American Tax Reform – by Alexander Hendrie
The IRS erased a hard drive belonging to a former top employee involved in the agency’s controversial, taxpayer-funded hiring of elite trial law firm Quinn Emanuel.
Although there was a court preservation order on all documents related to the IRS hiring of the outside firm, the hard drive was erased anyway. The order was borne of a Freedom of Information Act (FOIA) request submitted by Microsoft.
Even though the white shoe law firm has zero experience handling sensitive tax data, taxpayers have been footing bills of over $1,000 per hour for its services.
As reported by legal news service Law360:
The IRS informed the U.S. Department of Justice last month that it did not wipe the hard drive until April of last year, after the hold was in place, according to a Friday filing by the U.S. Department of Justice in a Washington federal court. The hard drive belonged to Samuel Maruca, former director of transfer pricing operations at the IRS Large Business and International Division.
IRS attorneys “have continued to study whether or how the foregoing might implicate the Service’s obligation to conduct a reasonable search in response to Microsoft’s FOIA requests,” the statement said.
The deleted hard drive belonged to the agency’s former director of transfer pricing operations at the IRS Large Business and International Division, likely a key employee involved in the controversy. It is not known if there is any way to recover documents belonging to the employee.
Despite its complete inexperience handling audits or taxpayer data, Quinn Emanuel was hired under an initial $2.2 million contract.
This unusual decision prompted a probe by Finance Committee Chairman Orrin Hatch (R-Utah), based on concerns that the decision to hire outside contractors was expensive and entirely unnecessary.
As Sen. Hatch pointed out in his letter to the IRS, the agency already has access to around 40,000 employees responsible for enforcement. The IRS can also turn to the office of Chief Counsel or a Department of Justice attorney, both of which have the expertise to conduct this kind of work, without risking sensitive information.
In fact, this hiring decision was described as “troubling” by a federal judge.
This is not the first time the agency has failed to preserve key information. The IRS also “accidentally” destroyed the hard drive belonging to Lois Lerner during investigations into the targeting of conservative groups. As many as 24,000 emails were lost forever when 422 backup tapes were wiped clean despite an agency-wide preservation order and congressional subpoena.
In the Lerner case, the IRS failed to take simple steps to ensure compliance with the order, according to a report by the House Oversight Committee.
Now, it appears that important information has once again disappeared because of IRS corruption, incompetence, or both.
Read more: http://www.atr.org/irs-erases-hard-drive-despite-court-order#ixzz3xp2uFMaX
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“This is not the first time the agency has failed to preserve key information.”
Say it ain’t so!
“… the agency already has access to around 40,000 employees responsible for enforcement.”
40,000? JUST FOR ‘ENFORCEMENT’ (EXTORTION!)???
What does THAT tell you?
After that Dog and Pony show over Lois Lerner’s destruction of a HD one would think that they would have ‘learned their lesson’ by now as the rumor is that there are at least 6 back-ups on all Government computers; but then, what happen to her ??? absolutely ‘nothing’ as she was TO BIG TO JAIL (just like Hillary the Hut) and I truly believe that they need to have evidence of 3 Felonies against one before they can be considered for the Presidency (so they have sufficient evidence for Blackmail)!
