Jackson Leaks

After OPRA requests revealed that Jackson was deleting emails, a number of parties suing Jackson Township have filed for sanctions and an injunction against them for “spoliating evidence” related to litigation. These include Agudath Israel, WR Property and Oros Bais Yaakov.

Legal Definition of spoliation : the destruction, alteration, or mutilation of evidence especially by a party for whom the evidence is damaging.

Jackson has now responded to these allegations, making two arguments about why the judge shouldn’t act on this. Their response in federal court can be read here, as well as Agudath Israel’s reply to their objections here.

(1) The first argument put forth by the township’s attorneys is that the plaintiffs lack “standing” to do this. That is, they say, because the plaintiffs in this case are not the same people who put in these anonymous OPRA requests, they are not able to ask for any relief based on the responses. Instead the actual OPRA requestors should bring their own lawsuit for OPRA violations in state court if they feel what they requested was improperly destroyed.

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It is easy to see why this is a silly argument. Agudath Israel isn’t alleging OPRA violations, but rather violations of federal court rules that require the defendant to preserve evidence. The fact that this was revealed by an OPRA request is not important. Agudath Israel points this out in their reply.

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(2) Jackson’s other argument is more convincing: while emails were in fact deleted, their contents were first preserved in PDF format. Therefore, the evidence was not destroyed, only altered. It’s not clear from their response why this was done though (was it to hide information from OPRA requests?).

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Agudath Israel’s reply however claims that this is still “spoliation” and has still disadvantaged the plaintiff in this case, and thus should be punished.

In particular, the metadata (electronically stored information or “ESI”) associated with the emails is now gone and only the contents preserved. During discovery, this metadata might be used directly by a third-party to review how thoroughly Jackson responded to requests for documents and as evidence itself that reveals connections between the emails. These kinds of reviews are no longer possible now that the original emails are not on Jackson’s servers anymore.

Also, the plaintiffs claim that Jackson has been coy as to what was deleted, what was backed up, how it was backed up, and whether everything relevant was in fact backed up. They want a judge to help investigate these questions.

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Will this be grounds for Jackson to face consequences? State and federal judges will decide soon in separate hearings for each case.

Climbing on board with Oros Bais Yaakov, Agudath Israel has just filed a similar motion in federal court to fine and restrain Jackson Township for deleting emails related to the case. The judge overseeing the case will rule on this motion by May 6th.

Read the full brief below:

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The brief cites similar emails and OPRA requests, including the emails below between Jackson Township clerks talking about destroying records that are clearly related to pending lawsuits:

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As a result of Jackson Township playing games with records, a plaintiff in a current lawsuit against Jackson, Oros Bais Yaakov, has filed for a court order to fine the township for destroying evidence and prevent them from doing so further.

The motion details how the township clerk, after being deposed in the case, denied multiple lawsuit-related OPRA requests while claiming that the records were no longer available. For example:

On March 24, 2019, [requestor] sent another OPRA request to the Township requesting “all emails between Mike Reina and Helene Schlegel in Oct 2014 with regard to the Oros Bais Yaakov lawsuit or complaint.”

On March 25, 2019, the Township advised [requestor] that the “records requested have been destroyed under general correspondence as per approval from the NJDARM.” The response referenced the “Authorization from Records Disposal approved on 3/6/19.”

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The Township Clerk, Janice Kisty, has already been deposed in this matter and is thus fully familiar with the ongoing lawsuit. It was Ms. Kisty who approved the request to destroy the correspondence.

Also included are examples of the clerks discussing the destruction of records:

In what appears to be a continuing course of deliberate action to destroy records, Ms. Kisty also emailed Township employee, Danielle Sinowitz, “Reminder that 2014 and maybe 2015 is destroyed…” with respect to an OPRA request seeking Eruv
information.

Oros notes too that public OPRA responses turned up emails they had never seen, while these emails should have been returned during discovery already.

NJ Court Rules consider hiding, altering or getting rid of evidence during legal proceedings a “failure to make discovery”. The attorneys for Oros ask for a court order to stop this behavior and penalize the township, by:

(a) Enjoining Defendants from continuing to knowingly and willfully destroy documents relevant to this lawsuit during its pendency;

(b) Imposing a monetary sanction against Defendants for its intentional violative actions of destroying documents relevant to this lawsuit during its pendency; and

(c) Imposing an adverse inference Sanction against Defendants for its intentional violative actions of destroying documents relevant to this lawsuit during its pendency;

Jackson has yet to respond to these allegations in court.

Related documents:

• Motion to enjoin defendants and for sanctions – legal brief
• Motion to enjoin defendants and for sanctions – proposed order

Update: Agudath Israel Files For Sanctions

Jackson Township clerks have been replying to OPRA requests saying they can not be filled because the relevant records have been destroyed.

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Fortunately, it seems that these records have been magically recovered. When pressed on why records related to litigation were being destroyed, the clerks office responded that they are suddenly no longer so destroyed anymore.

Maybe a team was formed to hand-reassemble the shredded documents? Maybe their reincarnated form is somehow harder to search, possibly because the strips of paper that they have taped together are fragile?

Or maybe their lawyers just told them that actually destroying things was a bad idea.

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Which begs the question: was this all a ruse to hide information from the public? Has Jackson made more work for themselves while still being legally required to deliver documents?

And what will happen if the DOJ and AG serve the township with more subpoenas? In fact, has the township already violated the order from the DOJ, requiring that “electronic files not be altered or destroyed”?

Update: Sanctions against Jackson

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A reader sent us the following: an OPRA request for one month’s worth of emails between former Jackson Township Business Administrator Helene Schlegel and Mayor Mike Reina, related to a pending zoning lawsuit against Jackson Township. A simple request, right?

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Unfortunately for this requester, these records have left the building. The emails from 2014 were deleted recently pursuant to New Jersey’s Destruction of Public Records Law, which allows government bodies to destroy old records in order to declutter their lives after filing a certificate with the state Division of Record Management.

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While the timing of the township’s sudden need to destroy years of records is odd, given the number of legal battles they have just reignited, there is also something that does not spark joy about Jackson’s record disposal filings with the state.

For one, the emails between the Mayor and Business Manager are categorized as “External Correspondence”, despite being entirely internal to Jackson. This is important because other emails may need to be retained for up to seven years.

Secondly, the certificate requires that clerk to sign off that the records in question are not “involved in litigation”, but the request clearly asks for records on the subject of an ongoing lawsuit. In fact, this case is still in the discovery phase, which was just extended by the judge.

With more legal troubles potentially on the horizon, what is Jackson Township trying to get rid of, and why are they doing it so haphazardly?

Update: Reassembling the Documents