Devices turned up missing after city, county lawyers sought information during discovery phase of lawsuit
The city of Graham defendants in a pending federal suit over the ill-fated march in downtown Graham on October 31, 2020 that ended with pepper spray claim in their latest filings that six out of 13 individual adult plaintiffs have either “lost access to or lost/destroyed devices, containing” information relevant to the litigation that they city had requested more than six months ago.
Those devices were part of the city’s request for the production of evidence, in the initial “discovery phase” of the federal suit (see related story, this edition).
See additional coverage of the lawsuit and current developments here: https://alamancenews.com/settlement-attempt-between-graham-protesters-fails/
Raleigh attorney Anthony Biller, who is representing the Graham city defendants, wrote a letter last month to one of the attorneys for the plaintiffs, Elizabeth Haddix of the Lawyers Committee for Civil Rights Under Law, outlining the alleged “spoliation of potentially highly relevant evidence” in a federal lawsuit that has been underway since November 2, 2020.
Rev. Gregory Drumwright, one of the main organizers for the “I Am Change Legacy March to the Polls” in downtown Graham that ended with pepper spray on October 31, 2020, claims that the cell phone he possessed on the day of the march is no longer operational and he is unable to locate it. “Plaintiff Drumwright failed to produce documents and/or information contained on this device,” Biller wrote in his letter to Haddix.
Cell phones that plaintiffs Faith Cook, Avery Harvey, Melanie Mitchell, Janet Nesbitt, and Ernestine Lewis Ward possessed on October 31, 2020 have also been broken or lost, according to Biller’s letter to Haddix.
“Over the fourteen months this case has been in litigation, an alarming amount of spoliation appears to have taken place,” Biller wrote. “We do not understand how plaintiffs lost valuable evidence when they initiated litigation a mere two days after the protest giving rise to this lawsuit. It appears grossly inadequate measures were utilized to prevent spoliation.”
Biller also asserts that plaintiffs Harvey, Mitchell, Nesbitt, and Ward later lost access to social media and email accounts they had been using at the time of the march in October 2020 – and are unable to recover any data that the defendants asked for in the initial discovery phase.
“This loss of data occurred despite very clear federal law concerning the preservation of relevant evidence as well as the generally prevalent use and availability for backing up and preserving such electronic evidence,” Biller wrote. “All claimed losses to accounts or physical devices occurred in 2021, well after each plaintiff was already actively engaged in the present litigation.”