a City to Preserve E-Data (July 12, 2007) (2007) Date of Access
For comments, write: thecyberlawyer@gmail.com
Interesting to know.
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