U-46 still collecting evidence in racial bias suit

Elgin Area School District U-46 officials say they have turned over nearly half a million documents and 37 gigabytes of evidence to the lawyers of the families accusing the district of racial bias.

But with the federal lawsuit's deadline for the exchange of evidence less than two weeks away, a district employee has questioned whether the district can turn over all relevant electronic evidence -- and whether all relevant evidence still exists.

The lawyer for the families suing the district has asked for electronic evidence dating back to 2002.

If some of that evidence no longer exists, Carol Ashley of the Futterman and Howard law firm said, it could become a major issue in the case.

Attorneys for the district strongly deny they have allowed any pertinent evidence to be destroyed.

"They have not in any way demonstrated there is data missing, or relevant information that can't be found from any other sources," said Mike Hernandez of the Franczek and Sullivan law firm, the district's outside council.

Derek Baxter, whom the district placed on unpaid leave in June, allegedly for sending instant messages to colleagues that undermined the district, has been the district employee in charge of backing up the U-46 e-mail system since fall 2005.

Baxter has claimed he was targeted for disciplinary action because of knowledge he has about the district's e-mail system, knowledge he says is relevant to the lawsuit.

According to Baxter, the district lost a substantial amount of data in the fall of 2005 when the hard drive of the e-mail system failed.

The technology staff was able to recover most of the e-mails from administrative accounts, but not from the elementary school accounts, Baxter said.

The hardware failure revealed that information services employees had for months neglected to backup the elementary school e-mails, and made clear there was no system in place to ensure backups were occurring, Baxter said.

And historically, he said, the district has saved just a small portion of the e-mails sent through its network.

Though the district generally backed up e-mail daily, most of the backup tapes were eventually written over as a cost-saving measure.

District protocol was to preserve just one backup tape per month, Baxter said.

That backup tape would contain all of the e-mails in U-46 staff accounts on the particular day the backup occurred, Baxter said.

If an employee deleted an e-mail after the saved backup from the previous month, and before the saved backup from the following month, that e-mail no longer exists, Baxter said.

As a result, during a five-year period, the period when most of the key issues in the lawsuit occurred, including the decision to redraw the district's attendance boundaries and close district schools, the district systematically saved just one day of e-mails per month, Baxter said.

Ashley, the lawyer for the families, said Baxter's revelations support her contention that the district has a history of spotty e-mail preservation.

She said district officials had a duty to begin saving evidence -- including e-mails -- when they became aware of the threat of a lawsuit in July 2004.

Their failure to do so, according to Ashley, could constitute "spoliation of evidence," a serious charge of wrongdoing.

Attorneys for U-46 strongly deny they had any duty to begin saving all electronic data in 2004 -- in fact, they argue they weren't required to save all electronic information until December 2006.

That month, a federal rule change made clear that the threat of litigation confers an immediate duty to start preserving, and creating procedures for sharing, electronic evidence.

In fact, U-46 was well ahead of the curve, Hernandez said, when they put a system in place in January 2006 that prevented employees from deleting e-mails.

As part of that system, Baxter said, he was told in February 2006 for the first time to begin saving all e-mail backup tapes, and stop writing over them.

Before the federal rule change, experts say there was some question about the lengths defendants had to go to preserve electronic evidence.

"Best practices would always have been to do something along the lines of what the federal rules now require," said attorney Mike Braun, a litigation attorney at the Chicago law firm Schuyler, Roche and Zwirner. "But clearly now the rules have told us what is absolutely required of us."

Hernandez said the district has preserved, and plans to turn over, all relevant documents.

Ashley, Hernandez said, has not proved any documents she thinks have been deleted are relevant, a key to arguing spoliation of evidence.

Ashley, on the other hand, says she doesn't know what's been deleted, and therefore can't say if it's relevant.

Hernandez also claims the lawsuit has been revised so much since its filing in February 2005, the district's responsibility to preserve evidence didn't begin until the latest revision in 2006.

And, Hernandez emphasized, the district has produced boxes upon boxes of paper evidence, despite the fact the judge has yet to rule on whether to make the lawsuit class action.

"This is a major undertaking we're doing," Hernandez said. "And I think the public needs to know that all this is out there, and we have preserved all this."