Judge recommends sanctions against Detroit in Tamara Greene case

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Detroit — A federal magistrate judge issued a report Wednesday finding the city of Detroit’s lawyers responsible for hiding or destroying evidence ordered preserved in a lawsuit filed by the survivors of a murdered stripper rumored to have danced at the infamous and never-proven party at the Manoogian Mansion.

The lawsuit demands $150 million and accuses former Mayor Kwame Kilpatrick and the city of obstructing an investigation into the unsolved slaying of Tamara “Strawberry” Greene.

Attorney Norman Yatooma had asked for sanctions in June, claiming the city blatantly disregarded the judge’s order to preserve emails and other evidence that could shed light on Greene’s death in April 2003.

Yatooma called U.S. Magistrate Judge R. Steven Whalen’s findings Wednesday “the single most significant occurrence in this case to date.”

“This ruling is epic,” he said Wednesday. “Our young plaintiffs deserved this vindication.”
Chief U.S. District Judge Gerald Rosen in March 2008 ordered the preservation of emails from Aug. 1, 2002, through June 30, 2003, of Kilpatrick; his former chief of staff, Christine Beatty; Ruth Carter, former Detroit corporation counsel and now 36th District judge; and former Detroit Police Chief Ella Bully-Cummings.

“Those emails should have remained on the city’s servers. They did not, and the city has not produced any emails from that period,” Whalen wrote.

Whalen complained in his report about the city’s various explanations of what happened to the evidence. A city attorney told Rosen that Kilpatrick’s and Beatty’s emails were “electronically shredded,” but a city computer expert testified he could find no evidence of the files being deleted. The city claimed computers used by individuals showed no signs of the existence of email.

“While the City’s failure to disclose this information earlier underscores its almost unfathomable lack of diligence in meeting its discovery obligations,” Whalen wrote, “(the computer expert’s) unrebutted testimony that any undeleted emails would reside on the servers, not on individual computers, in fact demonstrates that these hard drives and CDs would have no value in determining whether and when the emails were, as (the city’s lawyer) put it, ‘electronically shredded’ from the servers.”

Whalen recommended financial sanctions against the city’s lawyers and suggested to Rosen, who is overseeing lengthy pretrial motions, that jurors should be told about the destruction of evidence and receive special instructions to consider the city’s action in a negative light when awarding damages.

John E. Johnson, who succeeded Carter, was singled out for the harshest criticism in Whalen’s report.

“The city should be sanctioned under this section, as should Mr. Johnson, who was completely derelict in his obligation to inform all pertinent city departments of Judge Rosen’s orders. I therefore recommend that plaintiffs be directed to submit a bill of costs detailing attorney time and fees, along with costs, and that they be awarded reasonable attorney fees and costs, to be divided equally between the city and Mr. Johnson.

“Most disturbing is the testimony of John Johnson, testimony that I find to have been dishonest and misleading,” Whalen wrote.

Johnson already has been convicted of professional negligence by the state’s Attorney Discipline Board for his part in trying to hide the text messages unearthed by whistle-blower cops who sued the city and got an $8.4 million settlement. The deal had included a secret provision to keep the messages under wraps.

Whalen noted that the city’s lawyers said Kilpatrick’s and Beatty’s email accounts were deleted and purged from the electronic storage system when they resigned in 2008, while facing charges related to the text message scandal. “The inescapable conclusion is that the city, which had possession and control of the emails that were on its servers, caused those emails to be deleted, depriving the plaintiffs of the discovery they requested. However, there was no evidence produced showing that Mr. Kilpatrick himself destroyed any emails or that he ordered their destruction.”

Whalen reasoned that the action apparently took place after his resignation and after he held control over the city and its staff.

“Therefore, defendant city of Detroit, not Mr. Kilpatrick, should be sanctioned,” Whalen wrote.

Whalen rejected Yatooma’s demand for a default judgment.

“While the city’s conduct in this case — and particularly the conduct of its attorneys — is deeply troubling, entry of a default judgment is not warranted,” Whalen wrote.

But he added, “It would be a gross understatement to say that the city acted in bad faith and was at fault in causing the destruction of evidence.”

http://www.detnews.com/article/20110804/METRO/108040406/Judge-recommends-sanctions-against-Detroit-in-Tamara-Greene-case

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