IN THE CIRCUIT COURT OF SEBASTIAN COUNTY, ARKANSAS

FORT SMITH DISTRICT
DIVISION VI
DON PAUL BALES, et al. PLAINTIFFS
v. Case No. CV-14-23 (VI)

CITY OF FORT SMITH, ARKANSAS,
et a1. DEFENDANTS

 

MOTION FOR SANCTIONS
PURSUANT TO ARK. R. CIV. P. 37

 

COME NOW the Plaintiffs, by and through undersigned counsel, and for their
Motion for Sanctions Pursuant to Ark. R. Civ. P. 37, state:
1. This Court granted Plaintiff?s Motion to Compel on May 9, 2014.
2. Defendants have failed to properly answer discovery requests in compliance
with this Court?s Order, to wit:

a. Defendants have engaged in intentional spoliation of evidence by
deleting entire email accounts without allow Plaintiffs to search the
emails;

b. Defendants have engaged in ongoing, intentional spoliation of evidence
by failing to preserve and provide deleted emails that, by their own
admissions, were recoverable; -

c. Defendants have relied upon past AFOIA responses in answering
Plaintiffs? discovery requests, resulting in Defendants? providing

emails that have improper redactions; and

CV-14-23 Bales - Mot. for Sanctions
Page 1 0f 3

d. Defendants have failed to provide usable documents related to Capt.
Alan Haney?s computer, inasmuch as the external hard drive supplied
to Plaintiffs contained malicious software designed to hack into
Plaintiffs? counsel?s computer, rendering the hard drive unsafe for
Plaintiffs? use.
3. Concurrently with this Motion, Plaintiffs have ?led a Brief in Support, which
they incorporate by reference herein as if laid out word for word.
WHEREFORE, based on the foregoing, Plaintiffs pray that this Court will grant
their Motion for Sanctions Pursuant to Ark. R. Civ. P. 37 and enter an order:
Striking Defendants? Answer and entering default judgment in favor of
Plaintiffs;
Striking Defendants? Answer as it relates to any allegations or averments
regarding Kevin Lindsey, Chris Boyd, Alan Haney, or Jarrard Copeland;
Striking Defendants? pending Motion for Summary Judgment;
Holding Defendants in criminal contempt of this Court; and/ or
Imposing any other sanctions that this Court determines to be proper.
Plaintiffs further pray that they be awarded attorney?s fees for the costs associated
with bringing this Motion, as allowed by law, and that this Court grant Plaintiffs? pending
motion for fees related to the May 9, 2014 hearing, which this Court previously took

under advisement.

Respectfully submitted,

Bales - Mot. for Sanctions
Page 2 of 3

 

 

n,
 .c pbell
Ark. Bar 0. 20090932

Pinnacle Law Firm, PLLC
424 w. 4th St., Suite A
North Little Rock, AR 72114
P: (501) 396-9246


 

CERTIFICATE OF SERVICE

I, Matthew D. Campbell, hereby certify that at true-and-correct copy of the
foregoing, along with all exhibits referenced therein, was served upon the following via
electronic mail on this 10th Day of April, 2015:

Colby Roe
croe@dailywoods.com

Douglas Carson

dcarson@dailywoods.com


Bales Mot. for Sanctions
Page 3 of 3

IN THE CIRCUIT COURT OF SEBASTIAN COUNTY, ARKANSAS

FORT SMITH DISTRICT
DIVISION VI
DON PAUL BALES, et a1. PLAINTIFFS
v. Case No. CV-14-23 (VI)

CITY OF FORT SMITH, ARKANSAS,
et a1. DEFENDANTS

 

BRIEF IN SUPPORT OF MOTION FOR
SANCT IONS, PURSUANT TO ARK. R. CIV. P. 37

 

A. BACKGROUND

On May 9, 2014, this Court granted Plaintiffs? Motion to Compel and ordered
Defendants to properly respond to Plaintiffs? requests for production and other discovery
requests. See Order, dated May 28, 2014 (Exhibit A). The Court?s instructions to
Defendants were, inter alia, to ?provide Plainti?'s? counsel with complete responses to
Plaintiffs? requests for production? by June 7, 2014. Id. at (H 3. This Court further
ordered, ?Defendants shall provide all requested documents and shall neither incorporate
by reference, nor rely upon in lieu of production, documents that might have been
provided pursuant to the Arkansas Freedom of Information Act.? Id. at (IT 7. Finally, as is
relevant to the instant motion, this Court ordered, ?Where documents or items requested
by Plaintiffs previously existed, but are no longer in existence, Defendants shall clearly
state the date that the document(s) or item(s) ceased to exist and the name of the person

who deleted, purged, or otherwise destroyed the document(s) or item(s). Id. at (IT 9.

Bales Mot. for Sanctions
Page 1 of 14

This Court?s instructions were not vague, and there was there no question as to
what was required of the Defendants. Even the Southwest Times-Record was clear on
what Defendants? responsibilities were following the hearing, writing:

The judge then directed Carson to have his clients answer the
interrogatories completely, provide an explanation if documentation
requested doesn?t exist, and if a document has been deleted or otherwise
destroyed, identify when it was destroyed and who destroyed it.
?Judge: Fort Smith Police, City Must Comply With Requests In Whistle Blower Case,?
SW TIMES-RECORD, May 10, 2014, at A1.
Yet, as demonstrated herein, rather than comply, Defendants chose to skirt and

ignore this Court?s order. Accordingly, sanctions pursuant to Rule 37 are appropriate.

B. RELEVANT LEGAL STANDARDS REGARDING FAILURE TO
ANSWER DISCOVERY AND SPOLIATION.

Under Rule 37, ?If a party or an officer, [or a] director or managing agent of a
to obey an order to provide or permit discovery, including an order made
under subdivision of this rule[,] the court in which the action is pending may make
such orders in regard to the failure as are just.? Ark. R. Civ. P. That subdivision
goes on to say that ?such orders,? include, but are not limited to:

(A) An order that the matters regarding which the order was made or any
other designated facts shall be taken to be established for the purposes of
the action in accordance with the claim of the party obtaining the order;

(B) An order refusing to allow the disobedient party to support or oppose
designated claims or defenses, or prohibiting him from introducing
designated matters in evidence;

(C) An order striking out pleadings or parts thereof, or staying further
proceedings until the order is obeyed, or dismissing the action or
proceeding or any part thereof, or rendering a judgment by default against
the disobedient party; [and]

CV-14-23 Bales Mot. for Sanctions
Page 2 of 14

(D) In lieu of any of the foregoing orders or in addition thereto, an order
treating as a contempt of court the failure to obey any orders except an
order to submit to a physical or mental examination[.]

Ark. R. Civ. P. 

The Supreme Court has further held, ?the imposition of sanctions for the failure
to make discovery rests in the trial court?s discretion.? Vileing Ins. Co. v. Jester, 310 Ark.
317, 326, 836 371, 376 (1992) (citing Goodwin 1). Harrison, 300 Ark. 474, 780
518 (1989)). Such sanctions do not require a showing of bad faith by the party who
has failed to make discovery. See id. However, the Arkansas Supreme Court has noted,
?We have [repeatedly] upheld the trial courts? exercise of discretion in granting severe
Rule 37 sanctions for ?agrant discovery violations.? Id. (citing Rogers 2). McRaven ?s Cherry
Pickers, Inc, 302 Ark. 140, 145, 788 227, 230 (1990)); accord Ross Sys. 2). Advanced
Envtl. Recycling Techs, Inc, 2011 Ark. 473 (upholding sanction of striking of defendant?s
answer where defendant failed to comply with the circuit court?s discovery order and
engaged in a pattern of conduct that obstructed discovery); Southern College of
Nararopathy v. State ex rel. Beebe, 360 Ark. 543, 203 111 (2005) (upholding
sanction of entry of default against party where court had granted the plaintiff ?s motion to
compel discovery and the defendant destroyed the very information that the plaintiff had
sought to have produced).

