Spoliation is the Word of the Day

Submitted by TheLastStraw on August 23rd, 2018 at 9:39 AM

Word of the day: spoliation (n) - the action of ruining or destroying something.

When you intentionally destroy evidence relevant to a legal proceeding, you are spoliating evidence. In general, if a court finds that you spoliated evidence, it will sanction you with a "negative inference." That is to say that the court or jury will be allowed to assume that whatever was in that evidence, was unfavorable to you.

We will never know what was in the text messages that Urban Meyer deleted. Ohio State should have done the right thing and terminated Meyer for knowingly employing and retaining a coach who was a known abuser and an all around bad guy. If they had, they would have held a strong hand going into any wrongful termination suit: spoliation. The judge and the jury would likely have been able to infer that Urban Meyer had deleted text messages because he knew that they contained facts which would have been unfavorable to him.

Comments

Blau

August 23rd, 2018 at 11:11 AM ^

It certainly depends on the institution but if this was anyone but Urban Meyer or another high profile coach (Saban, Dabo, maybe Harbaugh) under the exact same circumstances, there's no fucking way the coach is retained. Nobody will ever convince me that if Meyer had a career record around .500 that OSU welcomes him back.

No benefit of the doubt, no investigation and no suspension. That dude would be fired on the fucking spot, even by the inept OSU officials.

No. Fucking. Way.

Mr Miggle

August 23rd, 2018 at 11:18 AM ^

If Meyer had a record around .500 he would have been fired within two years. OSU holds football coaches to very high standards for winning, no real standards for behavior. Woody Hayes was only fired after his results had slipped.

You're right, it does depend on the institution.  I'd like to think that OSU is in a relatively small minority, but they're certainly not alone.

 

GoWings2008

August 23rd, 2018 at 9:44 AM ^

Spoilation: the act of an osu press conference to ruin the start of the college football season and the start of non-OT season on MGoBlog. 

 

Your word is spoilation.

Can you please use it in a sentence?

Urban Meyer's spoilation of Michigan's enjoyment of his possible firing caused great angst.

S-P-O-I-L-A-T-I-O-N. Spoilation.

Don

August 23rd, 2018 at 11:13 AM ^

I'm not an attorney and had never heard of the word "spoliation." My first thought was haha, he spelled "spoilation" wrong, but the joke's on me.

https://en.wikipedia.org/wiki/Spoliation_of_evidence

Etymology:

spoliation (n.)

"robbery, plunder," c. 1400, from Latin spoliationem (nominative spoliatio) "a robbing, plundering, pillaging," noun of action from past participle stem of spoliare "to plunder, rob" (see spoil (v.)

 

 

LJ

August 23rd, 2018 at 9:44 AM ^

This isn't a legal proceeding.  There is no judge or jury.  Normally, at the initiation of a case, parties will send out preservation orders requiring potential witnesses to preserve evidence that might be destroyed in the ordinary course of business.  Not going to happen in something like this.

Urban is a liar, but there was no legal requirement, as far as I can tell, that he maintain the information on his phone.  Obviously it looks bad, but it's OSU's call in the end.  I think we all know where their priorities lie.

TheLastStraw

August 23rd, 2018 at 9:48 AM ^

In most states, your duty to preserve evidence begins when litigation is reasonably anticipated. If he believed that his job was potentially at risk, a duty to preserve evidence could have been triggered.

Clearly, I'm not saying that there will be litigation. They came to a decision that prevented litigation. I'm saying that had OSU done the right thing, they would have had a strong case in the wrongful termination suit that would have followed.

Firstbase

August 23rd, 2018 at 9:51 AM ^

As we've seen repeatedly, universities are their own little fiefdoms with their own set of guidelines and rules that they choose to enforce only if and when it serves their purposes. Sadly, even local and federal authorities often look the other way to placate these people and protect the institutions. 

Politics at its worst. 

LJ

August 23rd, 2018 at 9:58 AM ^

I’m not sure what other authorities are supposed to do in this situation.  I don’t think Meyer violated any laws.  It really comes down to whether OSU wants to require a certain level of ethics and oversight in their AD, and it’s been clear since the Tressel invesitgation that they don’t prioritize that over on-field performance.  Not much that anyone else can do about that, other than point it out and scrutinize it. 

