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

Legal Issues

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.

Filed Under: evidence, nypd, spoliation