Regarding spoliation of evidence, the Supreme Court has held, where spoliation is
established, ?the fact ?nder may draw an inference that the evidence destroyed was
unfavorable to the party responsible for its spoliation.? Goff?. Harold Ives Tracking 00.,

Inc., 342 Ark. 143, 27 387 (2000). The Go? court speci?cally held that there was

Bales Mot. for Sanctions
Page 3 of 14

no need to create a separate tort action for spoliation because of the broad range of
sanctions available under Rule 37 for failure to make discovery, as well as possible
criminal actions for intentional destruction of evidence. Id.

C. ARGUMENT.

1. FAILURE TO ANSWER DISCOVERY GENERALLY.

This Court?s order compelling discovery makes clear that past AF OIA responses
were not to be relied upon in answering Plaintiffs? discovery requests. See Exhibit A, at (II
7. Yet, in responding to Plaintiffs? requests, Defendants undertook no additional steps to
locate or provide any additional emails than had been previously produced under the
AFOIA. Instead, Defendants took the same documents that had been previously
produced, stamped them with Bates numbers, and provided them a second time.
Additionally, while the AFOIA requires redaction of certain information in response to a
request, Arkansas? Rules of Civil Procedure do not allow for such redactions. By simply
Bates-numbering previously produced emails Defendants? discovery responses contain
dozens of partially redacted emails. A small sample of these emails, showing redactions of
Plaintiffs? own names, are provided herewith as Exhibit B. Such redactions would be
improper in discovery generally, but there is absolutely no justi?cation for redactions
where, as here, a protective order is in place.

Furthermore, by producing only the emails that were previously produced under
the AFOIA, Defendants have, by their own admission, produced no deleted, but
recoverable, emails. In resPonding to the prior AFOIA requests on which Defendants

now rely, Sgt. Daniel Grubbs, in his of?cial capacity as custodian of the records for the

Bales Mot. for Sanctions
Page 4 of 14

FSPD, stated that it was impossible to recover any deleted emails. This is completely

inconsistent with Chief Lindsey?s sworn answer in response to Plaintiffs? requests for

production:
As to possibly deleted emails, the system used by FSPD is designed so that
when an email or other document is deleted off an individual computer, it
remains on the server for six weeks. After six weeks, according to the
FSPD IT personnel, it is permanently deleted and is no longer retrievable.
This deletion from the server happens automatically six weeks after
deletion.

See Resp. to RFP Def. Lindsey?s Amend. Resp. (Exhibit C).

Thus, both because they ?rel[ied] upon? the past AF OIA responses in lieu of
producing non-redacted emails and because they did not recover and provide deleted
emails, which Plaintiffs? speci?cally requested, Defendants have not complied with the

letter or the intent of this Court?s May 9, 2014 ruling.

2. CONSTRUCTIVE FAILURE TO ANSWER CERTAIN
DISCOVERY.

As part of Plaintiffs? requests for production, they sought ?all Word documents,
PDFs, and/ or other documents stored on Capt. Alan Haney?s FSPD-computer hard drive
and/or FSPD network drive.? The scope of this request was limited by this
Court?s order. See Exhibit A, at (H 6. In responding to this Request, Defendants? attorney
sent an external hard drive, via FedEx, to Plaintiffs? attorney, which purported to be a
Alan Haney?s computer.?

Rather than plugging the external hard drive into his own computer, Plaintiffs?
counsel sent it to an IT expert to review the drive to see if the scan looked to be complete

and to ensure that there were no viruses or other malicious software on it that could

Bales Mot. for Sanctions
Page 5 of 14

damage Plaintiffs? counsel?s computer. Upon receiving the drive, Mr. Geoff Mueller
examined it and located four Trojans buried in a subfolder. See Af?davit of Geoff Mueller
(Exhibit D). According to Mr. Mueller, these Trojans were designed to steal passwords,
install malicious software, and give someone else command and control of the infected
computer. See id.

Mr. Mueller put this information in a letter to Prosecuting Attorney Dan Shue,
which was delivered to Mr. Shue by Plaintiff Entmeier and Plaintiffs? attorney. Mr. Shue
asked the State Police to investigate, but they declined, because the state-law issues
appeared to be misdemeanors.1 See Letter to Dan Shue from Arkansas State Police, dated
Sept. 29, 2014 (Exhibit E). Mr. Shue then recommended that Plaintiffs? attorney contact
the US. Attorney?s Of?ce, as, in Mr. Shue?s opinion, the US. Attorney would have
jurisdiction under federal computer and wiretapping laws. See Letter from Dan Shue,
dated Oct. 1, 2014 (Exhibit F).

Plaintiffs? attorney has retained legal counsel for the purposes of pursuing this
matter further. For that reason, the hard drive necessarily has been preserved in the
format in which it was received. Because the external hard drive is infected with these
Trojans, however, Plaintiffs and their attorney are unable to safely access the materials on
the drive or to utilize those documents in any meaningful way. See Exhibit E, at 11.
Thus, while Defendants technically may have provided some or all of the requested

documents from Capt. Haney?s computer, Plaintiffs have no way to know whether the

 

1 Plaintiffs note that the ASP letter is incorrect on this point, as it is a Class felony when
a ?person knowingly and without to gain access computer,
system, [or] network,? if that attempt is ?committed to devise or execute a scheme to
defraud or illegally obtain property.? Ark. Code Ann. 5-41-203.

Bales Mot. for Sanctions
Page 6 of 14

information is complete, nor can they utilize the information. Defendants? inclusion of
malicious software on the hard drive is just as bad, if not worse, than simply providing
nothing at all, and it amounts to a constructive failure to answer discovery, in violation of
this Court?s order.

Further failure to comply with this Court?s order can be seen from the fact that,
once Plaintiffs were allowed to meet with Defendants and FSPD IT Specialist Alvey
Matlock, which is discussed in more depth below, Plaintiffs located several dozen pages of
emails which had not been previously provided. This Court speci?cally ordered
Defendants to ?provide Plainti?'s? counsel with complete responses to Plaintiffs? requests
for production? by June 7, 2014. By de?nition, is only because Defendants? responses
were incomplete that Plaintiffs could locate additional emails during the later search.

3. SPOLIATION AS FAILURE TO ANSWER DISCOVERY.

Subsequent to ?ling the instant lawsuit, Plaintiffs sent a spoliation letter to the
FSPD, instructing that all emails?including deleted emails that were recoverable?-be
retained. See Spoliation Letter dated Jan. 15, 2014 (Exhibit see also Email from Kevin
Lindsey, dated Jan. 15, 2014 (Exhibit H). In this letter, Defendants were advised:

Additionally, you may have to suspend certain normal computer
maintenance procedures, including, but not limited to, de?fragmenting
hard drives, deleting sent or received email communications, purging old
?les, or running any ?disk cleanup? processes. 

Electronic data and storage media that may be subject to our discovery
requests, which you and all commissioned of?cers and civilian employees
of the FSPD are obligated to maintain without alteration or destruction,

include, but are not limited to, the following: 

All emails, both sent and received, whether internally or externally.

Bales - Mot. for Sanctions
Page 7 of 14

Exhibit G, at 2-3.

Furthermore, as previously noted, Defendant Kevin Lindsey stated in response to
Plaintiffs? Requests for Production that deleted emails are purged from the system
?automatically six weeks after deletion.? See Exhibit C. Accordingly, every email related
in any way to Plaintiffs, current and/ or former named Defendants, and/ or Angela
McCabe should have been available from as early as December 4, 2013 six weeks
prior to the January 15 acknowledgement of the spoliation letter).

In its May 9, 2014 ruling from the bench, this Court instructed that, in the event
that Plaintiffs believed that any requested discovery had not been produced, Plaintiffs?
counsel should inform Defendants counsel within thirty (30) days. See Order, dated June
27, 2014 (Exhibit I). Upon making such noti?cation, Plaintiffs? counsel would be allowed
to schedule a meeting with FSPD IT Specialist Alvey Matlock, who would search for
speci?c documents as directed by Plaintiffs? counsel.