You Only Live Twice

August 23rd, 2018 at 11:20 AM ^

He is in clear violation of his contract, both the written language and the purported level of ethics the university says it requires of its highly paid coaches.  Urban didn't need to violate the law to be fired.  The language in his contract (USA today said that language was just added in April 2018, if memory serves) gave OSU room to fire for cause and avoid the buyout.  However, they would certainly have been in for the expense and hassle of protracted litigation.  As a Michigan fan I would not have minded them having this off-field distraction; but of course, no one at OSU wanted that.  So they worked out a solution that enabled them to continue with business as usual, although arrogant Meyer had to swallow his pride (and manage to look even worse after the hearings). The suspensions are not something Meyer can litigate, and it's an admission by the university that he did something in violation of his contract.  What they will have to live with is reputation damage that isn't going to go away.  

Clarence Beeks

August 23rd, 2018 at 11:48 AM ^

" I’m not sure what other authorities are supposed to do in this situation.  I don’t think Meyer violated any laws."

Perhaps a "not so fast my friend" moment, in that he is a public employee and even more so if the university (thus the state) paid for his phone (which almost surely they did/do).

MKen

August 23rd, 2018 at 11:37 AM ^

But it would have turned into one if they did the right thing and his ‘spoliation’ wouldn’t have made him look too good.  Bottom line is even if some wanted him gone they weren’t willing to deal with his counter actions.

TheLastStraw

August 23rd, 2018 at 9:45 AM ^

Just to add a little more flavor, when a litigator discovers that there is possible spoliation in a lawsuit, it truly changes the direction of the case. If it was a 50-50 case before, you now feel that you are in the driver's seat. Your settlement demand changes drastically and your willingness to go to trial increases exponentially.

jamesjosephharbaugh

August 23rd, 2018 at 10:25 AM ^

You distilled this whole thing down to the most important sentence. 

I’m frustrated today - not because of football reasons, but because what we witnessed was such a farce. 20+ powerful people sitting around figuring out how to protect themselves, protect urban, and willing to say anything to justify it. 

The hard part to witness is you know you and me wouldn’t get the benefit of a doubt if we had an employer investigating us. If we deleted text messages on a company phone, it’s used against us, but not against Urban. If the hr dept and my manager can’t agree on what to do, they don’t call me in to get my opinion on it. If my employer was brought into such awful media reports because of someone I kept on staff after several incidents, I’m gone without question.

I mean, good for urban for making himself such a sought after employee that he gets such benefits. Free market after all. But I think that’s the part that grates at us deep down - rich powerful people get away with stuff that common folks don’t. 

M-Dog

August 23rd, 2018 at 10:56 AM ^

Always been true, always will be true.

In academia, in business, in government, in media, in religion, in . . . everything.

The issue is concentration of unaccountable power.

Beware of people that say the solution is to just shift power from one of these groups to another one of these groups.  From business to government, or from government to business, or so on.

If there are no checks and balances on concentration of unaccountable power, you've solved nothing. 

Section 1.8

August 23rd, 2018 at 9:47 AM ^

I deal with spoliation issues in some very serious cases.  One problem with Meyer is that he was not formally notified of the need to preserve evidence when he did whatever he did with his phone.  We routinely do "preservation letters" in litigation and pre-litigation in order to prevent this sort of thing.

I agree; of everything I have learned from the investigative report, and the few public records, and even the dubious things I have learned from the media, this issue of spoliation really stuck out to me.

And you are not wrong in general about the "negative inference" jury instruction that can be issued if a party is found to have destroyed electronically stored information (ESI in the trade).

TheLastStraw

August 23rd, 2018 at 9:51 AM ^

Absolutely, I've litigated spoliation issues several times in the last few years. Certainly there was no preservation letter issued, but the relevant question is whether he could have reasonably anticipated litigation, right? 

I think another interesting twist is whether the text messages were deleted on an OSU provided phone. If they were, could that constitute the destruction of public records?

charblue.

August 23rd, 2018 at 2:58 PM ^

Forget spoliation, Meyer lied, period, about his actions that initiated the university's action against him. He lied to the media in Chicago about what he knew and when he knew it regarding the firing of Smith. And then he lied in his own statement days later claiming whatever he didn't do accurately, he at least followed contractual protocols in vaguely reporting something he claimed no knowledge of days earlier with specific knowledge days later.

