By Natalie Posgate
(Sept. 1) – A federal judge Thursday slapped major sanctions on the City of Houston for violating discovery rules and destroying evidence in a class action lawsuit alleging the city violated thousands of Houstonians’ rights by unlawfully detaining them without a warrant past the constitutionally allowable 48-hour window.
U.S. District Judge Kenneth M. Hoyt ruled that Houston officials’ efforts to hide the truth from the court was so extensive and deliberate that he would automatically presume the allegations of civil rights violations are true and that the city’s liability is no longer in question.
The ruling is a huge win for thousands of former Houston jail inmates involved in the class action and the group of Kirkland & Ellis lawyers who represent the plaintiffs pro bono.
In 2016, Kirkland filed a proposed class action lawsuit on behalf of Houston resident Juan Hernandez and Baytown resident James Dossett claiming that the city of Houston illegally detained the two men and thousands of others like them in violation of their federal constitutional rights. The lawsuit seeks monetary damages.
In a biting 13-page decision issued Thursday, Judge Hoyt ruled that city officials intentionally violated his previous order to produce relevant information about evidence in the case to the plaintiffs.
“The city’s actions as found, hereforeto, were intentional or the result of deliberate indifference,” Judge Hoyt wrote. The city knew well that the evidence existed, that it was material to this litigation and that the spoliation was an affront to discovery rules and the court’s order. The affirmative acts that caused the spoliation found has not been credibly explained.”
The reasonable remedy for the city’s improper actions, Judge Hoyt said, is for him to legally adopt the plaintiffs’ position in the case, including:
- That Houston had a policy of not releasing warrantless arrestees who had not received neutral determinations of probable cause;
- That the city’s key policymakers were aware of this protocol; and
- That city policymakers “acted with deliberate indifference to the unconstitutional policy and the constitutional violations that resulted.
“This type of remedy cures the violation without inflicting additional costs on the parties, and for that reason, the court determines, in its discretion that entering an adverse inference finding is appropriate,” Judge Hoyt wrote.
Alan Bernstein, as spokesman for the Houston Mayor’s Office, told The Texas Lawbook in an email Monday that “the city is examining the legal remedies available to challenge this order.”
Senior Assistant City Attorney Jennifer Callan is representing the City of Houston in the litigation.
Christine Payne, a partner in Kirkland’s Chicago office, said Judge Hoyt’s ruling is significant because the city’s liability is likely no longer in question.
“At trial, the question isn’t really whether the city is liable, it really comes down to the question of how much money will they need to be paying plaintiffs to remedy the situation,” Payne said.
Leading the case with Payne is Los Angeles associate Amanda Elbogen, who brought the case to the firm.
The Kirkland pro bono team also included Houston partners Anna Rotman and Patrick King and New York associate Alex Zuckerman.
Washington organization Civil Rights Corps originally took the case and brought Kirkland on board as a partner because the nonprofit’s founder, Charles Gerstein, went to college with Elbogen at Yale.
“This case is really about the city’s callous indifference to citizens’ constitutional rights,” Elbogen said. “First, there’s the city’s failure to follow proper, lawful procedures when individuals are arrested. Then, there’s the city’s failure to meet its obligations to the plaintiffs in the course of the litigation by abusing the discovery process.”
Judge Hoyt, in his ruling, takes the effort to break down each instance the city represented one thing to the court but the truth later came out.
For example, during an April 3 hearing, the city argued the search terms the court ordered the city to use to produce relevant documents were burdensome because they rendered “2.6 million documents” to meet the plaintiffs’ requests that “would take 17,000 hours to review,” the ruling says.
However, an affidavit by Joe Martinez, a systems support analyst at the city’s legal department, contradicted this. His affidavit stated the search terms retrieved only 78,702 documents.
“The city has failed to explain which search terms elicited 2.6 million documents,” Judge Hoyt wrote.”
The order also pointed out that the city admitted it had wiped the hard drives of several city employees listed as witnesses in the discovery order, including former police chief Charles McLelland and former acting police chief Martha Montalvo.
“Those hard drives contained ESI (electronically stored information) that should have been preserved by the city as soon as it anticipated litigation, and definitely after the instant lawsuit was filed,” Judge Hoyt wrote.
Payne, who specializes in eDiscovery and litigation strategy, said the order is notable because it sends an important message to lawyers and their clients: “If you don’t follow the rules, you will get hammered.
“This is one of the most thoughtful and rigorous discovery opinions I’ve ever seen because the judge was willing to roll up his sleeves and kind of get down into the mud of discovery, which is unappetizing for lots of judges,” she said. “But it is what we absolutely need.
“I think we’re going to start seeing more rulings like this one where judges make it clear that they have high expectations for parties to understand their discovery obligations and honor them.”
Payne added that the approach to discovery in litigation has evolved over the last 10 years since rules for electronic discovery formed.
“I think what sophisticated parties and lawyers see now is that eDiscovery strategy needs to be developed from the very beginning and needs to be married to the trial strategy,” she said. “For parties not willing to put in thoughtful effort at the beginning, they’re going to struggle, and it’s going to result in consequences.”