After receiving Defendants? responses to Plaintiffs? requests, Plaintiffs reviewed
the produced documents and noted that few, if any, emails from most of the Defendants
had been produced, aside from what had been previously produced in response to AFOIA
requests. Accordingly, Plaintiffs? counsel arranged with Defendants? counsel to meet at
the FSPD with Mr. Matlock, and that meeting was scheduled for August 5, 2014.
Plaintiffs later learned that Mr. Matlock attended a forensic?computing convention only
ten days after this Court granted Plaintiffs? Motion to Compel and that, while the
convention offered several classes speci?cally on e-discovery and preservation of

evidence, Mr. Matlock chose to take classes on secure data deletion, whistle-blower

Bales Mot. for Sanctions
Page 8 of 14

investigation, and monitoring employee activity. See Lab Attendance CPE Form, signed
and dated by Alvey Matlock on June 2, 2014 (Exhibit J). Upon learning of this fact,
Plaintiffs? counsel sent an updated spoliation letter to Defendants? attorney, reiterating
the duty to preserve evidence. See Letter to Colby Roe, datedjuly 18, 2014 (Exhibit K).

As this Court may recall, Defendants cancelled this scheduled meeting on August
1, 2014, via email to Plaintiffs? counsel. See Email from Doug Carson, dated Aug. 1, 2014
(Exhibit L). Plaintiffs? counsel contacted this Court on August 4, 2014, in an effort to
have the August 5 meeting date honored. See Letter to Court, dated Aug. 4, 2014 (Exhibit
M). Defendants? counsel reSponded on that same date, contending that there was nothing
untoward or suspicious about the last-minute rescheduling and that Court intervention
into the matter was not needed. See Letter from Doug Carson, dated Aug. 4, 2014
(Exhibit N).

The meeting between Plaintiffs, Defendants, and Mr. Matlock was rescheduled
for August 28, 2014. On August 5, 2014, however, Maj. Chris Boyd, Sr., retired from the
FSPD. On August 28, when Plaintiffs? counsel asked Mr. Matlock to pull up Maj. Boyd?s
email account, Defendant Jarrard Copeland immediately asked Mr. Matlock whether
Boyd still had an email account, to which Mr. Matlock replied that he did not. Mr.
Matlock further informed Plaintiffs? counsel that the emails had been deleted. When
pressed on this issue, Mr. Matlock con?rmed that they were deleted after Maj. Boyd?s
retirement on August 5, 2014.

It strains credulity well past its breaking point to suggest that rescheduling the

meeting with Mr. Matlock, which was to take place on the same day that Maj. Boyd

CV-14-23 Bales - Mot. for Sanctions
Page 9 of 14

retired, then deleting Maj. Boyd?s emails at some point between August 5 and August 29
under the guise of deleting email accounts when an of?cer leaves the force, was anything
other than what it appears to be?intentional spoliation of evidence. Worse, it is
intentional spoliation of the very evidence that this Court ordered Defendants to provide.

That this was intentional spoliation is bolstered by the fact that, as late as 6:10 PM
on August 4, 2014, Mr. Matlock was planning on being at the SPD ?by lunch? on
August 5, 2015, and was communicating with other of?cers about doing speci?c tasks on
the afternoon of August 5. See Email from Alvey Matlock to Dean Pitts, dated Aug. 4,
2014 (Exhibit 0). Maj. Pitts forwarded that email to Sgt. Daniel Grubbs at 8:55 AM on
August 5. See M. It was not until 9:06 AM on August 5, 2014?-the date originally
scheduled for the meeting and four days after Defendants? had cancelled the meeting?
that Mr. Matlock informed anyone that he was taking that entire day off as a
?discretionary day.? See Email from Alvey Matlock to Dean Pitts, dated Aug. 5, 2014
(Exhibit P). And it was not until on or about August 19, 2014, when Plaintiffs? counsel
requested Mr. Matlock?s payroll record for the period covering August 5, that the SPD
Payroll Department was actually informed that Mr. Matlock had taken a discretionary day
two weeks prior. See Email from Daniel Grubbs, dated Aug. 19, 2014 (Exhibit 
Interestingly, this is the only discretionary day that Mr. Matlock has taken in the last

three-plus years.2 See Payroll Records of Alvey Matlock (Exhibit R).

 

2 Additionally, Mr. Matlock?s employment is controlled by the Human Resources Policy
for Non-Uniformed Employees, which requires supervisory approval before a
discretionary day is scheduled or taken. See Non-Uniformed Employees Handbook, at
There is nothing to suggest that, prior to Mr. Matlock?s email, after he
was already not at work, he requested approval for the discretionary day.

Bales Mot. for Sanctions
Page 10 of 14

While the outright deletion of Maj. Boyd?s email accounting is the most egregious
example, Defendants have also engaged in spoliation by failing to retrieve and preserve
deleted emails from at least as far back as December 4, 2013, as required by Plaintiffs?
spoliation letter. By Defendants? own admission, the FSPD system permanently purges
deleted emails after six weeks; Defendants? acknowledgement of this state of affairs,
combined with their failure to retrieve any deleted emails, amounts to a knowing decision
to allow the completely preventable spoliation of all deleted emails.

Likewise, there can be little argument against the idea that Defendants were fully
aware of their duty to preserve certain evidence, as Plaintiffs? spoliation letter and
Defendant Lindsey?s email to FSPD personnel made that conclusion inescapable. As of
the date that they received Plaintiffs? spoliation letter, Defendants, by their own
admission, could have retrieved and preserved deleted emails dating back to December 4,
2013. Given that there was a Civil Service hearing on December 5, 2013, which involved
Plaintiff Bales and which directly relates to the cause of action in this matter, it is a near
certainty that there would have been multiple emails from that time period, both to and
from the named defendants as well as to and from non-defendants within the FSPD. After
all, there were several FSPD officers and employees at the December 5, 2013 Civil
Service Hearing, and the volume of emails to and from FSPD of?cers on many different
topics shows that email communication is a common way to discuss more or less

everything, especially between of?cers who work different shifts. For Defendants to

Bales Mot. for Sanctions
Page 11 of 14

suggest that almost no one emailed within the SPD regarding the reversal of Bales? 5-
day suspension, despite the obvious interest in the hearing itself, is illogical.3

D. CONCLUSION.

Defendants have failed to comply with this Court?s order regarding discovery in
the following ways:

Failing to retrieve, and allowing the Spoliation of, deleted emails from
December 5, 2013, through May 9, 2014;

0 Failing to provide full, unredacted copies of emails, rather than relying on
the emails previously provided under the AF 

Failing to provide documents from Alan Haney?s computer in a usable
format, due to Defendants? decision to include malicious software on the
external hard drive, rendering the drive?s contents unusable; and

Choosing to delete Maj. Chris Boyd, Sr.?s entire email account as soon as
Boyd retired, despite knowing that Plaintiffs had scheduled a meeting to
review that account prior to his retirement.

Recently, the Arkansas Supreme Court affirmed a trial court?s decision to strike a
defendant?s answers to speci?c claims and averments in the complaint, where the
defendant failed to provide emails in response to discovery and then failed to provide
those same emails after being ordered by the court to do so. See Lake Vz?ll. Healthcare Ctr.,

LLC v. Hatchett, 2012 Ark. 223, 407 521. Juxtaposed with the actions of

 

3 The Civil Service Hearing-related emails are, of course, only one topic and one time
period of emails that Defendants allowed to be permanently erased, despite a spoliation
letter.

Bales Mot. for Sanctions
Page 12 of 14

Defendants in this case, the violations in Hatchen? were comparatively minor. After all, the
emails in Hatchert existed, but were simply not produced after the court directed
production; emails in this case existed, but then were purposefully destroyed, even after
this Court ordered them produced.

Defendants have also chosen to allow other emails, which were supposed to be
retrieved and retained for discovery purposes, to instead be purged from the system for
months upon months, so that, by the time this Court ordered the emails produced, the
emails from December 4, 2013, through March 28, 20144, were already permanently
deleted. On top of all of that, Defendants have also attempted to illegally access Plaintiffs?
attorney?s computer and, in the process, have made a whole other set of documents
unusable. Taken as a whole, Defendants? failure to comply with this Court?s order, and
the methods they have used in an attempt to avoid complying with the order, warrant
severe sanction.