And yet, during the mea culpa press conference Wednesday night, Gene Smith discloses to the world at large, that it wasn't Meyer who responded to a police report of an alleged abuse event at the Smith home in 2015, it was Smith who discovered the information and apparently contacted the assistant coach on the road, then notified the head coach of the situation. This is one fucked up set of circumstances in ass-covering storylines.

Here's how fucked up you know that all-day meeting was between the principlals: Nobody at the public meeting was claiming high ground on responsibility except when it where it legally mattered in covering their own legal ass.

Gene Smith made a point of noting that he discovered before Meyer about the alleged incident in 2015 about Zach Smith. And the dumb ass local beat writers who have been lied to repeatedly never challenged a single response. I'm sorry, the people of Columbus and the Buckeye fan base deserve the wretched leadership that serves their interests.

My takeaway from that press conference was that what Meyer didn't know about supervising his own assistant, he didn't want to know, either because of selective memory or because while he knew, others covered up the record to make sure he couldn't be held accountable.

It's amazing that Ohio State was willing to put out a complete public record of the ZS employment experience at their school, and anyone representing that university would claim that he was properly supervised or that in the failure to properly supervise his activities, no violations of any kind resulted.

mgobleu

August 23rd, 2018 at 9:52 AM ^

If it was a legal case that might matter but it's not. This is all self-policing on the part of the University so they get to make their own rules. 

I've said it before; either Meyer didn't say anything and not enough was done to protect a woman from an abuser or, he did say something but their system sucks and not enough was done to protect a woman from an abuser.

It looks by their reaction that it's a combination of both, but they're ok with it if the football team is good. 

Oh, and they're double ok with it if no one gets caught...

 

Section 1.8

August 23rd, 2018 at 10:13 AM ^

Are all of these wild claims about Zach Smith being a major "abuser" still surviving the investigative report?

I'm sorry, and I don't mean to pick on you in particular but I rather like this thread as a somewhat serious legal thread, and I'm really tired of these hysterical claims about Zach Smith being a wife-beater.

There are the things that Brett McMurphy has reported, which all transparently come to him from Courtney Smith.  And until Zach Smith was fired, it seems to me that Courtney Smith had a significant interest in Zach's keeping his $340k job + benefits; not losing that job.

Courtney Smith regularly availed herself of Powell/Delaware Co. police.  She had a lawyer.  She had friends and a support network.  She's living in a pretty sweet condo north of Dublin, with no job that I have been made aware of.

If the notion is that an earlier firing of Zach Smith by Ohio State is what Courtney Smith wanted, or if it is what would have been best for her family, I haven't seen such evidence.  It may well be that Zach's termination would have been best for Ohio State, as a matter of public relations and institutional integrity.  But it has nothing, as far as I can see, to do with Courtney Smith's victimhood status. 

You say that there was a problem that "not enough was done to protect a woman from an abuser."  So what was Ohio State supposed to do, to protect this woman?  If you think that it is a simple answer to say that Ohio State should have fired Zach Smith based on Courtney Smith's out-of-court allegations, I suppose it is your perfect right to hold such an opinion but I find it to be a very troubling statement with regard to Zach Smith's due process rights.

BlueTimesTwo

August 23rd, 2018 at 11:10 AM ^

Yeah, he probably deleted his text messages because there was nothing interesting in them.  He just wanted to save OSU the time and expense of having to review totally inconsequential material.  Yeah, that’s it.  Not an admission of guilt (about this or other things relevant to his job) at all.

*eyeroll.gif*

BlueTimesTwo

August 23rd, 2018 at 2:07 PM ^

It seems there is much that OSU could have done at the time, but didn’t.  And even now, likely with more facts in hand than even we know, they did the absolute wrong thing.  The allegations of abuse may be exaggerated and they may not.  At this point it doesn’t matter, because Meyer directly obstructed the investigation, which it seems is preferred by OSU so they don’t have to answer for his actions.  They had a chance to shine a light on things and let the chips fall where they may, and they opted for obstruction and obfuscation.  If you destroy the evidence, I am damn well going to assume the worst, and if and when something else bad happens it is 100% on Meyer and OSU and Drake and the BoT, because they showed their colors and protected the alleged perpetrators rather than even try to get some answers.  They don’t know the truth because they don’t want to know.  That’s how PSU and MSU type things are allowed to happen.

