For better or worse, however, it looks like the possible destruction of evidence will now be the focal point of the Connecticut Coalition for Justice in Education Funding’s [“CCJEF”] long-running case against the State of Connecticut. Shortly before Thanksgiving, both The Connecticut Mirror and Hartford Courant reported that the CCJEF case would be indefinitely delayed because of allegations that CCJEF’s Executive Director, Dianne deVries, directed potential witnesses to destroy e-mails so that they would not be discovered and potentially used by the State at trial.
We’ve previously covered the CCJEF litigation in depth on Education Law Notes, but for the uninitiated, the CCJEF case is all about school funding. Way back in 2005, CCJEF sued the state on the grounds that the state’s educational funding system – namely the Educational Cost Sharing [“ECS”] grant program – violates the Connecticut Constitution because it systematically deprives children from poor municipalities of constitutionally adequate educational opportunities.
After years of litigation, including a seminal 2010 decision in the case by the Connecticut Supreme Court that found that the Connecticut Constitution does in fact entitle Connecticut children to minimally adequate educational opportunities, the CCJEF case had been scheduled to go to trial in January. On November 25, 2014, however, Hartford Superior Court Judge Kevin Dubay put the case on hold because of the production of over one hundred e-mails in which Ms. deVries purportedly directed prospective witnesses and others to destroy e-mails so that they would not end up in the hands of the state. The hundred-plus e-mails that were produced were obviously not destroyed, but it is unclear at this point if other e-mails were deleted.
Examples of the e-mails in question are attached as exhibits to a State pleading. The e-mails themselves are pretty embarrassing in their own right, but at this point embarrassment should be the least of CCJEF’s concerns.
The purposeful destruction or “spoliation” of evidence during litigation is a cardinal sin. For starters, if the trial court finds that e-mails were intentionally destroyed it can reach an adverse factual inference against CCJEF with respect to those e-mails. This means that the court may assume that the evidence contained within the e-mails or any other deleted or altered evidence would have been unfavorable to CCJEF. Secondly, in 2006 the Connecticut Supreme Court recognized a new tort-based cause of action for the intentional spoliation of evidence in Rizzuto v. Davidson Ladders Inc., 280 Conn. 225 (2006). Under the law, a defendant who knows of a pending or impending lawsuit and intentionally destroys evidence in order to deprive a plaintiff of the chance to prove his or her case, can be liable to the plaintiff for damages.
Here, since deVries is an agent of the plaintiff, and not the defendant, it is unclear whether a claim of intentional spoliation of evidence would necessarily fit. At the same time, subjecting defendants but not plaintiffs to Rizzuto’s common-law remedy would not only be inequitable, but it would also be contrary to public policy, which understandably frowns upon any party intentionally destroying evidence. In any event, Connecticut’s Rules of Practice and state statute provide other remedies for spoliation. For example, Practice Book Section 13-14 would seemingly allow the court to enter a series of sanctions against CCJEF if it is proven that CCJEF intentionally destroyed or altered evidence. In addition, Section 13-14 allows a trial court to enter orders regarding evidence and payment of attorney fees for a party’s misconduct during discovery, and it even allows for an entry of judgment against the offending party.
At this point, where the State’s spoliation claim will ultimately lead is an open question, although further action by the CCJEF trial court regarding this issue is undoubtedly coming. What does seem clear is that this latest development will, at the very least, result in another lengthy delay before the long, long-awaited CCJEF trial finally begins.