Scott wrote earlier today about the motion that True the Vote is bringing against the IRS in the federal court in the District of Columbia. The motion asks for expedited discovery with respect to the IRS’s destruction of evidence relevant to True the Vote’s case, an order prohibiting further destruction of evidence, and other relief. I have read True the Vote’s brief in support of its motion. It appears powerful. The brief is posted below; you can read it for yourself.
But first, these observations. Under federal law, a party has a 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.
I guess we may find out soon, as True the Vote’s motion is scheduled to be heard on July 11. Here is True the Vote’s brief in support of its motion:
06-30-2014 Motion and Memorandum of Law in Support of Motion for Preliminary Injunction
What we see here is the combination of arrogance and incompetence that typifies liberalism.
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