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