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Lawyers ask for Fields to be sanctioned for allegedly destroying evidence

Plaintiffs in a long-running civil suit are claiming that James Alex Fields Jr. should be sanctioned for allegedly destroying documents after the 2017 Unite the Right rally.

In the last month, counsel for plaintiffs in the Sines v. Kessler lawsuit filed motions to compel documents, devices and online credentials from Fields, as well as Jeff Schoep, who formerly led the National Socialist Movement. This motion follows several other motions to compel that targeted the National Socialist Movement and Robert “Azzmador” Ray, alleging the defendants also have ignored their requirements.

All four are among the more than a dozen defendants who organized or attended the Aug. 12, 2017, Unite the Right rally who are named in the suit, filed on behalf of a number of Charlottesville-area residents by Integrity First for America.

In recent filings, counsel for Fields has argued that he should not be sanctioned and has provided everything responsive that he can. Because Fields has been imprisoned since he drove a car into a crowd of counter-protesters at the rally, murdering Heather Heyer, he has not had access to his digital accounts, the filing argues.

“Unlike most other defendants, Fields immediately became unable to access any electronic device or log in to his accounts,” the filing reads. “This increases the likelihood that his recollection of such accounts would fade.”

The filing does admit that Fields destroyed “some Christmas cards” that may have been responsive, but argues that the defendant has otherwise complied.

In a fiery response, counsel for the plaintiffs describes Fields’ argument as “half-hearted” and places much of the blame on his counsel, who they argue should have gotten credentials for Fields’ digital accounts more than two years ago.

“Plaintiffs obviously understand Fields cannot produce what he does not have. The problem with Fields’s discovery conduct, however, is that he refuses to provide discovery he does have,” the plaintiff’s’ response reads. “The fact that, because so much time has passed, he allegedly has forgotten them is precisely why sanctions are appropriate. Fields’s delay has caused Plaintiffs not to have access to his documents.”

Counsel for plaintiffs further argue that Fields should be sanctioned for destroying correspondence with fellow defendant Vanguard America. Despite arguments that the documents were destroyed after the rally and could therefore not be “planning documents,’ the plaintiffs’ counsel argues that this is an “improperly restrictive view” of relevance.

“Documents can be responsive and relevant even if they did not pre-date the Rally,” the response to Fields’ reads. “For example, documents created after the Rally can still contain information about events before or during the Rally. And, documents created after the Rally can still serve as relevant evidence — for example, by showing an association between Defendants who deny knowing each other.”

Fields is not the only defendant arguing against motions to compel. According to a recent response filed by counsel for Schoep, the defendant has complied with all necessary discovery requests, a claim the plaintiffs’ counsel ardently denies.

“This is yet another example of Plaintiffs’ desire to use discovery as an opportunity for gamesmanship rather than obtaining relevant and discoverable information to support this case,” the filing reads. “The motion was prepared in this manner to waste the time of Defendant Schoep and his counsel as part of Plaintiffs’ on-going efforts to harass Mr. Schoep.”

The filing again argues that Schoep turned over his cellphone, which he claims had been dropped in the toilet and rendered useless. Other documents related to Schoep’s time as “commander” of the NSM similarly have been turned over or are not responsive, his counsel argues.

In their response to Schoep, counsel for the plaintiffs argues that the defendant is in possession of another responsive device — his new cellphone — which he has repeatedly refused to turn over.

A judge has not issued a ruling on any of the motions to compel or a recently filed document requesting the recusal of two law clerks who were classmates of a plaintiff.

Submitted by defendants Jason Kessler, a key organizer of the deadly rally, as well as participants Matt Parrott and Nathan Damigo, the request argues that two law clerks are friends with one of the plaintiffs.

As evidence of this alleged friendship, the defendants present a group photo of the plaintiff and the clerks.

Additionally, the defendants argue that one of the clerks is part of the same “social group for dog enthusiasts” as the plaintiff, and, because the group is not very large, the membership “implies a sufficient level of personal friendship outside of law school.

A judge has not yet responded to any of the recent motions.

It remains unclear what effect, if any, civil continuances caused by the coronavirus pandemic will have on the case’s October jury trial.

Source: www.dailyprogress.com

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