Lately, emails tend to be the bane of public officials' existence. Just ask Hillary Clinton.
In the case of former Utah Attorney General Mark Shurtleff, it's the absence of documents and claims that federal prosecutors are withholding them from evidence in his criminal prosecution that are making news. A local prosecutor as well as Shurtleff's defense attorney both have claimed that federal prosecutors have not shared significant evidence they have from a government investigation into the AG's office.
The FBI insists it has handed over everything relevant to the case. And even if it hadn't, the FBI claims the state can't force it to hand over additional evidence.
In recent court filings, indicted IWorks businessman Jeremy Johnson, a key witness against both Shurtleff and ex-AG John Swallow, alleges the feds are doing the same thing to him—essentially withholding (and possibly destroying) email evidence key to his case. Upcoming criminal hearings, slated for Oct. 29 and 30 at U.S. Courthouse for the District of Utah, have some in the legal community on tenterhooks wondering what will come out next.
His federal criminal case was filed by the U.S. Attorney's Office in Utah, charging Johnson and four others with bank fraud. Johnson is also named in a federal civil case in Nevada brought by the Federal Trade Commission alleging Johnson and multiple former IWorks employees engaged in consumer fraud.
Both cases revolve around his former business empire, IWorks. Johnson denies the allegations.
Attorneys representing both sides in Johnson's legal battles, along with Johnson himself, are barred from commenting because of an ongoing gag order, so the information in this story is based upon court documents and previously reported news stories.
In a court filing from early August 2015 in Nevada, Johnson alleged that the receiver of his estate, Robb Evans & Associates, had been less than neutral in its dealings with the Federal Trade Commission and with Johnson's own court-appointed technology expert, Eric Wheeler.
The receiver is also court appointed and its role is to protect the financial value of the assets and property of the defendants, in this case, IWorks. The receiver also provides access to all parties concerned with the case information on assets as well as documents and materials belonging to the defendants.
Recently, Wheeler, as Johnson's court-appointed technology expert, copied all the emails from Johnson's server which, by then, the receiver controlled. "It was abundantly clear to the defendants that many of the emails were missing," Johnson wrote in a court document. These missing emails, which belonged to Johnson and his associates, four of whom are also defendants in his case, "would vindicate them of any wrongdoing in this case," Johnson wrote.
According to exhibits filed by Johnson with his August 2015 motion, an employee of Robb Evans & Associates told FBI agents that Johnson's email contained 12 gigabytes of data, while another defendant, Bryce Payne, had 18 gigabytes of data.
However, Wheeler found that the copies he made of the server contained only 7 gigabytes of Johnson's emails and 8.8 gigabytes of Payne's.
Not only were emails from a key period in the prosecution's case missing, Johnson claims, but in a separate filing, he claimed that federal prosecutors had copies of emails from that late-2000s period that he did not. Further, Johnson believed that the receiver either withheld or destroyed 14.2 gigabytes of emails.
Wheeler contacted federal prosecutors in Utah and "expressed concerns that it appeared that [Robb Evans & Associates] was producing servers, documents and information to the government, that were different than what has been produced to the defense," Johnson's former investigator, Pamela Lindquist, wrote in an affidavit.
It was Lindquist who discovered that 4,000 emails between Johnson and his attorneys, which are supposed to be protected by attorney-client privilege, were in the possession of federal prosecutors. These should have been filtered out of the discovery by what's known as a "taint team" put together by the U.S. Attorney prior to the prosecutors receiving the material, Lindquist stated in the affidavit.
In a Nevada filing, Robb Evans & Associates responded emphatically to these claims:"There are no missing emails. Every single one of Jeremy Johnson's emails and Bryce Payne's emails were provided to Defendants," not once but three times. Further, the receiver claimed, Johnson's allegations were "another in a long line of baseless personal attacks on those who are Johnson's real or perceived adversaries." As to the contradictory number of gigabytes, the receiver stated that an employee had "inadvertently added together" email volumes that had been removed from the server for analysis.
But, according to Johnson's Sept. 2015 court filing, Wheeler's perspective was starkly different, noting that Wheeler believed the missing data to be "the result of someone intentionally erasing the data" or manipulating files before Wheeler received them.
Johnson isn't the only one to raise the issue of the missing emails. Attorney Marcus Mumford, who represents another co-defendant, Scott Leavitt, wrote an email to Utah federal prosecutor Rob Lunnen in early September 2015. The email, which is now included as an exhibit in recent court filings, notes that Mumford and his colleagues "have been troubled for some time in our inability to find what my client has described as exculpatory emails in the database." In total, Mumford wrote, four defendants were missing emails and data from between 2007 and 2009 or 2010. Mumford noted that the Robb Evans & Associates declined to respond to Wheeler's request for "guidance and information" regarding the absence of data. The receiver, in fact, referred him to federal prosecutors.
In a later email to the prosecutor, Mumford expressed "grave concerns" regarding what material he did have. "It appears that you have the email data from the time periods we are missing. I thought we were assured that we had everything you have. Can you explain?"
He went on to note that the missing data was from the time period 2009 to 2010, which "is critical in the case. We have been trying to fill in the story presented by the government with the 'rest of the story,' so to speak. Only to realize now that it appears to have been excised from the data we received."
Lunnen's emailed response is also part of the court record. He said he understood Mumford claims—namely, that the database the prosecutors got from the receiver was "different from the copy of the data base" given to the defendants. "I need to know if this is accurate. If it is, I need to find out how it happened and how can we fix it. This has to be sorted out now. It is urgent," Lunnen told Mumford.