Washington superlawyer Cleta Mitchell represents True the Vote, one of the groups illegally targeted by the IRS in the scandals that have exposed the agency as a partisan operation. True the Vote’s Catherine Engelbrecht has been harassed by federal law enforcement authorities representing three different federal agencies. They represent the price of politics in the Age of Obama.
Cleta has just served the letter below on the attorneys at the Department of Justice representing the IRS in True the Vote’s pending lawsuit referenced in the subject line below. She has also served the letter on Steptoe & Johnson partner Brigida Benitez. Benitez comes in for special attention in Cleta’s letter; she represents the IRS defendants who are sued in their individual capacity.
Cleta has graciously forwarded a copy of her letter to us. Given the newsworthiness of the subject, we are promptly posting it verbatim without further comment for the moment:
￼￼￼￼RE: TTV v. IRS et al, 1:13-cv-00734 (D.D.C.), Litigation Hold – Preservation of Responsive Evidence
As you know, True the Vote (“TTV”) filed its lawsuit in the above-referenced matter on May 21, 2013. By the time TTV filed its suit, the Internal Revenue Service (“IRS”) and its employees and officials were on notice of the commencement of several congressional investigations. The House Committee on Oversight and Government Reform (“Oversight”), the House Committee on Ways and Means (“Ways and Means”) and the Senate Finance Committee (“Senate Finance”) (collectively, “the Committees”) have each provided notice to the IRS of their ongoing investigations into the IRS, and specifically, Defendant Lois Lerner and her activities related to the issues involved in the TTV litigation for over a year now.
Late Friday, the IRS apparently advised the Ways & Means Committee that the IRS has “lost” Lois Lerner’s hard drive which includes thousands of Defendant Lerner’s e-mail records. However, several statutes and regulations require that the records be accessible by the Committees, and, in turn, must be preserved and made available to TTV in the event of discovery in the pending litigation. Those statutes include the Federal Records Act, Internal Revenue Manual section 18.104.22.168 (which refers to the IRS’s preservation of electronic mail messages), IRS Document 12829 (General Records Schedule 23, Records Common to Most Offices, Item 5 Schedule of Daily Activities), 36 C.F.R. 1230 (reporting accidental destruction,) and 36 CFR 1222.12. Under those records retention regulations, and the Federal Records Act generally, the IRS is required to preserve emails or otherwise contemporaneously transmit records for preservation.
Therefore, the failure for the IRS to preserve and provide these records to the Committees would evidence either violations of numerous records retention statutes and regulations or obstruction of Congress.
Federal courts have held, in the context of trial, that the bad faith destruction of evidence relevant to proof of an issue gives rise to an inference that production of the evidence would have been unfavorable to the party responsible for its destruction. See Aramburu v. The Boeing Co., 112 F.3d 1398, 1407 (10th Cir. 1997). The fact that the IRS is statutorily required to preserve these records yet nevertheless publicly claimed that they have been “lost” appears to evidence bad faith. 18 U.S.C. § 1505 makes it a federal crime to obstruct congressional proceedings and covers obstructive acts made during the course of a congressional investigation, even without official committee sanction. See, e.g., United States v. Mitchell, 877 F.2d 294, 300–01 (4th Cir. 1989); United States v. Tallant, 407 F. Supp. 878, 888 (D.N.D Ga. 1975).
Further, by letters dated September 17, 2013, TTV provided notice to counsel for the individual IRS Defendants in this litigation. The “Individual Defendants” are: Steven Grodnitzky, Lois Lerner, Steven Miller, Holly Paz, Michael Seto, Douglas Shulman, Cindy Thomas, William Wilkins, Susan Maloney, Ronald Bell, Janine L. Estes, and Faye Ng. TTV’s September 17, 2013 correspondence reminded you and your clients of the Individual Defendants’ obligation “not to destroy, conceal or alter any paper or electronic files, other data generated by and/or stored on your clients’ computer systems and storage media (e.g. hard disks, floppy disks, backup tapes) or any other electronic data, such as voicemail.” We identified the scope as encompassing both the personal and professional or business capacity of your clients and involving data “generated or created on or after July 15, 2010.” See Attached Letters to Ms. Benitez and Messrs. Lamken and Shur.
