Legal Issues

by Tim Cushing


Filed Under:
evidence, nypd, spoliation



Federal Judge Finds NYPD Engaged In Evidence Spoliation By Destroying Documents Related To Summons Quota Lawsuit

from the NYPD-shreds-accountability-so-often-it-needs-its-own-industrial-truck dept

Just recently, we discussed the revelation that former Police Commissioner Ray Kelly's emails were deleted right as he was exiting office -- despite being ordered by a federal court to preserve all communications relevant to a summons quota lawsuit.

The city claimed it was a clerical error, but the plaintiffs pointed out that, despite the retention order being issued in 2010, the city had yet to produce a single email from Kelly's account in response to its discovery requests.

The long-running case is still very slowly moving forward, greatly hampered by the NYPD's refusal to cooperate with requests for documents relevant to the disputed quotas. Federal judge Robert Sweet is handling the case, and it appears that he's just as frustrated, exhausted and irritated as the plaintiffs. In an order granting the plaintiffs' motion for adverse inference (in part) related to "spoliation of evidence," Sweet takes several shots at the NYPD's document-handling skills.

First off, Sweet notes the city did not even issue an order on litigation retention until more than three years after the lawsuit was filed.

The City did not issue any litigation hold until August 8, 2013, more than three years after the filing of the Complaint in this case. A preservation notice to NYPD members of service was distributed via a FINEST message on August 20, 2013, which was to be read to all commands. The evidence indicates that the litigation hold was not effectively communicated, and none of the officers who were named in the City's initial disclosures acknowledged receiving it.
The opinion also points out that the NYPD's policy of document retention tends to encourage periodic mass destruction of official records. Email is the hardest hit, with officers and officials having "hard size limits" on mailboxes, with the only way out from under the cap is the deletion of communications -- communications that would otherwise be preserved under other NYPD policies for 3-4 years.

From what Judge Sweet has observed, the NYPD's favorite piece of office equipment is its shredder truck.
Certain hard-copy materials relating to CompStat meetings gatherings of senior police personnel at which crime and performance-related data is analyzed and major policy priorities are set have been shredded, a fact acknowledged by Lieutenant Scott at his deposition. These packets contained data on enforcement activity. Lieutenant Scott also destroyed his own handwritten notes from the meetings.

[...]

Similarly, testimony by several officers indicates that there is a general practice of regularly destroying individual officers' activity reports. The Plaintiffs argue that these reports are relevant to their case because each officer's supervisor is required to provide written comments about his or her performance; if there is an unofficial summons quota policy within the NYPD, it might be reflected in those comments.
In addition, the NYPD has no policy regarding the preservation/destruction of text messages sent and received from department-issued smartphones. This has obviously led to a dearth of messages ever finding their way into court.

The evidence suggests the NYPD deletes email messages en masse and with alacrity. Common terms like "activity," "performance," and "record" were used to search for emails possibly relevant to the lawsuit. Despite the broad search terms, the city has turned over next to nothing in the way of these communications.
Defendants produced few or no documents from the accounts of several key custodians, which the Plaintiffs argue is indicative of spoliation. For example, no emails were produced from the files of former Commissioner Raymond Kelly, former Chief of Department Joseph Esposito, former Chief of Patrol Robert Gianelli, and former Chiefs of Transit James Tuller and Raymond Diaz. Fewer than five emails were produced from the files of former Manhattan Borough Commander Thomas Purtell and former First Deputy Commissioners George Grasso and Rafael Pineiro. Fewer than 20 emails were produced from the files of William Morris, former Commander of the Criminal Justice Bureau.
The city claims -- through sworn affidavits -- that these officials and the upper levels of the NYPD hierarchy just don't use email to discuss policies or officer performance. This is likely true. There's an obvious reason why email use is unofficially discouraged and it's being played out in a lawsuit that is now in its sixth year. If you don't use email for any sort of official business, you'll never have to turn over a possibly incriminating/embarrassing document.

But despite its best obfuscatory efforts, it has proven impossible to keep officials from discussing pertinent official business using city email accounts.
[T]hese assertions are contradicted by emails that the Plaintiffs have obtained through other means. For instance, the Plaintiffs attached a copy of a September 27, 2010 email from Commissioner Kelly's BlackBerry in which he approves the transfer of a police officer from a precinct in Queens to one in the Bronx, based in part on her having told two officers to stop writing summonses.