WHEREFORE, based on the foregoing, Plaintiffs pray that this Court will grant

their Motion for Sanctions Pursuant to Ark. R. Civ. P. 37 and enter an order:

Striking Defendants? Answer and entering default judgment in favor of the

Plaintiffs;

Striking Defendants? Answer as it relates to any allegations or averments
regarding Kevin Lindsey, Chris Boyd, Alan Haney, or Jarrard Copeland;

Striking Defendants? pending Motion for Summary Judgment;

0 Holding Defendants in criminal contempt of this Court; and/ or

 

4 Eg. six weeks prior to this Court?s May 9 ruling.

Bales Mot. for Sanctions
Page 13 of 14

 Imposing any other sanctions that this Court determines to be proper.
Plaintiffs further pray that they be awarded attorney?s fees for the costs associated
with bringing this Motion, as allowed by law, and that this Court grant Plaintiffs? pending
motion for fees related to the May 9, 2014 hearing,'which this Court previously took

under advisement.

Respectfully submitted,

    

. 0 .
Pinnacle Law Firm, PLLC
424 W. 4th St., Suite A
North Little Rock, AR 72114
P: (501) 396-9246
matt@pinnaclelawfirm.com

 

CERTIFICATE OF SERVICE

 

I, Matthew D. Campbell, hereby certify that at true-and-correct copy of the
foregoing, along with all exhibits referenced therein, was served upon the following via
electronic mail on this 10th Day of April, 2015:

Colby Roe
croe@dailywoods.com

Douglas Carson
dcarson@dailywoods.com

 

 


43%)

Bales Mot. for Sanctions
Page 14 of 14

 ?5r

.. 
IN THE CIRCUIT COURT OF SEBASTIAN COUNTY, 


DIVISION non PAUL BALES, et a1. 
PLAINTIFFS 
v. 1 No. cv?14?0023

CITY OF FORT SMITH, ARKANSAS, et a1.
DEFENDANTS

 

ORDER

 

On this date came to be considered by this Court
Defendants? Notion to and Plaintiffs? Motion to Compel.
Having considered the motions, including the pleadings, briefs,
and oral arguments, this Court finds:
l. Defendants? Motion to is DENIED.
2.Plaintiffs? Motion to Compel is GRANTED.
3.No later than June 7, 2014, Defendants, by and through
their attorney, shall proxdde Plaintiffs? counsel with
complete responses to Plaintiffs? requests for production
that are organized and labeled in compliance with Ark. R.
Civ. P. 
4.In regards to Plaintiffs? request for production no. 4 to
separate Defendant Alan Haney, the obligation to respond

to that request shall be deemed satisfied by production

. In answering Plaintiffs?

of forms issued by the City of Fort Smith to Alan
Haney and for Emily Haney for the years requested, rather
than by production of full and complete copies of the
income tax returns of Alan and Emily Haney.

In regards to Interrogatories nos. 4 and 5 and request
for production no. 3 to the City of Fort Smith, the City
need answer only with regard to lawsuits concerning
personnel matters involving the police department of the
City of Fort Smith.

In regards to Request for Production No. 17 to Defendant
Lindsey, the City need answer only with regards to those
items on Defendant Haney?s FSPD computer hard drixe
and/or FSPD network drive and a network?generated log of
all additions or deletions from that drive occurring
between January 1, 2012, and the date of receipt of
Plaintiff?s requests for documents to the extent that
such documents name or otherwise expressly relate to the
Plaintiffs in this action and/or Angela McCabe.
requests for production,
Defendants shall provide all requested documents and
shall neither incorporate by reference, nor rely upon in
lieu of production, documents that might have been
provided pursuant to the Arkansas Freedom of Information

Act.

B.Where documents or items requested by Plaintiffs do not
currently exist and have never previously existed,
Defendants shall explicitly state this fact.

9. Where documents or items requested by Plaintiffs
previously existed, but are no longer in existence,
Defendants shall clearly state the date that the
document(s) or item(s) ceased to exist and the name of
the person who deleted, purged, or otherwise destroyed
the document(s) or item(s).

10. No later than June 2014, Defendants, by and through
their attorney, shall also proxdde Plaintiffs? counsel
with ansvers to Plaintiffs? interrogatories that are
properly signed as required by Ark. R. Civ. P. 

ll. Plaintiffs? counsel may file a notion for fees and

costs pursuant to Ark. R. Civ. P. 

IT IS so ORDERED. 
11?;

CIRCUIT ?Er DGE

6? 1% 

DATE

Prepared by:

Matthew D. Campbell
PINNACLE LAW FIRM, PLLC

424 w. 4th St., Suite A
North Little Rock, AR 72114
P: {501) 396?9246

F: {501) 421?0189

Approved as 
630%

Dougfhg M. Carson, Attorn5?5for Defendants

Le. 
m.C.G.m w.
m.

(1.202..

E?k??l?v 

From: 

To: 

CC: 11mm;
Subject: Pre-Detenninatlon Headng

Date: Thursday, October 10, 2013 3:16:40 PM

 

You have two FDl-l'ssoheduled for next week. The first one will be on Tuesday, 10-15-13 at
in the Bartlett community Fbom. The second one will be on Wednesday, 10-16-13 at
in the Bartlett (bmmunity Rnom.

Thanks,

Capt .hrrard Cbpeland

BALES v. 

mmSubject: Pris-Determination Hearing

Date: Thursday, October 10, 2013 3:18:24 PM

 

You have a szheduled for next Tuesday. 10-15-13 at in the Bartlett (bmmunity Fbom.

Thank you,

Capt tarrard (bpeland

BALES v. CITY002759

From: 



I man Rig g! Lg!" (gun jjammugg [?mlE- [Egmi- ?gnel?l Lam 
in i

Subject: Prue-Determination Hearing

Data: Thumday. October 10. 2013 12032 PM

You have a PDH scheduled for next Wednesday. 10-16-13 at in the Bartlett Cbmmunity
Room.

 

 

Thank You.

Gapt Jarrard Cbpeland

BALES V. CITYOUZMD

Tn: 

Cc: 
Want}; 

Subject: RE: Pro-Datamation Hearlng

Date; Thursday, October 10, 2013 9:59:42 PM

Gentlemen. Tuesday at 3 pm creates a scheduling conflict that would be hard to remedy, After
Speaking with_ and- was advised that they will waive their hearings. i
request that I be ableto re-sd'tedule my hearing until Wednesday 10-16?2013 in the afternoon if
possible.

 

From: Copeland, Jarrard (Capt)

Sent: Thursde October 10; 2013 3:ajor); Boyd, Chris Sr (Maj); Pitts, Dean (Major); Risley, Levi (Capt); Hammond,

Jamie (Capt); Ranells, Larry (Capt); Barnett, Wayne (Sgt); Classen; John (Sgt); Lindsey; Kevin {Chiefo
Police)
Subject: Pre-Determination Hearing

You have a PDH scheduled for next Tuesday. 10-15-13 at in the Bartlett Community Raorn.

Thank you,

BALES v. 

 Ema-r 

IN THE CIRCUIT COURT OF SEBASTIAN COUNTY, ARKANSAS
FORT SMITH DISTRICT
DIVISION VI

DON PAUL BALES, RICK ENTMEIER,

and WENDALL SAMPSON, JR PLAINTIFF 
v. No. CV-14-0023
THE CITY OF FORT SMITH, ARKANSAS, et. al. DEFENDANTS

DEFENDANT KEVIN D. AMENDED RESPONSES TO
REQUESTS FOR PRODUCTION

Separate Defendant Kevin D. Lindsey makes the following amended responses to
Plaintiffs' Requests for Production:

REQUEST FOR PRODUCTION NO. 1: Produce copies of any documents, papers,
writings, or other tangible things identi?ed by you in response to Plaintiffs? First Set of

Interrogatories served concurrently herewith.

RESPONSE: Documents with Bates numbers identi?ed in those Interrogatory
responses are produced herewith.

