Ken Kesey, an American author best known for his novel One Flew Over the Cuckoo’s Nest (1962), once exclaimed “To hell with facts! We need stories!”
Mr. Kesey’s exclamation often becomes the storyline when a party to litigation mismanages their e-discovery preservation obligations and is then forced to respond to sanctions and spoliation claims.
This truth recently played out when a Michigan federal court ordered (PDF) the city of Detroit to pay costs and attorney fees for its failure to preserve emails relevant to litigation. The tab for both stands at approximately $735,000. The Court also ordered an adverse jury instruction for its e-discovery preservation failures.
Background Leading up to the E-Discovery Sanctions
To appreciate why Mr. Kesey’s exclamation comes to mind in response to mismanaged e-discovery preservation, a little background on the underlying dispute is necessary.
Specifically, the e-discovery sanctions were ordered in a case involving claims brought by the children of an exotic dancer who was murdered in Detroit. Normally (and unfortunately) this would not be news.
But according to the Third Amended Complaint (PDF), the slain dancer was alleged to have “performed” at a 2002 party “hosted” at the Manoogian Mansion, which was the residence of Detroit’s former Mayor, Kwame Kilpatrick.
It is alleged that attendees at this party included Kwame Kilpatrick, his entourage, Detroit police officers, and exotic dancers. It is further alleged that the party was “crashed” by Kwame’s wife who then physically attacked the slain dancer (Tamara Greene). Shortly afterwards Ms. Greene was shot, which fueled speculation that her death was somehow tied to the party.
The Lawsuit Behind the E-Discovery Sanctions
This party and subsequent homicide – or so the lawsuit story goes – was the subject of a massive cover up involving the Mayor, police officers and other high ranking city officials loyal to the mayor. As part of this cover up Detroit city officials, police officers, and others deliberately and repeatedly delayed and obstructed the murder investigation and actively concealed material evidence in the investigation of Greene’s death in order to protect those involved in the infamous “Manoogian Mansion Party.”
E-mail Spoliation – When the Facts Take a Backseat to the Story
As conspiracy theories go, this arguably falls short of a second gunman and grassy knolls. But going back to Mr. Kesey, the facts of the underlying claim (whether a fight between a mayor’s wife and a stripper took place at an illicit party) become less important when the storyline turns to deleted emails and destroyed evidence.
In this regard, Michigan’s then Attorney General Mike Cox, Michigan state police, news organizations, and others investigated whether an illicit party at the Detroit mayoral mansion ever took place. These investigations showed no such party occurred.
In fact, the 2003 investigation by Michigan’s Attorney General consisted of examining over 30 witnesses under oath; over 120 witnesses were interviewed; approximately 90 subpoenas were issued for witnesses and documents; forensic analysis of computers was performed; and over 10,000 pages of documents and records were reviewed.
But when deleted or missing emails come into play, the facts are not the story. Instead, the story as told by the Court is that a defendant failed (miserably I might add) to preserve emails and now must pay attorney fees and costs and go into trial with an adverse jury instruction against it.
The story in the media is even worse: [Lawyer] wants Detroit to pay his firm $735,622 over destroyed e-mails“, “Judge scolds city over trashed e-mails in Tamara Greene case,” or Federal judge slams City of Detroit for destroying e-mails in stripper slaying case.”
The Take Away
The bottom line is that stories like this – monetary sanctions and negative headlines – underscore the need for properly responding to e-discovery preservation obligations. Recommendations for properly addressing e-discovery matters in response to employment litigation have previously been provided here, here and here.
Additionally, feel free to contact me for more information. I’ve been responsible for responding to e-discovery challenges on behalf of corporate clients going back to 2001. I have also implemented best practices and protocols for law firms and been hired as an e-discovery trial expert in state and federal employment litigation matters.