Federal judge sanctions City, CMS over failure to produce documents
City found to have destroyed evidence; CMS found to have withheld student sexual assault reports
CHARLOTTE, N.C. (WBTV) - The City of Charlotte and Charlotte-Mecklenburg Schools have each faced sanctions in federal court in recent months over their failure to produce documents and other evidence in ongoing civil lawsuits.
Sanctions have been handed down in two lawsuits: one filed against the city by a former firefighter and the other filed by a former Myers Park High School student against CMS and the city.
The city was cited as having withheld or, in one instance, destroyed documents and other evidence in three different rulings spanning both cases.
Lawyers who practice primarily in federal court say discovery sanctions are extremely rare, making the fact that two local government agencies have drawn sanctions on three different occasions in less than a year extraordinary.
Attorney Jason Sneed, who practices almost exclusively in federal court, says he’s never seen a case where a judge has had to actually issue sanctions, even if one side of a case has requested them. Normally, he said, the issue is resolved before a judge reaches a ruling.
“I’ve been practicing trademark and copyright litigation for over 20 years and I think I’ve seen sanctions motions on only two or three instances in that time period,” Sneed said.
City sanctioned twice in one case in less than six months
A judge first ruled that the city had withheld records in September 2021 in the case brought by former Charlotte firefighter Will Summers.
“The Court has entered six Orders compelling Defendant to comply with its discovery obligations,” a federal judge ruled. “Defendant has failed to comply fully with the Court’s Orders entered on June 10 and June 17, 2021.”
As a result of that order awarding sanctions, the city was made to pay $5,000 in attorney’s fees reimbursing the plaintiff’s lawyer for time spent compelling the city’s production of certain records.
But even after that first order, court records show, the city continued to withhold evidence.
A second order entered in February 2022 found the city had destroyed records.
The second order details the types of records destroyed by the city, including certain emails, employment applications and notes from city personnel who took part in evaluating candidates for promotion within the fire department.
According to the order, there is no evidence the city took any steps to preserve the evidence--including by distributing a litigation hold to relevant city employees--and waited years to take steps to preserve electronic evidence.
The second order resulted in the city having its motion for summary judgement thrown out and an order that, if the case goes to trial, the jury will receive an instruction specifying the city’s destruction of evidence.
The city was also ordered to pay $20,000 in attorney’s fees. In total, taxpayers are on the hook for $25,000 in attorney’s fees in the Summers case as a result of the city failing to preserve and produce evidence.
Sneed, the lawyer who practices primarily in federal court, said the number of times the city was ordered to produce records without doing so was noteworthy.
“I haven’t seen a case where there are this many motions to compel--and multiple sanctions orders--and, in fact the, plaintiff in this instance won every one of their seven motions to compel and both of their sanctions motions,” he said.
Charlotte-Mecklenburg Schools also sanctioned
In a separate case, brought by a former student at Myers Park High School using the pseudonym Jane Doe, a federal judge ruled both the city and Charlotte-Mecklenburg Schools had withheld evidence in a ruling handed down in late June of this year.
The case challenges the way in which both CMS and Charlotte-Mecklenburg Police handled the former student’s reported rape by a male classmate. WBTV first investigated the case in November 2015.
In the Doe case, a judge found the city delayed producing required records without an explanation as to why it did not do so much earlier.
And CMS was found to have withheld records related to other reports of rape and sexual assault by students.
“Plaintiff credibly asserts that Defendants withheld information about other reports of sexual assaults on students occurring prior to and after the events at issue here,” a judge ruled in November, in a ruling that gave the defendants additional time to produce those records.
Despite the additional time, the most recent order shows, CMS still had not produced all records.
“Plaintiff has credibly demonstrated that there are still at least three documents Defendants have identified as responsive but not produced as of the filing of the current Motions,” the judge wrote.
As a result, the judge ruled that CMS and the city should have its motions for summary judgement stricken and pay attorney’s fees for the costs associated with the motions to compel. That amount has not yet been set.
A spokeswoman for CMS refused to answer any questions for this story, including whether the school board was aware of the court’s recent ruling or whether the board knew the district had not produced information about students who reported sexual assault. The spokeswoman did say that CMS planned to appeal the ruling.
WBTV has a lawsuit pending against CMS seeking similar records showing the number of students who reported sexual assault, among other records.
And, separately, WBTV has also sued the city challenging its refusal to produce records.
Charlotte City Attorney Patrick Baker declined to answer questions about the sanctions, citing the ongoing lawsuits but said he disagreed with the court’s orders.
“While we do not agree with the imposition of sanctions in either case, we do take the orders of the court seriously,” Baker said. “It is never in the interest of the City to delay or obstruct the orderly production of discovery material in litigation.”
Sneed, the attorney, said the sanctions orders raise greater questions about transparency and access for members of the public.
“If we can’t count on our government officials to preserve documents and deal fairly in litigation, I’m not sure why we would trust them on any number of items,” he said.
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