From The Press-Herald:
Hundreds of emails were deleted from the accounts of Robert Indiana and his caretaker in the period leading up to the artist’s death and the beginning of the legal battle over the rights to his works such as the iconic “LOVE” image, according to an independent consultant’s report filed in federal court Wednesday.
The attorney for the art dealer that is suing Indiana’s estate included the report with a letter, filed in U.S. District Court in New York, asking the judge to settle the lawsuit in his client’s favor, saying that caretaker Jamie Thomas, who also had power of attorney for Indiana, deleted emails that would have proven their case.
Luke Nikas, the lawyer for the Morgan Art Foundation, said the missing emails are important because they might reveal Indiana’s attitude and mindset about the work in dispute, as well as other issues in the lawsuit. He’s asking the judge for what he called “litigating-terminating sanctions” against Thomas and Indiana’s estate because key evidence was willfully destroyed.
James Brannan, the Rockland-based attorney who represents Indiana’s estate and is a subject in the Morgan lawsuit, called the move “a Hail Mary pass with no receivers in the end zone.”
. . . .
According to the report, about 500 emails were deleted, including 227 messages between Thomas and Indiana, leading up to and soon after Indiana’s death in his Vinalhaven home, the Star of Hope, in May 2018. In the suit it filed against Indiana the day before he died, the Morgan Art Foundation alleges that Thomas and others close to Indiana isolated him before his death and made fraudulent artwork under his name. The Morgan Art Foundation has held rights to many of Indiana’s best-known and most-valuable artworks, including his widely reproduced “LOVE” image, since the late 1990s, and contends the value of Indiana’s art and reputation were harmed by the actions of Thomas and others.
“Indiana’s knowledge and approval and state of mind were critical, and it was obvious he used email frequently, yet all his emails were destroyed,” Nikas said in a phone interview. “When a central witness who can no longer testify has had a substantial percentage of emails destroyed, the only way (forward) is to terminate the case in Morgan’s favor. It’s clear to us the deletion was intentional.”
Link to the rest at The Press-Herald
Wouldn’t the senders/recipients of the email correspondence still have their own copies?
They would, but, presumably, Robert Indiana’s caretaker had access to both his and Indiana’s email accounts and could delete any messages that went back and forth between them plus any other messages in either account.
In order to collect copies of emails of those who are not parties to the lawsuit, you would need to know who they were and, absent voluntary cooperation, need to persuade a judge that such third parties were in sole possession of important evidence necessary to the prosecution or defense of the lawsuit.
Since not many people are anxious to become witnesses in civil litigation and since, absent some sort of court order binding upon them, they might not be anxious to open up their email accounts and, depending upon the rules/laws in a particular jurisdiction, such individuals might not have any reason not to destroy those emails, absent a subpoena that had already been served upon them.
There is a civil cause of action for spoliation of evidence in some jurisdictions that allows a party to a lawsuit sue a third party that possessed evidence, but then destroyed it or allowed it to be destroyed or damaged, but you have to know that the third party was in possession of material evidence and intentionally, recklessly, or negligently withheld, hid, alter, fabricated or destroyed such evidence and that the evidence was relevant to the legal proceeding.
As mentioned, some jurisdictions (generally states) recognize a tort of spoliation and others do not.
There’s a criminal counterpart to spoliation generally referred to as tampering with evidence, but that is charge that is generally applicable only to evidence that is relevant to a criminal proceeding, not a civil proceeding as described in the OP.
If you want more information on spoliation:
1. Wikipedia – https://en.wikipedia.org/wiki/Spoliation_of_evidence
2. Turning to a 3rdparty for evidence in a lawsuit? Ensure it’s available – https://www.bfvlaw.com/no-independent-cause-of-action-for-third-party-spoliation-of-evidenceyet/
3. Yes, I Destroyed the Evidence – Sue Me? Intentional Spoliation of Evidence in Illinois – https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1536805
As PG mentioned, spoliation is a matter that varies from state to state, so concrete advice would require an attorney knowledgeable about this field of law in the state or states involved in the dispute.
Some businesses or organizations have standards for the retention of electronic records that often direct employees to destroy emails, old drafts of agreements, etc., after a certain period of time. Presumably competent counsel has reviewed and approved of such a policy in advance.
That said, far more than one employee has had a CYA attitude that means she/he doesn’t ever delete anything.
I’m not sure that it is relevant, but there is a fair chance that the deleted emails exist on a server or tape archive somewhere, if Indiana’s organization had not set up their own email service, which seems unlikely. I’m curious whether that avenue will be explored. I imagine a court order to the email provider would yield the emails.
I remember that retaining control of archives was an argument against outsourcing email services thirty years ago. Certain executives of my acquaintance would not use email because they feared retention.