Sheriff's Office That Employed A Deputy Facing 9 Lawsuits And 44 Criminal Charges Says It Has Lost All Of His Dashcam Footage

from the nothing-suspicious-about-this-at-all dept

Hamilton County (TN) Deputy Daniel Wilkey is in more trouble than possibly any other law enforcement officer has ever been in. Currently facing nine lawsuits over his bizarre and disturbing rights violations, Wilkey is simultaneously facing 44 criminal charges, 25 of which are felonies.

Wilkey's rights violations were especially creative. He forced one woman to undergo an involuntary mid-winter baptism in a nearby lake in exchange for some assistance with the drug charges Wilkey was filing against her. In another incident, Wilkey pulled over a car full of minors, forcing the only male occupant to strip to his boxers while he alternated between swearing at the teens and preaching to them.

The criminal charges against Wilkey are a hideous blend of mundane and horrifying -- ranging from reckless driving to false imprisonment to stalking to rape. Wilkey could have been taken off the street anytime before this turned into national news, but the Hamilton County Sheriff's Department apparently felt eight internal affairs investigations in ten months was acceptable behavior, rather than a continuous stream of misconduct it should have diverted before it overflowed the office's capacity to control the narrative.

But the Sheriff's Office seems determined to protect Wilkey from the consequences of his actions. As Courthouse News reports, a whole lot of camera footage from Wikey's patrol car has suddenly gone missing. The attorney for the woman who was forcibly "baptised" by Wilkey has just discovered months of possibly-damning footage has mysteriously vanished.

A few weeks ago, the woman’s attorney, Robin Flores, learned that the county admitted in another case in Tennessee state court that the server storing all the dash-cam footage the Hamilton County Sheriff’s Office recorded from Oct. 25, 2018, to Jan. 23, 2020, suffered a software failure.

According to the county, all the footage is gone and unrecoverable.

Flores has asked the court to ensure any recoverable footage is recovered and anything else that may have been recorded be preserved and handed over to his client. The court agrees this is a suspicious and oddly convenient software failure.

Before appointing a forensic examiner or considering sanctions against a Tennessee county for the loss of months of dashboard-camera footage — possible evidence for nine lawsuits against a single sheriff’s deputy accused of a range of misconduct — a federal magistrate wants to ensure the footage is actually gone.

Calling the loss of the data a “front-burner item,” U.S. Magistrate Judge Christopher Steger in Eastern District of Tennessee said Tuesday that Hamilton County, which sits in the southeast corner of the state, had a duty to preserve evidence — including the dash-cam footage of the traffic stops in question.

The preservation request [PDF] points out that the date range of the "lost" footage covers most of the incidents Wilkey is being sued over. It also points out the Sheriff's Office never notified any of the nine plaintiffs (or the judges overseeing the cases) about the lost footage.

Here, this data appears to have been lost for more than a month yet no notice of its loss has ever been provided to the Plaintiff, notwithstanding her spoliation demands and her properly served discovery demands. The only way this loss came to Plaintiff’s attention today (February 28, 2020) was when counsel was reviewing the Hinds matter and saw the undated letter attached to a state court pleading filed on the same day. The letter indicates that the Sheriff’s Office has been working on this problem for “several weeks” and it may be inferred that the loss occurred on or about January 23, 2020, the last date for which the data was lost.

There's nothing in it for the Sheriff's Office. Ensuring the footage remains intact only raises questions about why it didn't do anything sooner to get Wilkey taken off the streets, if not removed from the force entirely. So, it took 180 hours of dashcam footage, moved it to an external hard drive, and than claimed a "software failure" suddenly made all of this evidence irrecoverable. There's no reason to believe this was an accident -- not until the Sheriff's office makes some sort of showing it actually cares about the people it's supposed to be protecting and serving.

Filed Under: daniel wilkey, dashcam, evidence, evidence destruction, tennessee

Court Says Deleting Browser History To 'Avoid Embarrassment' Isn't Destruction Of Evidence

from the those-that-delete-the-past-are-doomed-to-repeat-it dept

A court order demanding the retention of digital evidence morphed into the worst-case scenario for a defendant in a Canadian "breach of confidence" lawsuit. Even though the defendant's actions were ultimately deemed lawful, the intended effect of the questioned action was undone by the judicial discussion of them.

