Government’s Selective Preservation of Text Messages Leads to Sanctions
United States v. Vaughn, No. 14-23 (JLL), 2015 WL 6948577 (D.N.J. Nov. 10, 2015).
The government’s lax approach to a police officer’s text messages and phones, despite taking great care to preserve and collect the defendants’ text messages, led the court to conclude that the government should be prevented from using any text messages in its case-in-chief and that it might deserve an adverse inference at trial.
In this case stemming from the alleged sales of illegal drugs, the state police and FBI used a confidential informant to buy drugs from the defendants, including pro se defendant Vaughn. The police, especially Lieutenant Gregory Demeter, and the FBI communicated with the informant and among themselves using text messages. During discovery, Vaughn learned that Demeter used four phones to communicate with the informant over a three-year period. One was lost then suddenly found before a hearing in the case. Another experienced a data loss during a data transition between phones. A third phone was forgotten about and only identified after a phone carrier produced additional records to Vaughn. A fourth phone was intact but contained messages dated after February 2015.
Vaughn filed a motion seeking the dismissal of the government’s indictment because it intentionally failed to preserve text messages relating to its investigation of the defendants and misrepresented its efforts to preserve evidence, violating his due process rights; alternatively, he asked for an adverse inference.
The government conceded that it had an obligation to preserve the texts and admitted not preserving “a limited . . . number” of messages; however, it claimed the destruction was due to simple negligence. The government acknowledged the only remaining issue was the proper remedy for the spoliation and suggested prohibiting the use of messages between law enforcement, the police, the FBI, and the informant; however, it argued that it should be permitted to use messages between the co-conspirators and between Vaughn and the informant.
The court found dismissal was too harsh a sanction but found stronger sanctions were necessary than those the government recommended for five reasons. First, Demeter knew that FBI policy required law enforcement to preserve all text messages with informants, and he knowingly deleted or negligently permitted text messages to be automatically deleted. Demeter’s self-serving claim that the lost texts lacked evidentiary value was not credible. Second, the court found implausible the government’s attempts to minimize Demeter’s role in the investigation, his handling of the informant, and the volume of his communications with the informant. Third, there were too many inconsistencies for it to be a case of “simple misunderstanding or inadvertent error.” The court observed, “There has been no hearing or letter in the past nine months were there has not been some change in statements previously made, some new surprise, or some undisclosed or misstated fact, right up to and including the identification of yet another phone (whose whereabouts are unknown) in the midst of the evidentiary hearings.” Fourth, the government failed to take “all necessary and appropriate efforts to preserve text messages in this matter.” Fifth, the government selectively preserved texts depending on the source of those messages: it copied messages from the informant’s phone between the informant and Vaughn but no other messages relating to the investigation.
Therefore, the court precluded the government from using any text messages in its case-in-chief, which would provide an adequate remedy to Vaughn as well as incentivize the government “to exercise appropriate diligence in the future both in complying with preservation policies and in making representations to this Court and following its orders.” It reserved the decision whether to impose an adverse inference until trial.
Before choosing a remedy, the court observed that the government must “‘seek all exculpatory and impeachment information from all the members of the prosecution team.’” Accordingly, “federal prosecutors do not discharge their duty simply by hoping prosecution team members understand their duties, preserve the required information, and then self-identify discoverable items.”
An imbalanced approach to discovery clearly indicates that something is amiss. The government’s diligence in preserving only certain messages raised questions as to why it deleted other messages. Moreover, delegating the decision of which messages to preserve to custodians allowed an inference that any preservation was self-serving. Organizations must take a more even-handed, objective approach to preservation to avoid this perception.