REQUEST FOR PRODUCTION NO. 2: Produce copies of all documents, papers,
writings, tapes, memoranda, electronic recordings, or other evidence that you believe will
establish or tend to establish each a defense or rebuttal to any of the facts, claims, or
allegations contained in Plaintiffs' Complaint.

RESPONSE: Documents with Bates numbers identi?ed in those lnterrogatory
reSponses are produced herewith. All documents produced in discovery may be reSponsive
to this request.

REQUEST FOR PRODUCTION NO. 3: Produce all emails, whether sent or received by
you, between Lindsey and any other named party from July 1, 2012, to present, including
any such emails that have been deleted from Lindsey?s email account but are otherwise
retrievable by FSPD IT personnel or other personnel familiar with recovery of deleted
emails from the FSPD server.

RESPONSE: See documents with Bates numbers 2412 to 3226.

As to possibly deleted emails, the system used by FSPD is designed so that when an
email or other document is deleted off an individual computer, it remains on the server for

six weeks. After six weeks, according to the FSPD lT personnel, it is permanently deleted
and is no longer retrievable. This deletion from the server happens automatically six
weeks after deletion

REQUEST FOR PRODUCTION N0. 4: Produce copies of all documents, notes,
memoranda, text messages (whether on an FSPD-owned cell phone or a personal cell
phone), or other written records regardless of format or physical location regarding the
grievance ?led by Ms. Angela McCabe on or about July 14, 2013, including (but not limited
to) all such documentation as it relates to the addition to that investigation of a
dereliction-of-duty allegation on or about October 9, 2012.

See documents with Bates numbers 3227 to 3371.

REQUEST FOR PRODUCTION NO. 5: Produce copies of all documents, notes,
memoranda, text messages (whether on an FSPD-owned cell phone or a personal cell
phone), or other written records regardless of format or physical location regarding the
allegation by Sgt. Dewey Young that Plaintiffs and Capt. Edward Smalley were improperly
accessing certain telephone records within the NICE system, including (but not
limited to) all such documentation as it relates to the determination that Sgt. Young?s
allegations were without merit.

RESPONSE: Documents produced as Bates No. 3372 through 3399 are the
investigatory case ?le plus individual notes by Chief Lindsey, and they make a couple of
references to the accessing of phone records.

REQUEST FOR PRODUCTION NO. 6: Produce copies of all documents, notes,
memoranda, text messages (whether on an FSPD-owned cell phone or a personal cell
phone), or other written records authored by you, regardless of format or physical location,
regarding any administrative inquiries or investigation of any grievances ?led against any
or all of the Plaintiffs aside from the two listed in Requests 4 and 5, supra.

RESPONSE: Produced as Bates No. 3400 through 3425.

REQUEST FOR PRODUCTION NO. 7: Produce copies of all documents, notes,
memoranda, text messages (whether on an FSPD-owned cell phone or a personal cell
phone), or other written records regardless of format or physical location regarding any
administrative inquiries or investigations of grievances against Captain Alan Haney.

Produced as Bates No. 3483 through 3500 (Matthew Campbell
complaint 12/ 13/ 13); Bates No. 1850-52; Bates No. 8485 - 82. A recording of the Alan
Haney grievance hearing is produced.

REQUEST EOE PBQDUCTION NO. 8: Produce copies of all communications between
you and any member of the Office of Professional Standards regarding the FSPD

Page 2 of 5

investigation of the citizen complaint against Captain Alan Haney ?led on or about
December 13, 2013.

RESPONSE: Bates no. 3488.

REQQ EST FOR PRODUCTION NO. 9: Produce copies of all information provided by
you (or anyone investigating the December 13, 2013 complaint against Alan Haney at your
request) to any other party as part of that investigation.

RESPONSE: Bates no. 3489.

REQUEST FOR PROQQCTION NO. 10: Produce capies of all communication,
including (but not limited to) cellular phone call logs, regardless of whether the phone is
personal or is owned by the emails; memoranda; and/or informal notes between you
and Ms. Dawn Sprayberry regarding the investigation of any complaint, grievances, or
similar actions against any and all Plaintiffs.

RESPONSE: See Bates no. 3940 - 3941.

REQUEST FOR PRODUCTION NO. 11: Produce copies of all communication,
including (but not limited to) cellular phone call logs, regardless of whether the phone is
personal or is owned by the emails; memoranda; and/or informal notes between you
and any named party to this suit regarding any administrative inquiry or investigation of a
grievance against any of the Plaintiffs.

RESPONSE: See Bates no. 34-92 - 354-4.

REQUEST FOR PRODUCTION NO. 12: Produce capies of all schedules, timesheets,
and/or requests for leave for Major Mark Hallum, Major Chris Boyd Sr., Captain Alan
Haney, Captain larrard Copeland, Sergeant Greg Smithson, Sergeant Dewey Young,
Sergeant Daniel Grubbs, Sergeant Don Paul Bales, Sergeant Rick Entmeier, Corporal
Wendall Sampson, Of?cer Lee McCabe, and Ms. Angela McCabe from March 1, 2013 to
present.

RESPONSE: See Bates no. 3545 - 3945.

REQUEST FOR PRODUCTION NO. 13: Produce copies of all communication,
including [but not limited to) cellular phone call logs, regardless of whether the phone is
personal or is owned by the emails; memoranda; and/or informal notes between you
and any third party regarding any formal or informal investigation of alleged improper use
of overtime by Ms. Emily Haney or Captain Alan Haney.

RESPONSE: I do not believe that any such documents have ever existed. I received
the Review Board recommendation concerning Capt. Haneyand made my decision. I do not

Page 3 of 5

believe 1 communicated with anyone about the issue after receiving the Review Board
recommendation.

REQUEST FOR PRQDUCTIOE N9. 14: Produce copies of any communications, in any
format, between you and Maj. Dean Pitts and/or Capt. Larry Rannells regarding the use of
the Van Buren Police Department?s shooting range on or about June 25, 2013, as part of a
group outing for members of the Communications Department.

I do not believe there are any such documents, and they have never
existed.

REQUEST FOR PRQDUCTION NO. 15: Produce copies of all overtime authorizations,

pay stubs, and time sheets for all Communications Department employees from January 1,
2010 to present

RESPONSE: Produced.

REQUEST FOR PRODUCTION NO. 16: Produce copies of the entire investigatory ?le
of all Administrative Inquires, grievances, or similar investigations stemming from citizen
complaints against an of?cer or employee of the Fort Smith Police Department during your
tenure as Chief of Police, including the ultimate disposition of each complaint

RESPONSE: Copies of all such documents are produced herewith.

REQQEST EQB ERODDCTIQN NO. 17: Produce copies of all Word documents, PDFs,

and/ or other documents stored on Capt. Alan Haney?s FSPD-computer hard drive and/ or
FSPD network drive and a network-generated log of all additions or deletions from that
drive occurring between January 1, 2012, and the date of receipt of these Requests.

In keeping with the provisions of Rule 34 of the Arkansas Rules of Civil Procedure, which
requires that a production request shall specify a reasonable time, place, and manner of
making the inspection and performing the related acts, it is hereby speci?c that Lindsey or
representatives of Lindsey shall produce cupies of the documents referred to herein at the
of?ce of Pinnacle Law Firm, PLLC, 212 Center St., 11th Floor, Little Rock, Arkansas 72201,
within thirty [30) days of receipt hereof. Lindsey or his representatives may mail legible
copies of the documents to the undersigned counsel at the address listed above, or all
requested information may be provided via email or cloud storage as long as there is no
alteration of the original electronic ?les (including format thereof) during the upload
process.

RESPQN SE: Produced to the extent that such documents could be retrieved by a
search of the computer completed by Alvey Matlock. A copy of the results of his search of
Capt. Alan Haney's computer is on an external hard drive which is produced herewith.
There is no net-work generated log of deletions.