Spoliation of evidence. Every presumption is made against a wrongdoer; All things are presumed against a despoiler or wrongdoer {Omnia præsumuntur contra spoliatorem}; The thing speaks for itself {Res ipsa loquitur};
18 U.S.C. § 2071 (Concealment, removal, or mutilation generally) (a) Whoever willfully and unlawfully conceals, removes, mutilates, obliterates, or destroys, or attempts to do so, or, with intent to do so takes and carries away any record, proceeding, map, book, paper, document, or other thing, filed or deposited with any clerk or officer of any court of the United States, or in any public office, or with any judicial or public officer of the United States, shall be fined under this title or imprisoned not more than three years, or both. (b) Whoever, having the custody of any such record, proceeding, map, book, document, paper, or other thing, willfully and unlawfully conceals, removes, mutilates, obliterates, falsifies, or destroys the same, shall be fined under this title or imprisoned not more than three years, or both; and shall forfeit his office and be disqualified from holding any office under the United States. As used in this subsection, the term “office” does not include the office held by any person as a retired officer of the Armed Forces of the United States. https://www.law.cornell.edu/uscode/text/18/2071
ORS 40.135 Rule 311 (Presumptions) (1) (The following are presumptions: (c) Evidence willfully suppressed would be adverse to the party suppressing it.); http://landru.leg.state.or.us/ors/home.htm
U.S. v. Sivilla, No. 11-50484 (9th Cir. 05/07/2013) (Judgment of conviction on drug charges is: 1) affirmed in part, as to the district court’s denial of dismissal where it found that there was no constitutional violation; and 2) reversed and remanded for a new trial with a remedial jury instruction, because when the government destroys evidence before trial, a showing of bad faith is required for dismissal but is not required for a remedial adverse-inference jury instruction.); http://cdn.ca9.uscourts.gov/datastore/opinions/2013/05/07/11-50484.pdf
Kearney v. Foley & Lardner, LLP, No. 07-55566 (9th Cir. 05/12/2009) (Spoliation of evidence is the “destruction or significant alteration of evidence, or the failure to preserve property for another’s use as evidence, in pending or future litigation.” Hernandez v. Garcetti, 68 Cal. App. 4th 675, 680 (Ct. App. 1998). http://caselaw.lp.findlaw.com/data2/circs/9th/0755566p.pdf
Fletcher v. Dorchester Mutual Insurance Company, 437 Mass. 544 (2002), and Keene v. Brigham and Women’s Hospital, 439 Mass. 223 (2003) (Both cases emphasize that sanctions (in extreme cases, up to and including default or dismissal) may be appropriate for the spoliation of evidence, whether negligent or intentional, even where the loss of potential evidence occurs before an action has been commenced, if a litigant or its expert knows or reasonably should know that the evidence might be relevant to a possible action.); http://www.mass.gov/obcbbo/eve.htm
Given the language of the Fletcher and Keene cases identifying a party’s duty to preserve evidence or potential evidence, it might be unlawful to destroy or recommend to a client that a document or other item be destroyed even if litigation is anticipated but not yet filed. At least one commentator suggests that Rule 3.4(a) mandates preservation of documents once a lawsuit is filed even if destruction is not a crime (and that to advise destruction is “unlawful”)—and, further, that the rule “requires a lawyer who is consulted about existing evidence to consider the course of lawsuits that have not yet been, and may never be, filed.” See 2 Hazard and Hodes, The Law of Lawyering § 30.4 (3rd ed. 2003). http://www.mass.gov/obcbbo/eve.htm
Trigon Ins. Co. v. U.S., 204 F.R.D. 277 (E.D.Va., 2001) (Spoliation has been defined as the willful destruction of evidence or the failure to preserve potential evidence for another’s use in pending or future litigation.); http://www.mass.gov/obcbbo/eve.htm
Linnen v. A.H. Robins Co., Inc., 10 Mass.L.Rptr. 189 (Mass. Super. Ct. 1999) (The Court held that “a discovery request aimed at the production of records retained in some electronic form is no different, in principle, from a request for documents contained in an office file cabinet. . . . [T]here is nothing about the technological aspects involved which renders documents stored in an electronic media ‘undiscoverable’.” Id. at 191.); http://www.evestigate.com/spoilation%20case%20law.htm
U.S. v. Lundwall, 1 F.Supp.2d 249 (S.D.N.Y., 1998) (where corporate officials allegedly destroyed documents sought during discovery in a class action employment discrimination case, a federal district court denied a motion to dismiss indictments, holding that the officials could be prosecuted criminally under the obstruction of justice statute for the spoliation in the civil suit.); http://www.mass.gov/obcbbo/eve.htm