Melissa Caldwell of CyberLex has more details on the events leading up to this unfortunate conclusion:

The underlying action arose after Moyse, who had been employed by Catalyst, left the company to take a position with a competing investment management firm. Catalyst brought an action for breach of confidence for the alleged misuse of confidential information regarding a target company in which Catalyst had unsuccessfully attempted to acquire an interest. Subsequently, the target company was successfully acquire by Catalyst’s competitor, and Catalyst claimed Moyse had delivered Catalyst’s confidential information to its competitor and its competitor had used it in the successful acquisition.

After Moyse had joined the competitor company and before this action was commenced, Catalyst obtained a consent order requiring Moyse and the competitor company to preserve and maintain all records in their possession, power or control “relating to Catalyst and/or related to their activities since March 27, 2014 and/or related to or was relevant to any of the matters raised in the Catalyst action.” The order required specifically that Moyse turn over his computer to counsel for forensic imaging of the data stored on it.

However, before turning his personal computer over to his lawyer, Moyse deleted his personal browsing history and purchased software entitled “RegCleanPro” to further delete registry information.

Catalyst claimed Moyse had destroyed evidence by deleting his browser history. Moyse countered that the preservation order did not specify his computer needed to be kept in "as is" condition -- free from any alterations until it could be imaged. He also pointed out that Catalyst was interested in company documents, rather than his personal internet use. And he had a very good reason for deleting his browser history, seeing as the contents of his computer were about to be made public -- a reason the court sympathized with [PDF] when considering the implications of the preservation order.

I accept Mr. Moyse's evidence as to why he deleted his internet browsing history. There is no evidence to contradict his statements as to why he deleted his internet browsing history. He was a young man at the time who had a very close relationship with his girlfriend who is now his fiancée. He did not want his internet searching to become part of the public record.

The court found that the documents central to the lawsuit were not affected by Moyse's actions. They were available through Dropbox accounts and forensic examiners found no evidence Moyse had ever transferred the documents to his personal Dropbox account. In addition, they found the last time he accessed his account predated his work on the disputed documents.

As for Moyse, his attempt to keep his access of porn sites under wraps backfired. He may have been cleared of evidence spoliation accusations, but his personal web browsing habits still made it into the public record -- albeit without the excruciating level of detail that would have been present if he hadn't thought to scrub his browsing history before turning over the computer.

Filed Under: browser history, evidence, evidence destruction

Judge Walton Catches The DOJ Withholding Info About NSA Metadata Lawsuits

from the I-may-actually-miss-this-guy-once-he's-gone dept

Another FISC opinion and order has just been released dealing with the NSA's retention of metadata that may be used as evidence in some ongoing lawsuits against the government. The DOJ had originally asked to hold onto the pertinent data past the five-year expiration date because of these pending lawsuits. This request was shot down by FISC judge Reggie Walton, who stated that holding Americans' data past the disposal date put the surveillance programs on shaky Constitutional grounds, while also pointing out that the government's arguments relied on caselaw dealing with the retention of corporate documents, something which clearly wasn't in the same league as data collected on Americans.

Shortly thereafter, a federal court handling two lawsuits (Jewel v. NSA [this is an EFF lawsuit originally filed in 2008], First Unitarian Church v. NSA) centered on NSA domestic surveillance issued a temporary restraining order on the destruction of relevant metadata. This was brought about by the DOJ's announcement that it would begin destroying the relevant data for these two cases based on Walton's February order.

This is where the DOJ starts looking very shady, according to Judge Walton's recounting of the events.

The March 10 Motion further indicated that one of the MDL cases, Virginia Shubert, et al., v. Barack Obama, et al. No. 07-cv-0603 (N .D. Cal.) remains in litigation, and the MDL preservation order remains in effect for that case. Additionally, the March 10 Motion stated that the Jewel case, which was filed in 2008, was designated by the District Court as a related action to the Hepting matter, and that Court entered an evidence preservation order in Jewel, based on the MDL evidence preservation order, which remains in effect. LCL The March 10 Motion noted that the plaintiffs in Jewel and First Unitarian contacted the government on February 26, 2014, regarding the relevance of these preservation orders to the February 25 Motion, and made a "specific request" that the government inform the FISC of their existence.

The plaintiffs asked the government to inform the FISC about their existence so that their data could be retained as well. That never happened. Instead, they were forced to file a Temporary Restraining Order in order to prevent this data destruction. This was granted by the circuit court judge and brought to the FISA Court, where Judge Walton ordered the extended retention of data specifically related to these cases. In its response filing, the DOJ had this to say about the plaintiffs who asked them to speak to the FISA court.