Page 4 of 5

DAILY P.L.L.C.
P.O. Box 1446

Fort Smith, AR 72902
(479) 782-0361



Douglas M. Carson
Ark. Bar No. 83037

Attorneys for Defendants

CERTIFICATE OF SERVICE

This certi?es that I, Douglas M. Carson, have served a copy of the foregoing
instrument upon all parties of record except those I represent via electronic transmission
and /or by Fed Ex shipment on the 6th day of lune, 2014, addressed to the following:

Mr. Matthew D. Campbell
Pinnacle Law Firm, PLLC
424 w. 4th Street, Suite A
North Little Rock, AR 72114



Douglas? Carson 

Page 5 of 5

B?H?at?' ID

IN THE CIRCUIT COURT OF SEBASTIAN COUNTY, ARKANSAS

 

FORT SMITH DISTRICT
DIVISION VI
DON PAUL BALES, et a1. PLAINTIFFS
v. Case o. (VI)
CITY OF FORT SMITH, ARKANSAS,
et al. DEFENDANT 
AFFIDAVIT OF GEOFF MUELLER

 

Before the undersigned notary public, duly quali?ed and acting for said county and
state, appeared Geoff Mueller, to me well?known to be the af?ant herein, who, having
been duly sworn, states:

1. My name is Geoff Mueller, and I am a Manager of Information Security at Lower
Colorado River Authority (LCRA).

2. My Information Technology background includes certi?cations as an 
Professional Security Tester (OPST), Certi?ed Information Security Manager
(CISM), Certi?ed Information Systems Auditor (CISA), and Certi?ed Fraud
Examiner in addition to my Masters of Business Administration.

3. This af?davit is based on my personal knowledge as well as a review of the
documents and items referenced herein.

4. On July 14, I received via certi?ed mail from Matt Campbell an external hard drive
provided to him by. the Fort Smith Police Department in response to discovery

requests made in Bales, etal. v. City ofFort Smith, et 

Af?davit of Geoff Mueller
Page 1 of 3

 

5.

10.

Mr. Campbell asked me to review the hard drive and determine whether the ?les
looked complete and whether there was anything out of the ordinary about the
contents of the hard drive.
In reviewing the hard drive, I discovered three different, distinct Trojans and a
total of four overall. All four Trojans were located in the ?D:\Bales Court
Order? folder.
The Trojans, and their intended uses, were as follows:

a. Win32:Zbot-AVH rj] Password stealer

b. SIS:Downloader-CC rj] Malicious software installer

c. Two (2) Win32:Cycbot~NF [Trj] - Control and command of infected

computer

Upon informing Mr. Campbell of the presence of these Trojans, he provided me
with information that the Fort Smith Police Department claimed to be running a
secure system with real-time virus and malware protection.
In my experience, if the SPD system is actually as described, these Trojans
would not exist on the system.
Additionally, the placement of these Trojans, all in the same sub-folder and not in
the root directory, means that he Trojans were not already on the external hard
drive that was sent to Mr. Campbell, and were more liker placed in that folder
intentionally with the goal of taking command of Mr. Campbell?s computer while

also stealing passwords to his accounts.

Affidavit of Geoff Mueller
Page 2 of 3

 

11. I returned the hard drive to Mr. Campbell without alteration of any ?les.
However, based on the risk of infection from the Trojans, I advised Mr. Campbell

not to plug the hard drive into any computer.

12. Further, the af?ant sayeth not.

GeoffMueller

6m 
Subscribed and sworn to before me this day of April, 2015.


Notar??gal?lc



 

 

JILL TRAFFANSTE DT
Notosy Puinc. State of Texas
My Commission Expires
May 23, 2016

 

?mural,
?0905

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Affidavit of Geoff Mueller
Page 3 of 3

 

 

State of Arkansas

 

 

 

Mike Beebe
Governor

ARKANSAS
STATE POLICE
COMMSSION

Daniei ?Woody? Futrell
Chairman
Nmbu'?:

Wallace Fowler
Vice-Chairman
jambm

Frank Guinndr
Secretary


Dr. lewis Shepherd
Amps-a

john Allison
Canny

Bob Burns
link Rack

jane Dunlap Christenson
Hm'mt

 

ARKANSAS STATE POLICE

One State Police Plaza Drive Little Rock, Arkansas 72209-4822 

 

WITH PRIDE AND DISTINCTION SINCE 

September 29, 2014

Mr. Daniel Shue

Prosecuting Attorney

'l?welfth Judicial District

Sebastian County Courthouse Building
901 South Street, Suite 209

Fort Smith, Arkansas 72901

Dear Mr. Shue:

This correspondence serves to acknowledge receipt of your
letter of September 8, 2014 and supporting documents directed
to Lieutenant Jason Aaron of the Arkansas State Police
Criminal Investigation Division, Company D.

After thorough consideration, I respectfully decline your
request for investigative assistance. The allegations submitted
for review appear to be limited to misdemeanor violations which
do not rise to a threshold for assigning a case to the CID Special
Investigations Unit.

Speci?cally you have asked the Arkansas State Police to
consider launching an investigation of ?questions raised? from
an unsigned affidavit prepared by Matthew Campbell. The
?questions? arise out of an Arkansas Freedom of Information
Act (ACA ?25? 19- 105) request for particular public records.

Arkansas Code Annotated 25-19-107 states, ?Any citizen
denied the rights granted to him or her by this chapter may
appeal immediately from the denial to the Pulaski County Circuit
Court or to the circuit court of the residence of the aggrieved
party, if the State of Arkansas or a department, agency, or
institution of the state is involved, or to any of the circuit courts of
the appropriate judicial districts when an agency of a county,
municipality, township, or school district, or a private
organization supported by or expending public funds, is
involved.?

Accordingly, Arkansas FOIA law provides legal means by which all parties
involved may resolve the ?questions raised? from the unsigned af?davit as well
as the allegations of tampering with evidence.

Furthermore it appears evidence and testimony associated with these

allegations are already a part of an on-going civil matter before a court of
immediate jurisdiction.

If I may be of further assistance please contact me at (501) 618?8850.

Sincerely,

Mm?!

Major Henry La Mar
Commander
Criminal Investigation Division

Exvherr 

DANIEL SHUE
PROSECUTING ATTORNEY
DISTRICT
F-Ei-iittillt'lr't minim 

scam: it autlE 
FLIHI AMHH oHtt-itl-i'5n151'th1
Ht": 
he: lam. (H. .t 

 

October 1. 2014

Honorable Matthew Campbell
Attorney at Law

424 West 4'11 Street. Suite 
North Little Rock. AR 72114

Re: Request For Investigation

Dear Matt:

Enclosed please ?nd the response that I received this date From the Arkansas State Police
[see enclosure Of course. this is in response to my letter oi" September 8. 2014 tsee
enclosure My ofliee does not have an investigator and the Arkansas State Police are the
only non-Federal law enforcement investigating agency in Sebastian County that is capable of
conducting an outside investigation with regard to the allegations contained in the material that
you provided to me. The other law enforcement agency with jurisdiction in this matter would he
the United States Department of Justice. I believe they might have jurisdiction pursuant to the
Computer Fraud and Abuse Act. 13 the Wiretap Act. i8 U.S.C. 2511; or the
Unlawful Access to Stored Communications Act 18 IJ.S.C. {is 2701. Pursuant to our discussion
when you brought this matter to me. I can forward the information you previously provided to
my office to the United States Attorney. or you may contact him directly. Please let me know
your thoughts.

SWCERELY.


DANIEL 
ATTORNEY
DS:js
Enclosures

 

PINNACLE

LAW FIRM, PLLC

 

Matthew D. Campbell

matt@ pinnaclelaw?rm.com

Tyler Henderson

tyler?pinnsdelaw?nncom

212 Center St.

11?' Floor

Little Rock, AR 7220]
P: (501) 396-9246

F: (501) 421-0139

204 Heritage Dr.

PO. Box 1704

Mm. View, AR 7256i}
P: (870) 269-5??4

F: (388] 979-9145

1901 Cavanaugh Rd.
Fort Smith, AR 72908
P: (479) 259-1436

(By appointment only)

naclelaw?rm.eom



January 15, 2014
VIA EMAIL

Chief Kevin D. Lindsey

Fort Smith Police Department
100 S. 10th St.

