Closing The Loop

If you’re one of the hundreds of people arrested without a warrant in Houston every week, and we hope you’re not, you may find yourself detained for more than 48 hours without a probable cause hearing. That extended detention violates both the Fourth Amendment and Texas Law, according to a putative class action filed against the city in 2016.

That case, Hernandez v. City of Houston, won’t be decided on Fourth Amendment grounds, however. Nor will a ruling on local court rules, state law, or existing permanent injunctions.

Rather, the discovery process, and resulting adverse-influence sanctions against the City of Houston, have effectively settled all substantive legal issues. After finding that Houston engaged in spoliation and misrepresentations, U.S. District Judge Kenneth M. Hoyt imposed sanctions that leave nothing but damages unresolved.


Arrestees Allege Unconstitutional Detention

The class action alleges widespread violations to the Fourth Amendment’s requirements for a prompt judicial review following warrantless government seizures. Approximately 80,000 people were arrested in Houston between 2014 and 2015, according to the plaintiff’s complaint, and almost 72,000 of those individuals, or about 90 percent, were arrested without a warrant.

Those arrestees who do not post bail are transferred to Harris County Jail for booking and probable cause hearings. Yet the Harris County Jail cannot always accommodate arrestees, who thus remain in the custody of the City of Houston. City policy and practice, the suit alleges, prohibit probable cause hearings while an individual is in the city’s custody, leaving hundreds of individuals detained for several days, and even up to a full week, before a probable cause determination is made.


A Thorough ESI Agreement, Without Thorough Compliance

The plaintiffs sought discovery into the scope and breadth of Houston’s alleged detention policies. After four months of negotiations, the parties were able to come together on an ESI protocol, entered before the court as a stipulation and order. A thorough agreement, it established the available forms of ESI discovery would encompass, custodians email accounts to be searched, agreed-upon search terms, required metadata, and many more discovery-related details.

In total, the protocol enumerated 59 different search phrases, from “drag* w/50 overcrowd*” to “without w/3 (warrant AND custody),” and 13 identified custodians, including the Houston Chiefs of Police and several assistant chiefs and captains.

An ESI agreement is meant to reduce the risks, complexity, and expense of discovery. A well-crafted agreement can add predictability to the discovery process, as well as mitigate conflicts over search terms and discovery procedures.

But like any agreement, it only works if it's followed. Here, it took only a few weeks for the City of Houston to fall out of compliance with the agreement they had so recently entered into.

“Weeks after the Court entered an ESI Order, the city had still not supplemented the missing metadata from an earlier production to bring this production into compliance with the Court’s Order,” according to Judge Hoyt. A month later, Houston revealed that it hadn’t interviewed any of the agreed-upon custodians, had not collected documents from them, and had “wiped” the hard drives of almost half of those custodians. Oops.


A Bad Idea: Going Rogue With Your Search Terms

Houston didn’t win itself any sympathy from the court when it repeatedly gave erroneous representations about its discovery process. For example, at a January, 2018 meet and confer, Houston said it had collected 72,000 documents for review. When the plaintiffs moved to compel their production a few weeks later, they city produced only 126 documents. None of them were responsive.

Then there were those search terms. During an April hearing, Houston claimed it had collected 2.6 million documents based on the terms of the ESI protocol. A week later, it was ordered to produce all non-privileged, responsive documents in response to six plaintiff requests for production.

The city began by running the provided search terms, slightly narrowed from the ESI protocol, and retrieved nearly 50,000 documents. Then it went off on its own. It asked the Houston Police Department to identify their own search terms to cull the documents, so-called “HPD Terms of Art.”

Those 13 additional search terms narrowed the documents down to less than 10,000, or approximately 80 percent. Only 368 of those documents were produced by the deadline. The city never reviewed the remaining 39,000 documents, nor did it disclose the additional terms until months later.


A Really Bad Idea: Reimaging Custodian Hard Drives While Litigation Is Pending

There was also the issue of spoliation. Six custodian hard drives had been erased after they left the city’s employment, including the chiefs of police and several assistant chiefs. According to Judge Hoyt:

Those hard drives contained ESI that should have been preserved by the City as soon as it anticipated litigation, and definitely after the instant lawsuit was filed. The City acknowledged its “clear obligation” to preserve all responsive documents after the litigation was pending. Yet the City failed to take reasonable steps to preserve the data on the hard drives and intentionally wiped the drives.

Houston claimed to be able to produce the documents that “would be” on the re-imaged hard drives. It further said that no responsive documents were found on those hard drives and that it had spoken with the chiefs to determine that no documents would have been saved to their individual drives.

The court, however, was not convinced. Those conversations, “unsupported by sworn affidavits, were insufficient to establish the absence of responsive documents,” Judge Hoyt found. It further determined that the information held on those drives “could not be restored or replaced through additional discovery.”


The Worst Idea: Deliberate Misrepresentations to the Court

In addition to spoliation and violations of the ESI Order, the court took Houston to task for what it described as a series of mischaracterizations about its discovery process. For example, the city had represented that it would need to review 2.6 million documents, yet a number that ended up being much smaller. Echoing other judges’ concerns about the potential misuse of proportionality objections, Judge Hoyt warned at the time that:

[The City is] creating a problem and then taking advantage of the problem [by] creating a vastness of documents and then saying ‘Ah, proportionality.’ You can’t have it both ways.

Indeed, when the ESI protocol’s search terms narrowed that document corpus down to 78,000, the city only reviewed a small section of those, despite claims that each document would require eyes-on review.

Finally, Houston misrepresented its litigation hold, the court found, as well as obfuscated the status of the destroyed hard drives. Some of these missteps were “deliberate mischaracterizations,” the court determined. Thus, the spoliation of those hard drives was either “intentional or the result of deliberate indifference.”


Discovery Sanctions All but End the Case

Due to this discovery misconduct, the court imposed an adverse inference, establishing all of the plaintiff’s substantive allegations. That includes an inference that the City of Houston had a policy of detaining warrantless arrestees beyond constitutionally allowable period, that the city’s policymakers were aware of that policy, and that those policymakers acted with deliberate indifference to the resulting constitutional violations.

Essentially, case closed. All that’s left is the damages.

“The Court’s order here is clear,” Kirkland & Ellis partner Christine Payne told Bloomberg Law. “If you mess around, you will face the consequences.”

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