Houston

A federal judge in the Southern District of Texas has hit the City of Houston with discovery sanctions in a lawsuit accusing it of failure to provide timely probable cause hearings for warrantless arrestees.

U.S. District Judge Kenneth Hoyt found that the city intentionally destroyed evidence and made deliberate mischaracterizations to the court. He ruled that the putative class, consisting of thousands of individuals formerly detained in the city jail, is now entitled to an adverse inference at trial.

Hoyt ruled that the city, in Hernandez v. City of Houston, maintained an unconstitutional policy for the entirety of the two-year class period. And Houston’s key policymakers were aware of that policy, but acted with deliberate indifference to the unconstitutional harm that resulted, the judge found.

Although no class has been certified, lawyers for the class see the ruling as a major advance.

According to Amanda Elbogen, part of a team from Kirkland & Ellis that represents the class, the decision effectively limits the remainder of the case to the question of damages.

Hoyt said an adverse inference finding is appropriate under Compaq Comput. Corp. v. Ergonome Inc., a 2004 case from the U.S. Court of Appeals for the Fifth Circuit, which held that such a sanction cures a discovery violation without inflicting additional costs on the parties.

Hoyt said Houston intentionally destroyed evidence by erasing hard drives from computers used by three records custodians, even though the city knew the drives contained evidence that was material to the litigation, and that spoliation was an affront to discovery rules and court orders.

The city made multiple misrepresentations to the court about its discovery process, according to Hoyt. Among them were its claim that it needed to review 2.6 million documents in response to the plaintiffs’ discovery requests. That claim was contradicted by an affidavit showing that far fewer documents—78,702—were retrieved in a search based on court-ordered terms, the judge said. The city also falsely represented to the court that it instituted a litigation hold after the suit was filed, he said.

The suit seeks compensatory damages on behalf of a class: those arrested without a warrant and detained by the city without a judicial determination of probable cause within 48 hours. The proposed class period is from two years before the filing of the complaint, in December 2016, up until the date of an order granting class certification.

Besides Elbogen, Kirkland’s team on the case includes Christine Payne, from Chicago, focusing on e-discovery, as well as Anna Rotman and Patrick King in the Houston office, and Alex Zuckerman in New York.

The firm partnered with Charlie Gerstein at Civil Rights Corps in Washington.