A footnote in the March 13 Response indicated that, "[c]ontrary to their representation . . . [the m]ovants did not make a 'specific request' that the government inform this Court about the preservation orders in Jewel and Shubert."

The DOJ included (as an exhibit) email correspondence between it and the plaintiffs of the lawsuit as support for its claim that no request was made. Upon review by Judge Walton, that assertion was false. Walton gives the government an out by claiming it may have just misperceived which surveillance program was being discussed (Section 215 vs. an "executive authority" program -- Section 501), but even then, he points out that the plaintiffs disagreed with the DOJ's reading of the situation.

From this point on, Walton takes the DOJ to task for deceiving the court (whether deliberately or otherwise).

As the govemment is well aware, it has a heightened duty of candor to the Court in ex parte proceedings. Regardless of the government's perception of the materiality of the preservation orders in Jewel and Shubert to its February 25 Motion, the government was on notice, as of February 26, 2014, that the plaintiffs in Jewel and First Unitarian believed that orders issued by the District Court for the Northem District of California required the preservation of the FISA telephony metadata at issue in the government's February 25 Motion. [E-mail Correspondence at 6-7.] The fact that the plaintiffs had this understanding of those preservation orders -- even if the government had a contrary understanding - was material to the FISC's consideration of the February 25 Motion. The materiality of that fact is evidenced by the Court's statement, based on the information provided by the government in the February 25 Motion, that "there is no indication that any of the plaintiffs have sought discovery of this information or made any effort to have it preserved.

The above might be written off as a failure to communicate, but Walton's next paragraph details even more DOJ malfeasance.

The government, upon learning this information, should have made the FISC aware of the preservation orders and of the plaintiffs' understanding of their scope, regardless of whether the plaintiffs had made a "specific request" that the FISC be so advised. Not only did the government fail to do so, but the E-mail Correspondence suggests that on February 28, 2014, the government sought to dissuade plaintiffs' counsel from immediately raising this issue with the FISC or the Northern District of Califomia.

The next filing entered should be rather informative, based on Walton's demands.

It is FURTHER ORDERED that the government shall make a filing with this Court pursuant to Rule 13(a) of the United States Foreign Intelligence Surveillance Court Rules of Procedure Rules of Procedure") no later than April 2, 2014. As part of this filing, the government shall explain why it failed to notify this Court of the preservation orders in Jewel and Shubert and of the plaintiffs' understanding of the scope of those orders, upon learning that plaintiffs' counsel viewed those orders as applying to the Section 501 telephony metadata at issue in the February 25 Motion.

This latest order from Judge Walton shows that the government wants to destroy data that might be used as evidence. There was some back-and-forth previous to this, but the DOJ probably had a good idea what Judge Walton would say back in February when it showed up to ask to hold on to domestic surveillance records indefinitely, deploying civil litigation guidelines and common law requirements as its only rhetorical weapons. Walton refused and the DOJ went happily off to tell plaintiffs that the FISA court had overridden their existing preservation orders. If the plaintiffs hadn't asked for a temporary restraining order, it might have gotten away with it.

Filed Under: doj, evidence, evidence destruction, fisa court, fisc, jewel v. nsa, metadata, reggie walton
Companies: eff

Howell Loses To RIAA... But For Evidence Destruction

from the well-that-was-just-dumb dept

One of the more well-publicized lawsuits involving the RIAA was the Howell case, which got a lot of press when some folks misread the RIAA's filings against Howell. Either way, that point became meaningless when the judge ruled in Howell's favor that "making available" is not infringement by itself. Of course, that argument was just for the RIAA's attempt at a summary judgment. So the case still went on, and it turns out that Howell was caught destroying evidence -- a big no-no. So, despite all of this, it's no surprise that the RIAA has prevailed in the overall case. It does make you wonder why people who have strong evidence against them still end up fighting the RIAA. It's completely admirable to fight the RIAA if they're using faulty or flimsy evidence and you're innocent, but when the evidence suggests otherwise, what good does it possibly do to fight them in court? In the meantime, the RIAA will certainly talk up this "victory" but will skip over the part that it wasn't on the actual issues, but over Howell's decision to destroy evidence.

Filed Under: evidence destruction, howell
Companies: riaa