RE: TTV v. IRS et al, 1:13-cv-00734 (D.D.C.), Litigation Hold – Preservation of Responsive Evidence
Dear Counsel:
As you know, True the Vote (“TTV”) filed its lawsuit in the
above-referenced matter on May 21, 2013. By the time TTV filed its suit,
the Internal Revenue Service (“IRS”) and its employees and officials
were on notice of the commencement of several congressional
investigations. The House Committee on Oversight and Government Reform
(“Oversight”), the House Committee on Ways and Means (“Ways and Means”)
and the Senate Finance Committee (“Senate Finance”) (collectively, “the
Committees”) have each provided notice to the IRS of their ongoing
investigations into the IRS, and specifically, Defendant Lois Lerner and
her activities related to the issues involved in the TTV litigation for
over a year now.
Late Friday, the IRS apparently advised the Ways & Means
Committee that the IRS has “lost” Lois Lerner’s hard drive which
includes thousands of Defendant Lerner’s e-mail records. However,
several statutes and regulations require that the records be accessible
by the Committees, and, in turn, must be preserved and made available to
TTV in the event of discovery in the pending litigation. Those statutes
include the Federal Records Act, Internal Revenue Manual section
1.15.6.6 (which refers to the IRS’s preservation of electronic mail
messages), IRS Document 12829 (General Records Schedule 23, Records
Common to Most Offices, Item 5 Schedule of Daily Activities), 36 C.F.R.
1230 (reporting accidental destruction,) and 36 CFR 1222.12. Under those
records retention regulations, and the Federal Records Act generally,
the IRS is required to preserve emails or otherwise contemporaneously
transmit records for preservation.
Therefore, the failure for the IRS to preserve and provide these
records to the Committees would evidence either violations of numerous
records retention statutes and regulations or obstruction of Congress.
Federal courts have held, in the context of trial, that the bad faith
destruction of evidence relevant to proof of an issue gives rise to an
inference that production of the evidence would have been unfavorable to
the party responsible for its destruction. See Aramburu v. The Boeing Co.,
112 F.3d 1398, 1407 (10th Cir. 1997). The fact that the IRS is
statutorily required to preserve these records yet nevertheless publicly
claimed that they have been “lost” appears to evidence bad faith. 18
U.S.C. § 1505 makes it a federal crime to obstruct congressional
proceedings and covers obstructive acts made during the course of a
congressional investigation, even without official committee sanction.
See, e.g., United States v. Mitchell, 877 F.2d 294, 300–01 (4th Cir. 1989); United States v. Tallant, 407 F. Supp. 878, 888 (D.N.D Ga. 1975).
Further, by letters dated September 17, 2013, TTV provided notice to
counsel for the individual IRS Defendants in this litigation. The
“Individual Defendants” are: Steven Grodnitzky, Lois Lerner, Steven
Miller, Holly Paz, Michael Seto, Douglas Shulman, Cindy Thomas, William
Wilkins, Susan Maloney, Ronald Bell, Janine L. Estes, and Faye Ng. TTV’s
September 17, 2013 correspondence reminded you and your clients of the
Individual Defendants’ obligation “not to destroy, conceal or alter any
paper or electronic files, other data generated by and/or stored on your
clients’ computer systems and storage media (e.g. hard disks, floppy
disks, backup tapes) or any other electronic data, such as voicemail.”
We identified the scope as encompassing both the personal and
professional or business capacity of your clients and involving data
“generated or created on or after July 15, 2010.” See Attached Letters
to Ms. Benitez and Messrs. Lamken and Shur.
As the D.C. District Court has found, “[a] party has a duty ‘to
preserve potentially relevant evidence . . . “once [that party]
anticipates litigation.”’” Zhi Chen v. District of Columbia,
839 F. Supp. 2d 7, 12 (D.D.C. 2011) (internal citations omitted). In
fact, “[t]hat obligation ‘runs first to counsel, who has a duty to
advise his client of the type of information potentially relevant to the
lawsuit and of the necessity of preventing its destruction[,]’” and
“also extends to the managers of a corporate party, who ‘are responsible
for conveying to their employees the requirements for preserving
evidence.’” Id. (internal citations omitted).