U.S. v. Fineman, 434 F. Supp 197 (E.D.Pa 1977) (In applying the obstruction of justice statute to issues of destruction of documents, federal courts generally have not required that a subpoena have issued. Rather, it is sufficient for an obstruction conviction that the defendant knew that a grand jury was investigating possible violations of federal law and intentionally caused destruction of the incriminating document.); http://www.mass.gov/obcbbo/eve.htm
THE EVE OF DESTRUCTION: Lawyers, Clients and Spoliation of Evidence: (The federal crime of obstruction of justice is defined by 18 U.S.C. § 1503 to include conduct that, among other things, corruptly endeavors to obstruct or impede the due administration of justice. To sustain its burden of proof, the government must prove that there was pending judicial proceeding, that the defendant knew this proceeding was pending, and that the defendant then corruptly endeavored to influence, obstruct, or impede the due administration of justice. In addition, the Sarbanes-Oxley Act of 2002 has expanded the federal law of obstruction by adding new sections to 18 U.S.C. § 1512 and enacting a new statute, 18 U.S.C. § 1519, creating additional crimes relating to alteration, destruction, mutilation or concealment of records, documents, or objects. Section 1512(c) requires acting corruptly with intent to impair the item’s integrity or availability for use in “official proceedings,” defined by 18 U.S.C. 1515 to include proceedings before federal courts, agencies, Congress, and regulatory proceedings involving the insurance business. This statute is particularly striking in providing, in subsection (f), that an official proceeding need not be pending or about to be instituted at the time of the offense and that the document need not be admissible in evidence or free of a claim of privilege. Section 1519 relates to any matter within the jurisdiction of a federal department or agency or any case filed under title 11 (bankruptcy) and requires intent to impede, obstruct or influence the investigation or administration of such a matter or case. It also includes actions taken “in relation to or contemplation of” a matter or case. In a bar discipline proceeding alleging a violation of Rule 3.4(a), one key issue would be whether the documents were destroyed or altered (in the language of the rule) “unlawfully”. For example, spoliation by a lawyer that constitutes a crime or violates a discovery order or the requirements of a subpoena is unlawful and in violation of Rule 3.4(a). Such conduct may also violate other rules, such as Rule 1.2(d) (counseling or assisting a client in criminal or fraudulent conduct) or the general misconduct proscriptions of Rule 8.4.); http://www.mass.gov/obcbbo/eve.htm
Spoliation of Electronic Evidence: 5 B.U. J. SCI. & TECH. L. 13 (1999)* (See Coleman v. Eddy Potash, Inc., 905 P.2d 185, 188 (N.M. 1995) (noting that California was the first jurisdiction to recognize a tort for intentional spoliation of evidence); Cf. Lawrence Solum & Stephen Marzen, Truth and Uncertainty: Legal Control of the Destruction of Evidence, 36 EMORY L.J. 1085, 1087 n.4 (1987) (citing, among other cases, The Pizarro, 15 U.S. (2 Wheat.) 91 (1817); Pomeroy v. Benton, 77 Mo. 64 (1882); Armory v. Delamirie, 93 Eng. Rep. 664 (K.B. 1722), Rex v. Arundel, 80 Eng. Rep. 258 (1617);
Spoliation of E-Mail Evidence: (Ballon, Cyberspace Law, 1999) http://library.findlaw.com/1999/Feb/22/131004.html
Spoliation of evidence: The trend to a new tort; http://www.findarticles.com/p/articles/mi_qa3811/is_199901/ai_n8848378
Easton Sports v. Warrior Lacrosse, http://news.com.com/The+rise+of+electronic+evidence/2010-1014_3-6133539.html?tag=nefd.top
Of course they destroyed or “lost” any evidence of wrongdoing on their part. They should say, ” Well, uhm, these files were all of part of multiple government servers, then something happened, we don’t know what, but ‘poof’, it’s all gone!” “What a tragedy.”
However, you will never see a politician even approach the subject, or it’s “audit time”. Government agencies threatening “whistleblowers” threaten our liberty and deserve death by hanging. So when you look at the criminals in charge, not one will step forward without being “thrown to the lions because they’re all “in on it”. The decadence, debauchery, blatant theft and corruption have chiseled away any hint of legitimacy of anyone currently holding office.
I can’t wait until 535 reps and 100 senators, along with the entire executive branch involved in all this treason spreading like wildfire, hang from the gallows as our republic is retaken.
I nternal
R aping
S ervice
I hear there’s a new computer virus .
Call the “IRS” virus.
It breaks into your computer.
Steals all your banking information.
Fks you in the ass.
Then leaves you sitting naked on a tree stump.
And then it deletes your hard drive … so it doesn’t leave any fingerprints.
Seems to only pop up once a year around mid April.
Make sure your virus software is updated.
Especially if you use turbo tax.
smoke and mirrors.
Not the only copy and not ‘erased’. The TOC was deleted. Thats it.
IF it was kiddy porn “erased” from a used computer you just bought, they would find it…