Plaintiffs in a Unite the Right lawsuit have filed a motion to sanction the National Socialist Movement, a once-significant neo-Nazi group, for potentially destroying relevant evidence.
The National Socialist Movement is among various neo-Nazi and white supremacist groups and individual defendants named in Sines v. Kessler. The suit was filed in the wake of the Aug. 12, 2017, rally on behalf of area residents. The lawsuit alleges a conspiracy by rally organizers and participants to commit racist violence in Charlottesville.
Though filed just a few months after the rally, a trial date has continued to be pushed off, due in large part to a lack of cooperation from the defendants and, more recently, safety concerns prompted by the COVID-19 pandemic.
Two defendants — Elliott Kline and Robert “Azzmador” Ray — previously were held in civil contempt of court and sanctioned for failing to turn over responsive documents. Though Kline managed to purge himself of contempt, Ray currently is being sought by court marshals and is considered a fugitive in Albemarle County for failing to turn himself in on a criminal charge related to a torch rally at the University of Virginia on the eve of the rally.
On Oct 15, counsel for the plaintiffs filed a motion to sanction the National Socialist Movement for similar reasons as Kline and Ray, citing a failure to turn over documents and allegedly admitting to destroying potentially responsive documents.
According to the motion, NSM’s current leader, Burt Colucci, has admitted to destroying potentially responsive documents on multiple occasions, and its commander, William ReBrook, has “repeatedly offered unjustified excuses for NSM’s violations of its discovery obligations.”
“NSM is plainly not acting in good faith and instead is actively looking for opportunities to deny plaintiffs documents to which they are entitled,” the motion reads. “This has been NSM’s strategy throughout this litigation, and it has not wavered.”
Counsel for the plaintiffs is requesting that the court instruct the jury that NSM “chose to intentionally withhold its documents and that the jury may draw adverse inferences from that fact, including that NSM chose to withhold such documents because it was aware that such documents contained evidence that NSM conspired to plan racially motivated violence at Unite the Right.”
Previous requests from the plaintiffs have been met with opposition from other defendants who argue that such inferences could unfairly prejudice the jury against them.
In June, the court granted a motion to compel that was filed by the plaintiffs against Colucci, directing the NSM commander to complete a form identifying all potentially relevant social media accounts and electronic devices by June 29. Though Colucci responded, according to the motion, the documents were largely unresponsive and the third-party vendor used for the trial was unable to access approximately 50 social media and email accounts Colucci disclosed.
Additionally, NSM’s attorney failed to provide a list of all potentially relevant NSM custodians and credentials by July 3, as directed by the court.
On Aug. 11, Colucci sat for another deposition and admitted that not only did he change passwords for the responsive accounts in July, but also had deleted two email addresses he had used for responsive communications, according to the plaintiffs’ motion.
“In Colucci’s words, there was ‘no reason for those accounts to exist anymore’ once he had provided the (incorrect) credentials to the Vendor,” the motion reads. “And when asked, ‘Did you do anything to save the contents of the … email addresses before you deleted them?’ Colucci unequivocally replied, ‘Absolutely not.’”
“NSM has tried literally every trick in the book to escape accountability for the violence they brought to Charlottesville,” Amy Spitalnick, executive director of Integrity First for America, said in a news release. “We won’t let them.”
The case has a hearing set for Oct. 30 to discuss a motion for summary judgment filed by defendants Michael Hill, Michael Tubbs and League of the South.
That motion largely argues that James Alex Fields Jr., who was convicted in a deadly car attack on the day of the rally, acted alone and that there is insufficient evidence that he conspired with any of the defendants to commit racial violence. It also argues that the Aug. 11 torch march was planned and executed without the involvement of Hill, Tubbs or League of the South.
A hearing on the motion to sanction NSM has not been scheduled.
The lawsuit is currently set for a four-week jury trial beginning in August, but court officials have cautioned that this date is tentative.