Similarly, the Plaintiffs point to three emails sent to Chief Esposito regarding CompStat meetings which, although not as directly relevant as the email from Commissioner Kelly, do touch on summons and performance issues and contain requested search terms.
The unofficial "don't use email" policy -- along with the hard cap on storage -- ensures higher-ranking city officials will either avoid discussing sensitive issues in communications subject to public records requests or will constantly need to delete emails to stay under the inbox limit -- with potentially-sensitive communications being excised first.

The emails discovered here did not come from searches of these subjects' emails. Instead, they were obtained from hard copy files maintained by other agencies or lower-level NYPD officials. As Judge Sweet points out, this indicates Commissioner Kelly and Chief Esposito deliberately deleted emails that should have been retained.

Judge Sweet says it's inexcusable that the city failed to issue a preservation order until three years after the court ordered it to retain relevant documents. Furthermore, Sweet points out that the city should have been retaining these documents since 2008, when a similar lawsuit was filed over the NYPD's alleged summons quota.

The city argued that -- due to the number of lawsuits it faces on an ongoing basis -- it would be impossible to retain everything sought. While Sweet agrees that the city's retention obligations are indeed immense, that does not excuse its failure to issue a retention order for three years, much less suspend policies that would result in the destruction of relevant documents.

Sweet also points out that the city likes to dance around the central issues rather than admit it does everything it can to eliminate paper/digital trails.
In its briefing, the City argues that it was under no obligation to preserve messages kept on officers' personal electronic devices, without discussing any preservation obligation regarding texts sent on Department-issued devices.
Furthermore, the city's policies on data retention -- especially the NYPD's -- are slanted towards destruction rather than preservation.
The Defendants point out that Operations Order 44, which provides for the destruction of hard-copy documents, is permissive and not mandatory. However, the fact that Order 44 was on the books made document destruction foreseeable. The NYPD cannot credibly argue that, despite setting guidelines for document destruction and providing an industrial shredding truck for that purpose, it did not know or intend that documents would be destroyed.

Similarly, Lieutenant Scott's testimony amounts to an admission that the Department knew that officers' email inboxes would hit their space limits and that those officers would delete potentially relevant ESI when they did. Although the paucity of relevant emails produced from the inboxes of key decisionmakers does not establish that ESI was deleted, it is consistent with such spoliation and with Lieutenant Scott's acknowledgement that deletion of emails was a foreseeable consequence of the storage policy.
Combined with the city's failure to issue a preservation order until three years of litigation had elapsed, the court finds in favor of the plaintiffs on most of the allegations and orders the city to produce a schedule for completing the outstanding discovery requests. If the city can't comply because it has allowed destruction of relevant documents to continue during the three-year gap, sanctions are likely. But for the city, these sanctions will likely be far more affordable than a finding that the NYPD engaged in an illegal quota system for several years.


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  • identicon
    DigDug, 8 Jan 2016 @ 4:24pm

    Contempt of Court - Bailif - take them into custody!!

    Seems like the right thing to do to them that are supposed to uphold the law that decide to flout it.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 8 Jan 2016 @ 5:14pm

      Re: Contempt of Court - Bailif - take them into custody!!

      All of them, the entire police force.

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 8 Jan 2016 @ 5:26pm

        Re: Re: Contempt of Court - Bailif - take them into custody!!

        Start over from scratch. A force that violates the law when convenient for them cannot be trusted with enforcing the law on others.

        reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 8 Jan 2016 @ 6:07pm

    The city argued that -- due to the number of lawsuits it faces on an ongoing basis -- it would be impossible to retain everything sought.
    Call me crazy, but I think that this particular argument might just be more than a little funny.

    reply to this | link to this | view in chronology ]

    • icon
      Ninja (profile), 11 Jan 2016 @ 5:51am

      Re:

      I do believe they may be incompetent enough to retain copies of the same thing multiple times if they appear in multiple processes. Still, there's a huge possibility that this is incompetence is not... accidental.

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 8 Jan 2016 @ 6:51pm

    > The city argued that -- due to the number of lawsuits it faces on an ongoing basis -- it would be impossible to retain everything sought.


