ALBANY – Holding that plaintiffs in a voting rights dispute did not satisfy the standard for obtaining spoliation sanctions, a federal judge has held that while Albany County was at least negligent, and possibly even grossly negligent, in destroying documents, there was no showing the documents in question were particularly relevant to the ongoing controversy.
But Northern District Judge Lawrence Kahn (See Profile) said the plaintiffs can renew a request for an adverse-inference instruction if evidence at trial warrants revisiting the issue.
Pope v. County of Albany, 11-cv-00736, is a quirky matter where the plaintiffs say they cannot establish the relevance of destroyed documents for the obvious reason that they were destroyed, and the court found itself restrained from finding spoliation because it doesn’t know what was in records that no longer exist.
The case arose from the redistricting of the 39 county legislative districts consistent with the 2010 census. Several minority groups objected to a plan to create four majority-minority districts—districts in which minority group members constitute a majority—and insisted on a fifth. Similar litigation after the 1990 and 2000 censuses successfully argued that minorities were not adequately represented in the Albany County Legislature.
Records show that various documents relating to the 2010 redistricting were destroyed and numerous other papers were obliterated during a “shredding party” allegedly staged by the staff of outgoing County Executive Michael Breslin as he prepared to leave office at the end of 2011.
Kahn said the county should have, and in fact did, anticipate litigation, given the fact that prior redistricting efforts had resulted in lawsuits, but “made no efforts to preserve relevant documents” until well after it could have reasonably anticipated litigation.
“The County had knowledge that its past redistricting efforts have all led to litigation as well as knowledge that this particular redistricting could also lead to litigation, yet they took no steps to preserve documents relevant to this redistricting until weeks after litigation began,” Kahn wrote. “Even if these documents were not destroyed with gross negligence, their destruction was certainly negligent.”
But Kahn said that to obtain an adverse inference instruction, the plaintiffs would have to establish that the destroyed evidence was relevant to their claims—which they have not done, at least so far—and that the evidence was destroyed with a “culpable state of mind.” Consequently, while critical of the county’s actions, Kahn did not find evidence of the requisite bad faith.
“Plaintiffs simply have not met their burden, however low it is, in regard to those documents because they offer little more than speculation on the documents’ relevance in the face of evidence tending to show that the documents were irrelevant,” Kahn wrote in affirming an order issued last summer by now-retired Magistrate Judge David Homer.
Kahn found nothing to rebut the county’s claim that documents destroyed in the “shredding party” did not involve the redistricting. The county contends that the destroyed documents included copies of resumes, confidential constituent matters, personnel records, litigation files and correspondence.
Similarly, while the county acknowledges that handwritten notes and emails of the secretary of the redistricting commission were destroyed, it claims the substance of those notes was included in the panel’s formal minutes.
The county is represented by the county attorney’s office and Peter Barber of Murphy, Burns, Barber & Murphy in Albany.
Representing the plaintiffs is the Washington, D.C., office of Gibson, Dunn & Crutcher and local counsel Paul DerOhannesian II of Albany.
Albany County Executive Daniel McCoy said in a statement that the spoliation motion is based on “little more than speculation,” adding that “this case has no merit and at the end of the day…our redistricting plan will be affirmed by the courts.”
DerOhannesian said the ruling illustrates “the difficulty of showing relevance when a party destroys the documents, which the court says is either negligence or gross negligence. We are pleased that the court agreed with many of our assertions that there was destruction of documents after their was litigation.”
He added that the plaintiffs are likely to revisit the issue at trial “based on additional information that develops.”
@|John Caher can be contacted at firstname.lastname@example.org.