By letter dated September 25, 2013, Ms. Benitez acknowledged receipt
of our “litigation hold” letter, and vociferously objected to our having
the temerity to send such a letter, “rejecting” our characterization of
documents to be preserved. Indeed, Ms. Benitez, you indicated that you
took great offense at having been put on notice to preserve and maintain
documents related to the issues of this litigation. You further advised
however, that you would continue to advise “your clients as appropriate
and, as always, will abide by my legal and ethical obligations.”
Attached Response of Ms. Benitez.
The public reports released late on Friday, June 13, 2014 stated that
the IRS now claims to have “lost” the emails of defendant Lois Lerner.
These reports are particularly astonishing in light of your
representations, Ms. Benitez, that [you] would “advise your clients, as
appropriate, and [would] abide by your legal and ethical obligations.”
The “lost” emails, from press reports, appear to cover a time period
from January 2009 to April 2011. See Press Release, Committee on Ways
and Means, IRS Claims to Have Lost Over 2 Years of Lerner Emails (June
13, 2014), available at
http://waysandmeans.house.gov/news/documentsingle.aspx?DocumentID=384506.
We are deeply troubled by this news and are concerned about the
spoliation of information and documents pertaining to this case and the
apparent failure on your part to (a) protect and preserve all
potentially relevant information and (b) to advise us of such failure
and spoliation when you first learned of it. We are even more concerned
after receiving your assurances that you would “abide by your legal and
ethical obligations.”
Accordingly, we hereby request that you advise us of the following:
1. What steps did each of you, as counsel for the Defendants, each of
them, take to ensure that any and all documents as described in the
litigation hold letter and as required by federal law were, in fact,
preserved?
2. When did you learn that the destruction, loss or spoliation of emails of Defendant Lois Lerner had occurred?
3. What steps have you, each of you, taken to restore Ms. Lerner’s “lost” emails?
4. Were the “lost” emails from Ms. Lerner’s computer at the IRS or her home computer?
5. Are there documents or records, as described in the Litigation
Hold letter or the subpoenas issued to the IRS from any of the
Committees, belonging to other defendants that have been “lost”?
We are most disturbed to learn this information from media reports
and, in particular, after being chastised by Ms. Benitez regarding the
fact that she “will abide by her legal and ethical obligations.” To Ms.
Benitez in particular, were you aware of and/or did you participate in,
authorize or otherwise sanction the destruction or “loss” of the Lois
Lerner emails?
In addition to seeking responses to the questions in this letter, we
also seek your consent to immediately allow a computer forensics expert
selected by TTV to examine the computer(s) that is or are purportedly
the source of Ms. Lerner’s “lost” emails, including cloning the hard
drives, and to attempt to restore what was supposedly “lost,” and to
seek to restore any and all “lost” evidence pertinent to this
litigation.
We also seek access to all computers, both official and personal,
used by any and all of the Defendants from and after July 1, 2010, in
order to ensure preservation of the documents of all Defendants in this
action.
We wish to resolve our concerns amicably but, absent your consent, we
will file such motions as deemed necessary and appropriate asking the
Court to require that you respond to the questions contained in this
letter, and to permit such forensic examination described herein and for
such other relief as may be appropriate for this egregious breach of
legal authority and professional ethics.
Due to the time-sensitive and urgent nature of this request, please respond by noon on Wednesday, June 18, 2014.
Sincerely,
/s/ Cleta Mitchell
Cleta Mitchell
William Davis
Michael Lockerby
Mathew Gutierrez
Foley & Lardner LLP
Kaylan Phillips
Noel Johnson
ActRight Legal Foundation
Counsel for True the Vote