    Kind of funny how companies like Google figured out how to save their customers email with caps large enough that it is essentially unlimited... especially because they probably save more emails accumulated in a few hours than the NYPD has seen cross their servers... ever.

    reply to this | link to this | view in chronology ]

  • icon
    tqk (profile), 8 Jan 2016 @ 7:25pm

    Yoohoo, NSA?

    Too bad the judge can't just subpoena the NSA. That haystack in Utah ought to clear this problem up in no time. Just redefine the NYPD as a rogue gov't and deliver what they sadly ("Boohoo, sorry!") failed to retain.

    Wouldn't it be lovely (for everyone) if all these monsters could be convinced to squeal on each other? Eventually, we might even get back to that "of the people, by the people, for the people" ideal we once treasured, and they could all go back to doing the jobs we want them to do instead of silly turf wars like this.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 8 Jan 2016 @ 8:03pm

    They need to get a backbone and call a duck a duck. They are in contempt of court, hand out jail sentences and they'll learn mighty fast to smarten up.

    reply to this | link to this | view in chronology ]

  • icon
    That Anonymous Coward (profile), 8 Jan 2016 @ 8:12pm

    It is almost like those who enforce the law seem to think they are above having to follow it. Perhaps this might lead to the public not having much faith in the system that rarely punishes those who violate the law they swore to uphold when its not convenient for them to.

    reply to this | link to this | view in chronology ]

  • icon
    That One Guy (profile), 8 Jan 2016 @ 10:12pm

    Well there's your problem...

    If the city can't comply because it has allowed destruction of relevant documents to continue during the three-year gap, sanctions are likely. But for the city, these sanctions will likely be far more affordable than a finding that the NYPD engaged in an illegal quota system for several years.

    Even if they are caught destroying evidence they are still in a better position than they would have been had that evidence been available for the court to look over.

    With a cost/benefit setup like that of course they're going to have systems in place for regular destruction of digital and physical records, they'd be fools not to.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 8 Jan 2016 @ 10:25pm

    Similarly, testimony by several officers indicates that there is a general practice of regularly destroying individual officers' activity reports. The Plaintiffs argue that these reports are relevant to their case because each officer's supervisor is required to provide written comments about his or her performance


    Imagine if an ordinary citizen willfully destroyed a set of electronic records that the NYPD or state prosecutors requested in a case against that citizen.

    That ordinary citizen would be in jail so fast that they might not even go before a judge.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 8 Jan 2016 @ 10:59pm

    This is going to lead to more people shooting police. Solely because they police are not held accountable to the laws they constantly break, they murder with impunity and are held to investigate themselves for any wrongdoing they are discovered to have done.

    When no one will police the police. The citizenry will start doing it in a very violent manner.

    I suggest we call them blueshirts instead of police these criminals of the NYPD are not worthy of the name police.

    reply to this | link to this | view in chronology ]

  • identicon
    Mark Wing, 9 Jan 2016 @ 3:10am

    "But we get sued by so many people that there aren't enough trucks in the world to hold the bullshit spewing from our department that we're getting sued over" shouldn't be a viable defense of their actions.

    reply to this | link to this | view in chronology ]

  • icon
    Coyne Tibbets (profile), 9 Jan 2016 @ 5:30am

    Equitable solution

    It seems to me an equitable solution is quite simple; no doubt the Judge will adopt it:

    1) Case proceeds on the plaintiff's evidence.
    2) NYPD defense team may not introduce any email or text from the same time period.

    If that results in a cakewalk win for the plaintiffs: well, too bad.

    reply to this | link to this | view in chronology ]

    • icon
      Robert Beckman (profile), 9 Jan 2016 @ 1:29pm

      Re: Equitable solution

      NYPD being unable to introduce defense evidence isn't an equitable solution.

      Accepting the plaintiffs allegation as true and that the NYPD intentionally destroyed evidence of it's truth would be equitable.

      If that results in in the NYPD agreeing that they broke the law: well, too bad.

      This is what an adverse inference is for.

      FIFY :)

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 9 Jan 2016 @ 6:50am

    Call Comey, a group of armed criminals are going dark!
    /s /notreally

    reply to this | link to this | view in chronology ]

  • identicon
    annonymouse, 9 Jan 2016 @ 10:39am

    The idea of treatment as a criminal organization needs one step further - bring it to the federal level and inter them in either Texas or Arizona where there is nothing but love for the Blue Boys and girls front New York

    reply to this | link to this | view in chronology ]

  • icon
    Eldakka (profile), 10 Jan 2016 @ 7:47pm

    Just a general comment on email retention

    I have worked as an email administrator early in my career, looking after first cc:mail then later Lotus Notes for a large organization.

