Attorney Cleta Mitchell represents Truth The Vote, one of the groups illegally targeted by the IRS. She has filed suit in federal court not only on behalf of the group for the illegal targeting in violation of the law but for serial harassment of True the Vote’s Catherine Engelbrecht by federal law enforcement authorities representing three different federal agencies, which has been documented elsewhere and came up in her testimony to the House Oversight Committee.
The latest on this is that Ms. Mitchell has filed a motion calling for advanced discovery to investigate all those 'lost' e-mails. The rules of discovery, for those of you unfamiliar, require both sides to turn over all evidence and a list of witnesses and experts who may be called to opposing counsel prior to trial. Contrary to the world of movies and TV, there are no surprise last minute witnesses or evidence allowed in order to make time for that final love scene or commercial break.
In this particular instance, the federal lawyers are arrogantly denying that until the judge rules on the motions the government has to dismiss the case, any documents and emails in the possession of the defendants don't even constitute evidence.Of course, this also gives them more time to search and destroy anything they want.
So Ms. Mitchell cleverly responded with this motion, asking the judge in the case to order the defendants and their lawyers to disclose under oath exactly what they've have done to preserve evidence in the case or to recover any “lost” e-mails and document. She's also asking the court to allow her and a forensic team access to a number of computers and files so that they can conduct their own examinations and investigation, and asked for a court order specifically prohibiting further destruction of evidence. She argues that without that, evidence will continue to be 'lost' or destroyed.
The judge apparently took her motion seriously, a good sign, because a hearing on it is going to be held July 11, next week.
Powerline, who have been on top of this story from day one has another interesting observation that could come in to play. As John Hinderaker writes, federal law mandates that there is is a legal duty to preserve data that may be relevant to any actual or likely lawsuit:
This duty arises from the party’s own knowledge; it is not necessary for a court to tell it not to destroy information, or for an adverse party to make such a request. The fundamental, shocking fact that is emphasized in True the Vote’s brief is this: at the time of Lois Lerner’s hard drive crash in June 2011, the IRS was already under a legal duty to take steps to ensure that information was not lost, and had been under such a duty for nearly a year, at a minimum. I am speaking here only of the normal requirements that are imposed on any party to a lawsuit, or potential lawsuit. Federal law probably imposes a higher duty on federal agencies, but that is a subject for another day.
True the Vote’s brief points out that the first lawsuit alleging discriminatory targeting of conservative groups was filed by a pro-Israel group called Z Street, Inc., on August 25, 2010. On that date, at the very latest, the IRS had a legal duty to take measures to ensure that no emails, correspondence, memoranda, notes, or other evidence of any sort that could be relevant to the case was lost or destroyed. (Congressional investigations, or other information known to the IRS, may have triggered the duty at an earlier date.) Lois Lerner’s communications would have been at the very top of the list of materials that the IRS had a legal duty to go out of its way to preserve.
But, according to IRS representatives who have testified before Congressional committees, the IRS ignored the law. Instead of making sure that relevant information was preserved, the IRS blithely continued erasing back-up email tapes every 90 days. Further, the IRS continued its policy of assigning each employee a ridiculously small space on an email server, and then authorizing employees (like Lois Lerner) to delete at will to keep space open. And, finally, when Lerner’s hard drive crashed ten months after the Z Street case was commenced, the IRS made no effort to preserve it, but rather, by its own account, recycled the hard drive in a business-as-usual manner.
Any private company that conducted itself in this way would be crucified. It happens from time to time, but rather rarely nowadays, as the duty to preserve evidence is well known in the business world. The IRS’s account of its own behavior is, frankly, shocking. I can hardly imagine what a federal judge would do to a party that took no steps to preserve documents, erased backup tapes, allowed employees to delete relevant emails and memos, and “recycled” the crashed hard drive of its principal witness, all while the lawsuit was pending.
What this means is that even if the 'lost' e-mails can't be found (and I find that hard to believe, given how difficult it is to totally destroy digital data) the IRS defendants can be prosecuted for willful negligence and possibly obstruction of justice if intent can be proven. These are felony busts.
And that in itself may loosen a few tongues.
Stay tuned....
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