Fort Smith, AR 72901

RE: Baler, at at, 9. City chsr-r Smith, at cl., CV-14-0023

Dear Chief Lindsey:

By way of this letter, you and all commissioned of?cers and civilian
employees under your command, direction, or supervision within the Fort
Smith Police Department FSPD are hereby given notice not to
destroy, conceal or alter any paper ?les, electronic ?les, data generated by
and/or stored on FSPD computers and storage media hard drives,
?ash drives, ?thumb? drives, email servers, cloud storage, 
DVD, eth, or any other electronic data, including voice mail. Please be
aware that failure to comply with this notice can result in severe sanctions
being imposed by the Court for spoliation of evidence or potential

evidence.

Through discovery we expect to obtain lit-om you a number of
documents and things, including ?les stored on FSPD computers and
FSPD computer-storage media. As part of our initial discovery efforts, you
and other FSPD employees will soon receive interrogatories and requests

for production of documents, data, and other items.

To avoid spoliation, you will he required to provide all requested
data on the original media or on exact copies of that media ?image

copies, ?evidentiary copies, or ?mirror copies and you must be able

Kevin Lindsey-Spoliation Letter
2014-01?15
Page 2 of 4
to prove that the original matches the copy in every respect. Do not reuse any media to provide
this data. Additionally, you may have to suspend certain normal computer maintenance
procedures, including, but not limited to, tie-fragmenting hard drives, deleting sent or received

email communications, purging old ?les, or running any ?disk cleanup? processes.

Although you are receiving this notice on today?s date, your duty to preserve documents,
?les, data, and other tangible things from destruction arises in law and equity independently from
this notice or any possible ?iture order of the court. Your duty to preserve evidence and potential
evidence arose when you received constructive notice of this lawsuit on January 13, 2014, through
your receipt of Plainti?s? Notice of Intent to Testify. Accordingly, any destruction of evidence or
potential evidence occurring between January 13, 2014, and your receipt of this letter will be

considered to have occurred in bad faith and as intentional spoliation of evidence.

Electronic documents and the storage media on which they reside contain relevant,
discoverable information beyond that which may be found in printed documents. Therefore, even
where a paper copy exists, we will seek all documents in their electronic form, along with
information about those documents contained on the media. We will also seek paper printouts of
only those documents that contain unique information added after they were printed out 
paper documents containing handwriting, signatures, marginalia, drawings, annotations,
highlighting, and/or redactions) along with any paper documents for which no corresponding

electronic ?les exist.

Our discovery requests will ask for certain data on the hard disks, external disks, and other
backup media used in FSPD computers, though some of this data?for instance, deleted ?les or
?le fragments?may not be readily available to an ordinary computer user. In the event we
request such information, you may be required to provide the original hard drives or other storage
media so that our forensic investigator can obtain the requested information, including the dates

of any deletions, modi?cations, or use of ?wiping? programs on those drives.

Kevin Lindsey-Spoliation Letter
2014-01-15
Page 3 of 4
Electronic data and storage media that may be subject to our discovery requests, which

you and all commissioned of?cers and civilian employees of the FSPD are obligated to maintain

without alteration or destruction, include, but are not limited to, the following:

All digital or analog electronic ?les, including deleted ?les and ?le fragments,
stored in machine-readable format on magnetic, optical, digital, or other storage
media, including the hard drives in FSPD computers and all external and/or cloud
based storage utilized by any FSPD employee or contractor, regardless of whether
such ?les have been reduced to paper printouts.

All emails, both sent and received, whether internally or externally.

All text messages and multimedia messages, both sent and received, from any
cellular phone owned, provided, or paid for by the FSPD, the City of Fort Smith,
or any other source of public funds.

All word-processing ?les, whether drafts or ?nal versions, stored on all SPD hard
drives, external storage, or cloud-based storage, regardless of whether such ?les
have been reduced to paper printouts.

All data generated by calendaring, task-management, and personal-information-
management software.

All data created by personal cell phones if that data has been synced with SPD
computers, phones, or similar devices.

All data created by any email-routing software.

All data created by personal computers if those computers have access to the
FSPD ?les through a virtual desktop, virtual network, or similar program.

All voicemail on all telephones or telephone services that the FSPD or any of the
SPD of?cers named as defendants in this matter maintains actual or
administrative control over.

All policies, procedures, and rules regarding records retention and destruction that
have been in force within the SPD at any time between March 1, 2013, and
present.

Further, you are to preserve any log or logs of network use by FSPD of?cers and
employees, whether kept in paper or electronic form, and to preserve all copies of your ?le
backups, whether stored on site or off, so that there can be made a complete, bit-by-bit ?mirror?

evidentiary image copy of the storage media of each and every computer, virtual desktop or

Kevin Lindsey-Spoliation Letter
2014-01-15
Page 4 of 4
network, and network server in your control and custody, as well as image copies of all hard

drives retained by you, but no longer in service, but in use at any time from March 1, 2013, to

present.

You are also to preserve all passwords, procedures (including any software
necessary for network access codes, and any and all other information or things
necessary to access, view and (if applicable) reconstruct the electronic data that we will request

through discovery.

Finally, with regard to any electronic data created after the date of delivery of this letter,
you and all FSPD employees and of?cers are to preserve such data and prevent any destruction of

the same.

In order to ensure that your obligations to preserve evidence will be met, please forward a
copy of this letter to all civil employees and commissioned ol?cers within the FSPD, as 1well as

any person or persons with any custodial rcspon sibility for the items referred to herein.

Sincerely,

 

 

Matthew D. Campbell
Arromqy?ar Plainti?r

Barnes-t \Jr
Lindsey, Kevin (Chief of Police)

From: Lindsey, Kevin (Chief of Police)

Sent: Wednesday, January 15, 2014 2:21 PM

To: Sworn Personnel; Non Uniformed Personnel; Jones, Richard; Rick Wade; Gosack, Ray;
NetworkTeam; Accreditation; Professional.5tandards

Subject: FW: Spoliation Letter

Attachments: 2014-01?15 Lindsey Spoliation Letter.pdf

Importance: High

All FSPD Employees:

Every PD employee receiving this email shall read the attached Spoliation letter dated January 15, 2014 from Matthew
Campbell, attomey on behalf of Don Bales, Rick Entmeier, and Wendall Sampson in the matter of Bales, er al. v. City of
Fort Smith, et al. requiring dissemination to all commissioned officers and civilian employees to retain all documents and
other media that may be sought as evidence or potential evidence in the aforementioned case. Note that on page two
of the letter, a comment that individuals, as well as our Network Team members, may have to suspend normal
computer maintenance procedures, including but not limited to, sent or received email communications,
purging old files, or running any ?disk cleanup processes'."

I expect 100% compliance with the requirements in the attached letter from every member ofthe department.

Sincerely,

Kevin Lindsey
Chief of Police

Vision Statement:

All Members of the Fort Smith Police Department Exemplify Excellence and
Demonstrate Leadership in Fulfilling our Values and Achieving our Mission
Through the Application and Practice of Emotional Intelligence Competencies.

From: Matt Campbell 
Sent: Wednesday, January 15, 2014 2:01 PM

To: Lindsey, Kevin (Chief of Police)

Cc: Tyler Henderson'

Subject: Spoliation Letter

Chief Lindsey,

Attached is a letter that will serve as notice of your duty to preserve evidence and potential evidence in the
matter of Bales, et al. v. City of Fort Smith, et at.

~Matt

BALES v. CITY003069

Exmexc 

FILED
FT. SMITH DIST.

as 
CIR CLERK. SEE 00

IN THE CIRCUIT COURT OF SEBASTIAN COUNTY, ARKANSAS
FORT SMITH DISTRICT CIVIL DIVISION

DON PAUL BALES, et a1. PLAINTIFF
vs. CASE NO. (VI)
CITY OF FORT SMITH, ARKANSAS, et al. DEFENDANTS
0 

New on this 27th day of June, 20l4, this matter comes before the court to consider the
Motion to EXpedite and Motion for Plaintiffs? Expenses. The court having had the opportunity

to review the pleadings ?nds as follows:

1) The Defendant is hereby ordered to comply with the terms set forth in the Court?s
directive from the bench that within thirty (3 0) days of Plaintiffs? receipt of Defendant's
discovery materials, Plaintiffs" counsel will raise with Defendants? counsel any concerns
or questions regarding the completeness of Defendants? discovery responses, which was
apparently omitted ?'om the May 28, 2014 Order.