mgobleu

August 23rd, 2018 at 11:30 AM ^

Welp, I guess you're right. Maybe it's a bit of a leap to "assume" That Courtney Smith is telling the truth about getting the shit beat out of her by a guy who is a well known and documented violent drunk shitbag dildo enthusiast. I guess the messaging I'm receiving from all this is that if I see any reason to believe that my employee is beating his wife, I should take that evidence with a LARGE grain of salt if I think that she's also a bit of an asshat and just go ¯\_(ツ)_/¯

Section 1.8

August 23rd, 2018 at 12:56 PM ^

You know, you could pretty easily make a cogent argument against Zach Smith as an OSU assistant football coach and as a representative of the University if you were more careful about it.   But you (and many, many others) write stuff like, "Courtney Smith...[was] getting the shit beat out of her."

When did THAT happen?  From the written records, and including Courtney's own uncorroborated allegations we know of:

  • A 2009 incident, in which Courtney did not press charges and there was no criminal or civil action;
  • Nine separate reports from the Powell Police Department, mostly related to child custody disputes, at least one relating to Courtney's lone vehicular stop, and one (in October of 2015) where she alleged some level of domestic abuse, and wherein her most serious claims have been made in recent interviews and were not reflected in police reports at the time, but none of them reflecting anyone "getting the shit beat out of" them;
  • The October 25, 2015 arrest of Zach Smith; for which the records clearly show that Courtney Smith had made calls to police before and after the incident, and none of them reflect anybody "getting the shit beat out of" them;
  • A traffic stop of Courtney Smith for speeding in 2016, where she appeared to be crying and stated that she was having domestic issues with her (by then) ex-husband;
  • An incident in 2017 where Courtney Smith claimed that neighbors observed Zach Smith peering into her windows at home;
  • A pair of undated photos showing what appears to be Courtney Smith's reddened arm and a bleeding hand.  Zach Smith explains that the bleeding hand photo occurred when Courtney attempted to make contact with him, and cut her hand on a can of smokeless tobacco.  This may well be a disputed claim of potential seriousness; what did Courtney do about it whenever it happened?  Are the photos part of her divorce file?  Has she ever been cross-examined about it?
  • And there is the July, 2018 incident.  For which Zach has been charged with misdemeanor criminal trespass and not, uh, "beating the shit out of" his ex-wife.  And the dispute there is, I think, made fairly clear by Zach's attorney.  The dispute seems to be that Zach was dropping their kids off at their mother's condo, but that she (and Powell Police) claim that there was a "police order" against Zach coming onto that property.  Zach's lawyer says that there is a COURT order for shared custody and that Zach had the right and even the responsibility to deliver the kids to their mother's home.  There may be two -- or more -- sides to that story, and I am looking forward to hearing them all next month in open court.  With lawyers, and a judge, and a court reporter.
  • Courtney has recently obtained a personal protection order against Zach; such orders are generally granted on an ex parte basis without cross-examination of all involved parties.  I think that is what happened in this case.  And the restrictive language is almost always the court's boilerplate.  We do it this way because we want to maximize access to such orders on the part of persons who may need them.  And the balance of legal interests goes against the accused.  With the notion that the court can conduct a more detailed hearing later, upon application by the accused.  

And in all of that, there is nothing like Zach "beating the shit out of" anybody.

Section 1.8

August 23rd, 2018 at 1:58 PM ^

He was fired, as I understand it, because he hadn't kept Meyer updated and informed about something that Meyer knew was an issue.  Because he (Zach) had been on thin ice for a long time, for reasons having nothing to do with an allegation that Zach "beat the shit out of his wife."

One of the few unquestioned events in this whole saga -- having been confirmed by both participants in the meeting -- is that Meyer angrily said to Zach, "If you hit her, you're fired immediately."

 

UMForLife

August 23rd, 2018 at 2:24 PM ^

Meyer could have erred on the side of caution and looked more into Courtney's claims. However, he erred on the side of caution and supported his friend and employee. Simple as that. Just for that he should have been canned. I am not even sure if we need to prove anything at this point or we cannot. Because the people in power made sure that Don't happen by letting the liar delete his texts.

FauxMo

August 23rd, 2018 at 10:07 AM ^

Urban should have been fired. But I’m ok with him being there, as this will hang over his and their head forever. This story will never go away, not even in Ohio. FYI, morning sports talk radio is fun today