In last week’s post, we discussed the case of Congregation Rabbinical College of Tartikov, Inc., v. Village of Pomona. That case involves a contested land use application for a rabbinical college that has cost the Village of Pomona and its tax payers in excess of $1.5 million in legal fees to defend. This week’s post looks at the Facebook posts and text messages that were posted and sent after the litigation began, and the sanctions that were imposed by the Court against the Village for its failure to disclose them during discovery.
The Facebook Posts and Text Messages
In May 2013, a Village Trustee posted a comment on her personal Facebook page about her disapproval of an all-male gathering of Hasidic/Orthodox Jews at a municipal facility. Their religion was not explicitly mentioned in the Facebook post. This posting was followed by what the Court described as “an angry text message exchange” between the Village Trustee and the Mayor of the Village, which resulted in the Trustee deleting her Facebook post.
In March 2015, the Mayor posted a comment to his personal Facebook page about an article in a local newspaper. In the posting, the Mayor slammed the 2013 posting by the Trustee (who by then was no longer a Trustee), noted that her 2013 post was particularly egregious in light of the pending lawsuit, was a “total lapse in reason and judgment,” and mentioned that text messages had been exchanged between them at the time. The Mayor also noted that he couldn’t conceive of anyone considering the former Trustee as a viable candidate if she ever ran for election again, given her “predisposition to making such blatant and inappropriate remarks.”
The Mayor’s Facebook posting was quickly followed by a discovery demand by the plaintiffs asking for all social media postings and comments, including the text message exchange. The Village Defendants responded that the Mayor did not have a copy of the 2013 Trustee Facebook post and produced only a part of the text message exchange. The part that was produced was an eye-opener. It had the Mayor asking the Trustee whether it was her “intention to cause damage to the village” and “is it your intent to jeopardize the target…then you are succeeding and may cause us to loose! (sic).” The portion of the Trustee’s responsive text that was produced noted that the Trustee understood the Mayor’s anger and would review her postings and delete them “to make sure there are no more unfortunate mistakes.” The Mayor responded that his head was about to explode, that a case in New Jersey found that an official’s comments in an non-official setting led the court to find potential prejudice and publicly commenting on an all-male gathering related to a religious entity “is not good.”
Plaintiffs alleged that the Mayor lied about preservation of evidence when he certified interrogatory responses in July 2013, two months after the initial Facebook and text message exchange, that all relevant evidence had been preserved by the Village.
The Court Finds The Village Guilty Of Spoliation Of Evidence
In his September 2015 summary judgment decision, the Court ruled that the Village was under an obligation to preserve this evidence. The Court rejected the Village’s contention that its officials did not think the post and texts were relevant, noting that once litigation has commenced, the usual retention procedures must be suspended and a “litigation hold” must be put in place to ensure relevant documents are preserved. In finding the Village guilty of spoliation of evidence, the Court cited to that fact that the lawsuit was commenced in 2007, 6 years before the Trustee’s Facebook page posting, the posting concerned a gathering of individuals of the same religious observation as the plaintiffs, the Mayor’s strong reaction to the posting and the Trustee’s comment about her “unfortunate mistakes” to demonstrate that the Facebook post and text messages should have been preserved and were relevant to the case. The Court also determined that the destruction of this relevant evidence had been done in bad faith.
As a result, the Court ruled that severe sanctions were warranted. These include an adverse inference of the Village’s discriminatory motivation. At trial, the jury will be instructed that the Facebook post indicated discriminatory animus toward the Hasidic Jewish population. While the Village will be allowed to present evidence that the challenged laws were not adopted for discriminatory purposes, the adverse inference may be difficult to overcome. The Court also awarded attorneys fees as a sanction. In a ruling dated May 25, 2016, the Court directed the Village to pay legal fees totaling $42,940.00 to the plaintiffs’ attorneys.
To read more about the underlying issues please see our prior posting at http://www.lilanduseandzoning.com/2016/06/20/1424/. The matter is scheduled for trial sometime later this year.