Good Old Boys Are Proud of Destroying Public Records

We’re continuing to delve into possible criminal conduct in Gilbert Public Schools.  We started with what little information has been made public: $2 Million is not available for educating GPS students. We wondered why Jill Humpherys and Lily Tram are keeping the public in the dark and objecting to a police investigation about what happened to a GPS server that housed Electronically Stored Information (ESI) that was part of the public record that the GPS board is charged with preserving. The stars are aligning and the dots are connecting, and it doesn’t bode well for the Good Old Boys of GPS. 

Jill Humpherys came to the March 11, 2014 board meeting armed with ten written questions and she demanded that no one interrupt her until she was finished reading them.  Staci Burk answered each of the questions, but she was interrupted by Jill Humpherys several times. The gist was that $2 Million has been taken out of the GPS budget instead of going to the classroom, where it would have made a significant impact on student learning. The board’s previous attorney expressed concern that ASRRT, The Trust, would not pay if the loss was due to criminal acts. If it wasn’t criminal, the board can collect from ASRRT, The Trust, as on any other insured loss. The letter was written by the board president and legal counsel.

Jill Humpherys claimed that the week before, Lily Tram asked for an executive session to discuss the matter of an internal investigation conducted by a well-qualified former prosecutor. She said Lily Tram had questions about spending so much money on an hourly basis, and that was not fiscally sound. Jill Humpherys said, “This is unfair to some of the individuals involved and the district. Yes, some mistakes were made, action has already been taken, and there is no criminality involved. This letter is superfluous.”

This matter has been before the County Attorney and the FBI, according to discussion on the dais. Apparently, the Gilbert Police Department wants to know why something this serious was addressed by an internal investigation instead of being turned over to the police. Destroying public records is a felony, as we have discussed before. Although Jill Humpherys is now saying, “Mistakes were made,” we have been collecting lots of evidence that destroying public records was intentional and habitual. GOBs didn’t want the public to know what was being done behind closed GPS doors [sorry about the image that evoked…have some brain bleach].

It just happens that we have an email from Gilbert Public Schools that confirms Dave Allison’s emails and Superintendent Cabinet Minutes were destroyed. In addition to being crucial evidence in a pending lawsuit, those records were the subject of a public records request. The date is August 26, 2013. The request asked to review a five bullet point list of records. The last two bullet points were:

— review in electronic format all emails to and from Superintendent Dave Allison from February 1, 2011 through June 30, 2012

review minutes or other notes from the meetings of the Superintendent and his cabinet from July 1, 2009 through June 30, 2013

The public information office responded:

Information for the last two bullet points is not available. Dr. Allison’s email and Cabinet notes no longer exist in either paper or electronic format.

Whoo boy!  We were accustomed to being stonewalled in our requests for public records. We were not accustomed to being told the truth by Gilbert Public Schools. We had been asking for similar records in our federal lawsuit, and we were getting stonewalled there, as well, when we asked to review emails of various GPS officials in native format, meaning electronic copies of electronic documents. First, lawyers who work for ASRRT, The Trust, said that asking for emails was burdensome and harassing. Then it became obvious that the geniuses who wrote this answer did not know what they were talking about, but anyway, it’s all our fault they already destroyed the server accounts:

Objection. This request is unduly burdensome and appears to be submitted for no purpose other than to harass Defendants. Without waiving this objection, Defendants have already produced copies of all e-mails and correspondence that are in their possession. Defendants do not have the ability to retrieve the emails in their “native format” for any Defendant who is not currently employed with the District and going back and retrieving all of the e-mails which have previously been disclosed in their “native format” would cause an undue burden on Defendants without any legitimate purpose.

Plaintiffs have not specifically identified what is meant by “native format.”  To the extent that Plaintiffs mean retrieving the e-mail from the mailbox of the original sender, the District does not have the ability to retrieve emails from the mailboxes of Defendant Nikki Blanchard and Defendant Dave Allison as those mailboxes have been removed from the server and there is no “back-up” for those mailboxes. Additionally, because the District did not have a “back-up” system for e-mails, any e-mails that have been deleted from the mailbox, and not archived onto a local drive, of any individual sender, cannot be retrieved.

If would take District personnel approximately 8-10 hours per defendant to review the specific preferences utilized for the mailbox, search every file located in the current mailboxes and search all archived files to determine whether there are e-mails in “native format” that can be retrieved and actually retrieve those e-mails. If the e-mails were printed and were not maintained within the District mailbox or an archive file, the District would not be able to retrieve the e-mail in its “native format.”

Clear as mud, right? Actually, there’s another ASRRT, The Trust, lawyer who was advising GPS on ESI in the CrossPointe litigation. Good Old Brad Holm teaches at the Sandra Day O’Connor School of Law at ASU. Here’s part of a letter he signed about ESI with other lawyers across the country:

There are quite a few (over a dozen) law schools that offer eDiscovery as a stand-alone course. These courses are as varied in content as their teachers are varied in personalities. None of the eDiscovery courses we are aware of teach only document review. Also, contrary to one of the comments offered in response to your article, eDiscovery is almost always an issue in “bet the company” litigation.

These eDiscovery courses run the gamut in focus, and they cover the substantive legal issues associated with the preservation, collection, search, and production of electronically stored information. Some of the thorniest issues revolve around the duty to preserve information, spoliation sanctions, and when you hit the tipping point where responding to discovery becomes “overly burdensome.” [signatures are here]

Just to show what serious chops Good Old Brad Holms has in ESI-related issues, here’s information about a fancy conference at ASU about ESI:

The Ultimate 30(b)(6) “Free Fight” Challenge Brad Holm, Holm, Wright, Hyde & Hays | Hon. John M. Facciola (Moderator) | Niloy Ray, eDiscovery Counsel, Littler Mendelson P.C. | Tom Morrissey, Sr. Director, IT Legal Operations & eDiscovery, Purdue Pharma LP

Watch two of the country’s top eDiscovery Luchadores face off in this mock 30(b)(6). Learn tips and tricks for prepping, defending, and taking a 30(b)(6) of a corporate representative on issues relating to IT structure, document retention policies, and litigation holds.

Now, does it sound likely that Good Old Brad Holm didn’t know that it was a crime, obstruction of justice and more, when GPS GOBs destroyed a server while litigation was pending? Does it sound likely that GPS was proud of deleting emails and email boxes of named GPS Defendants in another federal lawsuit?

There’s always more with GPS: Defendants admitted destroying employment files that were required to be saved in an EEOC charge and subsequent litigationEEOC warned GPS to retain until the end of litigation all personnel records relevant to an EEOC charge filed in October 2011.  Instead, right smack-dab in the middle of the lawsuit, GPS decided to destroy records that were central to GPS’s defense. [Face palm – GPS destroyed their own defense!]  Here’s what GPS wrote in October 2013:

The Arizona Records Retention laws for the 2010-2011 school year required the District to retain those records for 2 years and 6 months. Position openings for the 2010-2011 school year began in January 2010 and ended in July 2010, consequently Defendants are no longer in possession of any documents that are responsive to this request.

We shall see if the GOBs are still so proud of themselves when the Gilbert Police Department comes calling!

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