As the D.C. District Court has found, “[a] party has a duty ‘to preserve potentially relevant evidence . . . “once [that party] anticipates litigation.”’” Zhi Chen v. District of Columbia, 839 F. Supp. 2d 7, 12 (D.D.C. 2011) (internal citations omitted). In fact, “[t]hat obligation ‘runs first to counsel, who has a duty to advise his client of the type of information potentially relevant to the lawsuit and of the necessity of preventing its destruction[,]’” and “also extends to the managers of a corporate party, who ‘are responsible for conveying to their employees the requirements for preserving evidence.’” Id. (internal citations omitted).
By letter dated September 25, 2013, Ms. Benitez acknowledged receipt of our “litigation hold” letter, and vociferously objected to our having the temerity to send such a letter, “rejecting” our characterization of documents to be preserved. Indeed, Ms. Benitez, you indicated that you took great offense at having been put on notice to preserve and maintain documents related to the issues of this litigation. You further advised however, that you would continue to advise “your clients as appropriate and, as always, will abide by my legal and ethical obligations.” Attached Response of Ms. Benitez.
The public reports released late on Friday, June 13, 2014 stated that the IRS now claims to have “lost” the emails of defendant Lois Lerner. These reports are particularly astonishing in light of your representations, Ms. Benitez, that [you] would “advise your clients, as appropriate, and [would] abide by your legal and ethical obligations.” The “lost” emails, from press reports, appear to cover a time period from January 2009 to April 2011. See Press Release, Committee on Ways and Means, IRS Claims to Have Lost Over 2 Years of Lerner Emails (June 13, 2014), available at http://waysandmeans.house.gov/news/documentsingle.aspx?DocumentID=384506.
We are deeply troubled by this news and are concerned about the spoliation of information and documents pertaining to this case and the apparent failure on your part to (a) protect and preserve all potentially relevant information and (b) to advise us of such failure and spoliation when you first learned of it. We are even more concerned after receiving your assurances that you would “abide by your legal and ethical obligations.”
Accordingly, we hereby request that you advise us of the following:
1. What steps did each of you, as counsel for the Defendants, each of them, take to ensure that any and all documents as described in the litigation hold letter and as required by federal law were, in fact, preserved?
2. When did you learn that the destruction, loss or spoliation of emails of Defendant Lois Lerner had occurred?
3. What steps have you, each of you, taken to restore Ms. Lerner’s “lost” emails?
4. Were the “lost” emails from Ms. Lerner’s computer at the IRS or her home computer?
5. Are there documents or records, as described in the Litigation Hold letter or the subpoenas issued to the IRS from any of the Committees, belonging to other defendants that have been “lost”?
We are most disturbed to learn this information from media reports and, in particular, after being chastised by Ms. Benitez regarding the fact that she “will abide by her legal and ethical obligations.” To Ms. Benitez in particular, were you aware of and/or did you participate in, authorize or otherwise sanction the destruction or “loss” of the Lois Lerner emails?
In addition to seeking responses to the questions in this letter, we also seek your consent to immediately allow a computer forensics expert selected by TTV to examine the computer(s) that is or are purportedly the source of Ms. Lerner’s “lost” emails, including cloning the hard drives, and to attempt to restore what was supposedly “lost,” and to seek to restore any and all “lost” evidence pertinent to this litigation.
We also seek access to all computers, both official and personal, used by any and all of the Defendants from and after July 1, 2010, in order to ensure preservation of the documents of all Defendants in this action.
We wish to resolve our concerns amicably but, absent your consent, we will file such motions as deemed necessary and appropriate asking the Court to require that you respond to the questions contained in this letter, and to permit such forensic examination described herein and for such other relief as may be appropriate for this egregious breach of legal authority and professional ethics.
Due to the time-sensitive and urgent nature of this request, please respond by noon on Wednesday, June 18, 2014.
/s/ Cleta Mitchell
Foley & Lardner LLP
ActRight Legal Foundation
Counsel for True the Vote