Late Friday, the IRS apparently advised the Ways & Means Committee that the IRS has lost Lois Lerners hard drive which includes thousands of Defendant Lerners e-mail records. However, several statutes and regulations require that the records be accessible by the Committees, and, in turn, must be preserved and made available to TTV in the event of discovery in the pending litigation. Those statutes include the Federal Records Act, Internal Revenue Manual section 1.15.6.6 (which refers to the IRSs preservation of electronic mail messages), IRS Document 12829 (General Records Schedule 23, Records Common to Most Offices, Item 5 Schedule of Daily Activities), 36 C.F.R. 1230 (reporting accidental destruction,) and 36 CFR 1222.12. Under those records retention regulations, and the Federal Records Act generally, the IRS is required to preserve emails or otherwise contemporaneously transmit records for preservation.
Therefore, the failure for the IRS to preserve and provide these records to the Committees would evidence either violations of numerous records retention statutes and regulations or obstruction of Congress.
Federal courts have held, in the context of trial, that the bad faith destruction of evidence relevant to proof of an issue gives rise to an inference that production of the evidence would have been unfavorable to the party responsible for its destruction. See Aramburu v. The Boeing Co., 112 F.3d 1398, 1407 (10th Cir. 1997). The fact that the IRS is statutorily required to preserve these records yet nevertheless publicly claimed that they have been lost appears to evidence bad faith. 18 U.S.C. § 1505 makes it a federal crime to obstruct congressional proceedings and covers obstructive acts made during the course of a congressional investigation, even without official committee sanction. See, e.g., United States v. Mitchell, 877 F.2d 294, 30001 (4th Cir. 1989); United States v. Tallant, 407 F. Supp. 878, 888 (D.N.D Ga. 1975).
Further, by letters dated September 17, 2013, TTV provided notice to counsel for the individual IRS Defendants in this litigation. The Individual Defendants are: Steven Grodnitzky, Lois Lerner, Steven Miller, Holly Paz, Michael Seto, Douglas Shulman, Cindy Thomas, William Wilkins, Susan Maloney, Ronald Bell, Janine L. Estes, and Faye Ng. TTVs September 17, 2013 correspondence reminded you and your clients of the Individual Defendants obligation not to destroy, conceal or alter any paper or electronic files, other data generated by and/or stored on your clients computer systems and storage media (e.g. hard disks, floppy disks, backup tapes) or any other electronic data, such as voicemail. We identified the scope as encompassing both the personal and professional or business capacity of your clients and involving data generated or created on or after July 15, 2010. See Attached Letters to Ms. Benitez and Messrs. Lamken and Shur.
As the D.C. District Court has found, [a] party has a duty to preserve potentially relevant evidence . . . once [that party] anticipates litigation. Zhi Chen v. District of Columbia, 839 F. Supp. 2d 7, 12 (D.D.C. 2011) (internal citations omitted). In fact, [t]hat obligation runs first to counsel, who has a duty to advise his client of the type of information potentially relevant to the lawsuit and of the necessity of preventing its destruction[,] and also extends to the managers of a corporate party, who are responsible for conveying to their employees the requirements for preserving evidence. Id. (internal citations omitted).
By letter dated September 25, 2013, Ms. Benitez acknowledged receipt of our litigation hold letter, and vociferously objected to our having the temerity to send such a letter, rejecting our characterization of documents to be preserved. Indeed, Ms. Benitez, you indicated that you took great offense at having been put on notice to preserve and maintain documents related to the issues of this litigation. You further advised however, that you would continue to advise your clients as appropriate and, as always, will abide by my legal and ethical obligations. Attached Response of Ms. Benitez.
What exactly makes you think they can compel Lerner to testify to if they can't get the IRS to cooperate and provide information? If they grant her immunity, what exactly would stop her from not disclosing anything, the evidence to be used against her just magically gets lost.
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