United States of America v. St. Bernard Parish

Filing 253

ORDER AND REASONS denying 190 Motion for missing evidence instruction. Signed by Judge Helen G. Berrigan on 04/22/2013. (Reference: 12-0321)(kac, ).

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA

UNITED STATES OF AMERICA,

CIVIL ACTION

VERSUS

NO. 12-321
Combined with NO. 12-322
& NO. 12-325
Pertains to 12-321

ST. BERNARD PARISH, ET AL

SECTION “C” (1)
ORDER AND REASONS

Before the Court is the United States' motion for a missing evidence instruction. Rec.
Doc. 190. Defendants oppose the motion. Rec. Doc. 210. Having considered the record, the
memoranda of counsel and the law, the Court DENIES the motion for the following reasons.
I. BACKGROUND

Plaintiffs filed these cases alleging violations of the Fair Housing Act, Title VIII of the
Civil Rights Act of 1968, 42 U.S.C. §§ 3601-3631, and of 42 U.S.C. §§ 1981 and 1982, against
St. Bernard Parish ("St. Bernard" or "the Parish"). The United States brought suit against St.
Bernard Parish on January 31, 2012 in case number 12-321. On the same day, Plaintiffs Greater
New Orleans Fair Housing Action Center (“GNOFHAC”), Kiana Alexander, Nancy Bain, Cody
Belitz, George Dubois, Carolyn Harris, Patricia Hendrix, David Jarrell, Al Neep, and Tonya
Neep brought case number 12-322 against St. Bernard Parish, St. Bernard Parish Council, St.
Bernard Parish Planning Commission, Craig Taffaro and several other defendants that have since

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been terminated from the case. Case number 12-325 was also brought on the same day by
NOLA Capital Group, LLC. St. Bernard Parish and St. Bernard Parish Council are the
remaining defendants in that case.
In the aftermath of Hurricanes Katrina and Rita in 2005, there was widespread flooding
in St. Bernard Parish. Plaintiffs contend that in response to the destruction and displacement
caused by the hurricanes, St. Bernard Parish undertook to preserve its pre-hurricane
demographics by enacting a series of zoning laws to block the availability of rental and multifamily housing. Case no. 12-325, Rec. Doc. 1 at 2. Plaintiffs claim that the intent and effect of
these zoning laws was to prevent African Americans and other minorities from re-settling in St.
Bernard Parish. Id. This Court previously considered similar litigation alleging that St. Bernard
Parish enacted zoning laws that constituted discriminatory housing practices in case number 067185 and others. In that case, number 06-7185, plaintiffs moved to enjoin an ordinance known
as the “blood relative ordinance,” which prohibited persons from renting, leasing, loaning, or
otherwise allowing occupancy or use of any single-family residence other than by family
members related by blood, without first obtaining a special permit from the St. Bernard Parish
Council. Case no. 06-7185, Rec. Doc. 1. The parties to case number 06-7185 entered a Consent
Order in this Court in February 2008. Id. Rec. Doc. 114. Pursuant to that order, St. Bernard
Parish rescinded the blood relative ordinance and are permanently enjoined from re-enacting it.
The present cases concern Ordinance #697-12-06, which was enacted December 19, 2006
and took effect on January 4, 2007. Case no. 12-325, Rec. Doc. 1 at 8; Case no. 12-322, Rec.

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Doc. 14 at 13. The ordinance allegedly replaced the blood relative restriction and the conditional
use permit requirement with a new requirement that prohibited homeowners from renting out
single-family residences located in zone R-1 without first obtaining a Permissive Use Permit
(“PUP”) from St. Bernard Parish Council. Plaintiffs contend that the enactment and the
subsequent enforcement of the PUP ordinance was intended to deny rental housing opportunities
to African Americans. Case no. 12-321, Rec. Doc. 1, Case no. 12-322, Rec. Doc. 14, Case no.
12-325, Rec. Doc. 1. Defendants maintain that the ordinance was not part of any pattern or
practice of discriminatory conduct ever in place. Case no. 12-321, Rec. Doc. 28 at 3. Defendants
argue that because St. Bernard Parish suffered catastrophic damage in the wake of Hurricanes
Katrina and Rita, unprecedented post-hurricane recovery planning and execution was required to
rebuild their community. Id. at 2.
The Parish issued criteria governing the new PUP approval process for single-family
rentals in August 2007. Case no. 12-321, Rec. Doc. 1. The criteria included, among other
requirements, payment of a $250 application fee and that there be no more than two PUPs per
five-hundred linear feet of frontage for contiguous single-family dwellings. Id. The St. Bernard
Parish Council rescinded the PUP ordinance on April 5, 2011. Id.
The United States alleges that the Parish destroyed (1) Electronically-stored information
from its file server and the email boxes of Craig Taffaro, David Dysart and James Murray. Rec.
Doc. 190-2 at 3; (2) Ms. Duplessis’ handwritten meeting notes of meetings on permitting issues,
Provident Realty, the Planning Commission, fair housing, and this Court. Id. at 5; and (3) a binder