    As email administrators, it was our common refrain to staff that wanted increased mailbox limits that "eMail is not a document storage or management system. It is a document delivery system." The email system is like the mailroom. You don't expect the mail room to have a copy of every piece of mail ever sent through the mail room do you?

    There are products specifically for document management and storage, EDRMS (Electronic Document and Records Management System) which can be, and in my organization were, integrated with the email client. You received and/or sent an email that you thought was business-relevant, you clicked a button (or in some cases just added a specific cc address) and the email was filed into the EDRMS with a unique file reference number. Most EDRMS are analogous to and function as a virtual 'file' in the old meaning of the "file it" term.

    I reiterate with my former email administrators hat on, that email is not a document storage, management or archival system, it is a message delivery system.

    An email administrator is not in a position to determine whether individual emails from 10's of thousands of people who work in disparate fields is business relevant or not. Is that email a private joke between 2 co-workers? Is it an email asking if someone wants to go to lunch? The sender and/or receiver of an email is in the best position to know whether the contents of the email should be 'filed'.

    Enterprise storage, backup and archiving is not cheap, it is as expensive as f***. It is not cost effective to archive any and all emails sent, with most emails sent through a work email account not being relevant to business decisions or processes or functions.

    In my current organization, as it is with selective 'filing' rather than blanket retention of all emails, our EDRMS still grows about 1TB every 2 months (from multiple sources, not just emails). If that was expanded to all emails, we'd be at like 2 or 3 TB/month.

    Now an argument could be made that senior managements emails should all be archived automatically (another bugbear of mine, backup != archive). I'm sure archiving all email of a few score senior management who make the critical business decisions while allowing the 10's of thousands of lower level employees to have to choose to file communications would be perhaps give the best of both worlds.

    reply to this | link to this | view in chronology ]

    • icon
      tqk (profile), 11 Jan 2016 @ 1:21pm

      Re: Just a general comment on email retention

      ... "eMail is not a document storage or management system. It is a document delivery system."

      I get what you're saying, but you should understand that email isn't just files of data. Often it's conversations between two or more people, and a good MUA (*not* Lotus Notes!) can be very helpful in keeping all that mass organized so it's still useful, and not just filling diskspace.

      You should also realize that users come in all sorts of knowledge and competency levels. I've worked with developers who didn't appear to know what a subdirectory was. I've also worked with bosses who were self-taught highschool dropouts who knew more about computing than I did after being in the trenches for decades.

      A good admin, in my opinion, watches (unobtrusively, not nosily) what the users are doing and tries to head off problems and develop simple procedures the users can easily follow. Bad admins pass dictates down from on-high and punish infractions and deviations from established policies.

      I would expect an organization the size of NYPD should easily be able to handle stuff like this without being assholes about it. Instead they, like much of officialdom these days, appear to consider oversight a personal insult and intrusion into their turf.

      I'd lay down the law and give 'em fair warning of what the public (their employer) expects of them, then fire (or maybe even jail) the bums who refuse to line up.

      reply to this | link to this | view in chronology ]

  • icon
    Ninja (profile), 11 Jan 2016 @ 5:52am

    Raise your hands if you think this is just circus show for the masses until people are severely punished for this.

    Ahem.

    reply to this | link to this | view in chronology ]

  • identicon
    David, 11 Jan 2016 @ 10:09am

    Talked to an ex cop once

    And he said that there weren't ticket "quotas", but officers had to have so many 'activities' during a shift. If it's a slow day with few calls, you make it up with issuing tickets as your 'activities'. So there's no direct ticket quota.

    reply to this | link to this | view in chronology ]

    • icon
      tqk (profile), 11 Jan 2016 @ 2:17pm

      Re: Talked to an ex cop once

      If it's a slow day with few calls, you make it up with issuing tickets as your 'activities'. So there's no direct ticket quota.

      Except, they're going to extraordinary lengths to obfuscate (at best). They've got to know that's going to come back and bite them. Why not just cough up (after saving!) their emails which might prove the facts of the situation? Instead, they're showing how insulted they are by others looking into what they're doing and how they do it, others who pay their salaries.

      reply to this | link to this | view in chronology ]


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