The City of Atlanta and its police department should be sanctioned for ignoring court-imposed deadlines, destroying evidence, failing to maintain evidence and delaying discovery in the ongoing federal lawsuit over the Eagle raid, according to attorneys who filed the original lawsuit.
The charges are detailed in a 55-page motion filed Oct. 6 by Daniel Grossman (top photo), Beth Littrell and Gerald Weber, three of the attorneys suing the city and the Atlanta Police Department on behalf of bar patrons and employees detained in the controversial raid in September 2009.
The lawsuit, filed in November (bottom photo), alleges that the raid violated state and federal law by detaining and searching patrons and employees, arresting eight employees, and searching the bar without a warrant or probable cause. The suit names 35 people, from officers involved in the raid to former police Chief Richard Pennington.
The motion asks U.S. District Court Judge Timothy Batten to order defendants in the case to comply with discovery, pay for the forensic examination of electronically stored information, create a search facility for electronically stored information, provide their online user ids and passwords and consent to internet providers to release online content, and award attorneys’ fees and costs incurred by the city’s “continued and repeated failure to comply with discovery.”
The motion also asks that Batten, who has already ordered the city to comply with discovery twice before, to find the city in contempt for its “gravity of disobedience” and impose punitive sanctions.
“Throughout this litigation the Defendants and their counsel have acted as if the rules, the law, and even the orders of this Court simply do not apply to them,” the motion states.
“They have responded late to most discovery requests; failed to respond at all to others; failed to follow the Court’s “Instructions to Parties and Counsel;” failed to use good faith in making or certifying their discovery responses; failed to preserve, search for, or produce responsive items as required by law; failed to obey clear and unambiguous orders of this Court; and rather than produce evidence pursuant to this Court’s Order, they destroyed it,” the motion continues.
The motion cites several specific instances:
• The deletion of mobile phone data by individual Defendants after the Court ordered them to produce their phones;
• The overwriting of back-up tapes by the City of Atlanta after the Court ordered the City to produce them;
• The failure to implement an effective litigation hold, and the consequent failure to preserve evidence;
• The pervasive failure to search for responsive items;
• The failure to produce responsive items and to supplement discovery as ordered by the Court, including the failure to serve any response at all Plaintiffs’ Second Request for Production to the individual defendants;
• The failure to comply with specific instructions issued by the Court.
The motion came after two conference calls in late August to address the ongoing concerns with the city’s failure to meet court-imposed deadlines in the discovery process. During an Aug. 27 call, Batten even criticized city attorneys for their response to discovery requests from Grossman and other attorneys.
“I must say that based on what I’ve read, the Court finds that the defendants have been woefully deficient in their responses to the plaintiffs’ discovery requests,” Batten says, according to a transcript of the conference call with the judge and attorneys on both sides of the lawsuit.
The motion also alleges that in three site visits to Atlanta police headquarters that Grossman discovered “thousands of pages” of documents that the city had withheld. The city also failed to produce the cell phones of officers in the case and photos of officers who took part in the raid.
A forensics expert hired by Grossman and the other attorneys who filed the suit showed that in a sample group of six officers involved in the raid – including Sgt. John Brock and lead investigator Bennie Bridges, the two key witnesses in the city’s failed criminal prosecution of the eight people arrested in the raid – that they deleted text messages from their cell phones after Batten ordered them to produce the phones for inspection.
“Some of the missing messages specifically concern the Raid, and some were even sent during the Raid itself,” according to the court filing. “The reports indicate that mobile phone photographs are missing as well, including photographs taken during the period of the Raid.”
The motion also includes transcripts of some messages exchanged between officers before and after the raid.
Edwards to Jacques: 11/09/09 02:53:20 (GMT) It’s just now getting busy
Edwards to Jacques: 11/09/09 02:53:33 (GMT) The actions just begining (sic)
Edwards to Jacques: 11/09/09 02:53:59 (GMT) Our Sgt is wanting to make as many cases as possable (sic)
Jacques to Edwards: 11/09/09 02:54:30 (GMT) What the eta
Edwards to Jacques: 11/09/09 02:59:08 (GMT) Don’t know….. Soon
Also, on Sept. 15 – four days after the raid – the motion shows that some officers were warning one another about making anti-gay comments. Several Eagle employees and patrons alleged that officers made anti-gay comments during the raid.
Jacques to Jackson 22:18:33 (GMT): Bro no more fuckin gay jokes. For rear for real21 (sic)
The city has not filed its response to the motion nor commented publicly about it in media reports.