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of handwritten notes taken by Mr. Thompson, a former Parish employee primarily responsible for
enforcing the PUP Ordinance. Id. at 6.
II. LAW AND ANALYSIS

A party may be entitled to a jury instruction to make an adverse inference that evidence
was unfavorable to the other party if evidence is missing because it has been intentionally
destroyed in bad faith. Whitt v. Stephens Cnty, 529 F.3d 278, 284 (5th Cir. 2008) (citing Russell
v. Univ. of Tex., 234 Fed. App’x 195, 207 (5th Cir. 2007)). A party seeking such a presumption
must show that the adverse party acted in bad faith in order to establish that it is entitled to an
adverse inference. United States v. Wise, 221 F.3d 140, 156 (5th Cir. 2000). In the event that
relevant evidence is intentionally destroyed, or "spoiled," a trial court may exercise its discretion
to impose sanctions on the responsible party. Menges v. Cliffs Drilling Co., 2000 WL 765082, *1
(E.D. La. June 12, 2000) (Vance, J.). Before a court may exclude spoiled evidence or provide
for an adverse inference arising from the intentional destruction of evidence, it must determine
whether bad conduct can be shown based on whether the party having control over the evidence
had an obligation to preserve it at the time it was destroyed. Id. Such a duty arises when a party
has notice that the evidence is relevant to litigation. Once a court concluded that a party was
obliged to preserve the evidence, it must then consider whether the evidence was intentionally
destroyed and what were the likely contents of that evidence. Id. at *2 (internal quotations and
citations omitted).
The United States claims that defendants destroyed the evidence in bad faith because

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they had already received notice of this suit from the Department of Justice when the evidence
was destroyed. Rec. Doc. 190-2 at 9. The Department of Justice notified plaintiffs about this
litigation in May 2011. Id. The United States also argues that the evidence is relevant. Id.
Lastly, the United States explains that the defendants’ bad faith was demonstrated by (1) the
timing of the destruction of the evidence, i.e. that it occurred after the date the Parish was
notified on May 2, 2011 that the Department of Justice was filing this case, and (2) acting
intentionally to destroy the evidence. Id. at 11.
The Parish does not dispute that some of the evidence is missing. Rec. Doc. 210 at 2. It
contends that even the missing evidence was not destroyed in bad faith. Id. Defendants explain
that while e-mail data may have been deleted from the Parish’s computer system, that data is on
a backup tape system that has been produced to the government. Id. at 3. The Parish explains
that the only data irretrievably lost is data for three months beginning in July 2011. However,
the defendants claim this data is not relevant because those three months occurred after the PUP
Ordinance had already been rescinded. Defendants also claims that Craig Taffaro’s email could
not be as significant to the case as the United States claims it is considering that the United
States did not take the deposition of Mr. Taffaro, and quashed the deposition when the Parish set
it. Id. at 4. The defendants also assert that Ms. Duplessis’ notes were removed incidentally along
with an entire file cabinet that was removed by Mr. Taffaro after he lost for re-election as the
Parish President and absconded with 21 boxes of personal and Parish documents. Allegedly,
Ms. Duplessis’ notes were not “specifically sought out, removed and destroyed.” Id. Lastly,

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defendants argue that because the United States only alleges that Mr. Thompson’s binder is
missing, and does not specifically state that it was destroyed, it was not destroyed in bad faith.
Id.
Spoliation sanctions are a drastic measure only suitable in extreme circumstances, and
are not appropriate "when a lesser sanction would sufficiently even the playing field." See
Menges v. Cliffs Drilling Co., 2000 WL 765082 at *2 (citing Vodusek v. Bayliner Marine Corp.,
71 F.3d 148, 156 4th Cir. 1995); One Beacon Insurance Company v. Electrical Power
Engineering, LTD, No. 08-3623, 2009 WL 4505940 (E.D. La. Nov. 24, 2009); Schmid v.
Milwaukee Elec. Tool Corp., 13 F.3d 76, 78 (3d Cir. 1994). In this case, the United States is free
to call the relevant witnesses to demonstrate that arguably relevant evidence was lost and can
certainly argue that it was done in bad faith. The jury can then draw its own conclusions
regarding the missing evidence.
Accordingly,
IT IS ORDERED that the United States’ motion for missing evidence instruction is
DENIED. Rec. Doc. 190.
New Orleans, Louisiana, this 22nd day of April, 2013.

_______________________________
JUDGE HELEN G. BERRIGAN
U.S. DISTRICT COURT

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