Spoliation and Freedom of Information

Larry Wescott of the Electronic Discovery Blog is covering a judge’s ruling about a Connecticut case that is relevant to open records concerns.

A Jane Doe plaintiff had filed a lawsuit against Norwalk Community College, which is one of about ten colleges in the Connecticut Community Colleges system.

The Jane Doe plaintiff, in the course of her lawsuit against Norwalk Community College, filed a motion for discovery of electronic documents. Presumably, she felt that electronic documents–probably mostly including emails–existed on the college’s computer servers that would aid her in winning her lawsuit.

The college responded that it had no such electronic documents. She didn’t believe them, so she filed a second lawsuit, asking the judge to order the college to turn over its computer hard drives to a computer forensic expert chosen by her, so that he could examine the hard drives to determine if spoliation had occurred.

“Spoliation” means the intentional destruction or hiding of documents relevant to litigation.

The judge granted her request, a computer expert she hired look at the college’s computer hard drives, and the computer expert said that the hard drives had been “scrubbed”, which is strong evidence of spoliation.

The judge looked at the evidence, and agreed with the Jane Doe plaintiff and her expert, ruling last Monday against Norwalk Community College with harsh words or, as Larry Wescott put it, Adverse inference granted where producer’s failure to preserve evidence was grossly negligent.

In that sentence, “producer” refers to Norwalk Community College which, under the lawsuit filed against it, had a legal obligation to produce the requested and relevant records.

What’s the open records angle to this story?

Well, Norwalk Community College is subject to Connecticut’s FOIA laws. Connecticut is blessed with a state agency that serves as the ombudsman for complaints when citizens believe open records requests are improperly denied.

When I read Larry’s story about the electronic discovery lawsuit, I couldn’t tell for sure whether Norwalk Community College is a FOIAable entity, so I checked with the Connecticut Freedom of Information Commission. A representative there was extremely helpful and said that under Connecticut’s FOIA laws, Norwalk Community College is indeed FOIAable.

That means that whether the Jane Doe plaintiff had filed her lawsuit or not, she was still entitled to copies of the electronic documents that the college, apparently falsely, claimed never existed. However, typically even a strong open records ombudsman such as the Connecticut agency, would not have the same power that a judge has in a lawsuit, which is to order and compel a plaintiff to hand over its hard drives for examination by an independent agency.

In speaking with Thomas Hennick at the CFOIC, if a citizen in Connecticut had filed an open records request with Norwalk Community College and been told that no electronic records existed which matched the request, that citizen would have the option of filing a complaint with the CFOIC. If the complaint moved forward, a hearing would be scheduled where the person who wanted the records would be able to explain why he or she believed the records did exist, and a representative of the FOIAable agency would provide their statement asserting that no such records did exist.

At this point, according to Mr. Hennick, the hearing examiner would have to make a ruling based on a credibility assessment of the two parties as to whether further efforts would be made to require the FOIAable entity to re-examine its computers. Whether that hearing examiner has the same right that a judge has — namely, to order the FOIAable agency to turn over its hard drives to an independent expert selected by the citizen alleging spoliation — isn’t clear.

However, clearly, FOIAable entities are capable of “gross negligence”, as the judge said, when it comes to records retention and possible outright, illegal, spoliation.

With that in mind, states legislatures should consider legislation enabling state agencies like the CFOIC to order independent forensic examination of computer hard drives when probable cause exists to believe that spoliation occurred or may have occurred.

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