2) Parties are ?trther ordered and directed to comply with all discovery requests in as
ordered, within 10 days from the ?ling of this Order amending the May 28, 2014 Order.

3) The Motion for Plaintiffs? Expenses will be taken under advisement.

IT IS SO ORDERED.

11%,

JAMES (303:4
SEBAS IAN COUNTY CIRCUIT JUDGE

Cc: Matt Campbell
Doug Carson

 a)

Lab Attendance CPE Form CEIC 2014 Series

Name: Alvey Matlock

(Please print your name, as you would like it to appear on your CPE certificate)

Agency; Fort Smith Police Department

Address: 100 S. 10th

City: Fort Smith

 

Phone: 

State; Arkansas

Please print leginy

Forensic Analyst

 

Zip: 7'2901

Email alvey.matlock@fortsmithpd.org

Country: USA

 

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El EnCase eDiscovery Basics Pt. 2 EnCase Enterprise Basics (tie) El EnCase Plugin Architecture: A New
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El Shaking Up the Security Stock: The Social Media investigation for Civil Solving PCI Discovery Challenges at
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5:19am 4 11:53 AM Page 4

 

    

PINNACLE.

LAW FIRM, PLLC

 

Matthew D. Campbell



I. Tyler Henderson

tyler??pinnaclelaw?rmeom

424 W. St, Ste. A
NLR, AR 72114

P: {501) 3954245

F: (501)421?0139

204 Heritage Dr.

Box 1704-

Mtn. View, AR H.560
P: (8?30) 2695774

F: (sea) 979-9145

1901 Cavanaugh Rd.
Fort Smith, AR 72908
P: (479) 259?1435

(By appointment only}



Exweavr ?4

Iuly18, 2014
VIA ELECTRONIC MAIL

Mr. Colby Roe

Daily Sc Woods, PLLC
58 South 6?1 Street
Fort Smith, AR 72902

Re: Updated Spoliation Letter, Baler, er cl, City, er a1.

Dear Mr. Roe:

As you are aware, Plaintiffs sent spoliation letters to the Defendants
in the above~referenced matter on or about January 15, 2014. Mr. Wade
acknowledged receipt of the same on or about that same date. That letter

provided, inter alto:

Through discovery we expect to obtain from you a number of
documents and things, including ?les stored on FSPD computers
and SPD computer-storage media 

Our discovery requests will ask for certain data on the hard disks,
external disks, and other backup media used in FSPD computers,
though some of this data?for instance, deleted ?les or ?le
fragments?may not be readily available to an ordinary computer
user. In the event we request such information, you may be
required to provide the original hard drives or other storage media
so that our forensic investigator can obtain the requested
information, including the dates of any deletions, modi?cations, or
use of ?wiping? programs on those drives.

While Plaintiffs believe that the original spoliation letter was clear
on its face that the duty to preserve evidence extended to all possible

storage media, I write this updated spoliation letter to explicitly note your

Boles Updated Spo?o?b? Letter
Page 1 of2

clients? duty to preserve all data, documents, facsimiles, and the like contained on the hard drive
or similar storage system of all copy machines, scanners, and fax machines within the SPD,

whether owned by the FSPD or by a third partyr lessor.

I will be issuing a subpoena to the third-part)r lessor for access to the internal hard drives
of the FSPD copier/scanner/fax machines early next week. Please ensure that your clients are
aware that allowing the destruction or deletion of any documents or other data contained on
those drives will be considered to have occurred in bad faith and will be treated as intentional

spoliation of evidence.

 

cc: Rick Wade (via email)
Doug Carson (via email)

Bales Upda ted Spoke tab}: Letter
Page 2 of2

Earhart 

Matthew Campbell 

 

 

Alvey Matlock

 

Dou Carson <dcarson@dailywoods.com> Fri, Aug 1, 2014 at 5:24 PM
To: Matt Campbell 

Mr. Campbell:

Mr. Alvey Matlock will be off work and will be unavailable for the inspection of the FSPD computer
system set for August 5. Please advise me of alternative dates so that we may reschedule. Thank
you.

Douglas M. Carson
Daily 8: Woods. PLLC
P.O. Box 1446

Fort Smith, AR 72901

Tel: 479.782.0361
Fax: 479.782.6160

    



LAW FIRM, PLLC

 

Matthew D. Campbell



424 W. St, Ste. A
NLR, AR 12114

P: (5:11) 396-9246

F: (501) 421-0189



Ezalmeaw 

1August 4, 2014

VIA ELECTRONIC MAIL

lHon. James 0. Co}:

Sebastian County Circuit Court
901 South St.

Fort Smith, AR 72901

Re: Baler, er of. 1). Gig? ochrt Smith, at 1:21., 

Dear Judge Cox:

The purpose of this letter is to ask this Court to order Defendants?
counsel to comply with this Court?s May 28 order, as amended, and
schedule a meeting between Plaintiffs? counsel and Mr. Alvey Matlock for
Tuesday, August 12, 2014, at 9am. A meeting was previously scheduled
for August 5, 2014, but counsel for Defendants canceled at the last
moment, and Plaintiffs have no reason to believe that further dilatory

tactics will not be employed absent some instruction from this Court.

So that this Court Iwill have the proper context for Plaintiffs?

request, a brief recounting of the facts is probably necessary, to wit:

On May 9, 2013, the Defendants in the above-referenced case were
ordered to comply with Plaintiffs? discovery requests within thirty (30)
days of that date. Plaintiffs were then to let counsel for the Defendants
know within an additional thirty (30) days whether Plaintiffs felt that any
requested documents were still missing, in which case counsel for the
Defendants was to arrange for Plaintiffs? counsel and one plaintiff to meet

with Mr. Alyey Matlock of the FSPD information technology department,

Page I of?

so that Plaintiffs could have Mr. Matlock search for speci?c documents and ?les in real time.

On July 7, 2014, Plaintiffs? counsel sent a letter to Mr. Doug Carson, as counsel for
Defendants, via email, notifying Mr. Carson that certain documents did appear to still be missing
and asking Mr. Carson to arrange for a time that Plaintiffs? pounsel could meet with Mr. Matlock

per this Court?s instructions.

On [July 15, 2014, Plaintiffs? counsel spoke with Mr. Carson about the meeting with Mr.
Matlock, and Mr. Carson proposed the afternoon of August 5, 2014], as a time that would work for

Mr. Matlock and Mr. Carson. Plaintiffs? leounsel agreed to this date.

On July 22, 2014, Plaintiffs? counsel contacted Mr. Carson and Mr. Colby Roe via emailed
letter  to inform them that, due to a scheduling con?ict, Plaintiffs? deposition of Mr. Matlock,
which was originally scheduled for August 6, 2014, at 10am, was going to have to be postponed

until a later date.

Mr. Carson emailed a response to Plaintiffs? counsel, stating, assume that
this means there is no meeting with him the day before as well and  that will also be rescheduled.?
Plaintiffs? counsel immediately responded via email and stated, ?Actually, there?s no scheduling

kon?ict with that, so let?s go ahead and keep it as scheduled so that we can get it over with.?

Nothing further was said about the scheduled August 5 meeting, and Plaintiffs assumed as
recently as the close of business on August 1, 2014, that the August 5 meeting was still going to
proceed as scheduled. However, at 5:19pm on August 1, Mr. Carson emailed Plaintiffs? counsel,
stating ?atly, ?iMr. Alvey Matlock will be off work and will be unavailable for the inspection of the
FSPD computer system set for August 5. Please advise me of alternative dates so that we may

reschedule. Thank you.?

Mr. Carson speci?cally picked August 5, 2014 for the meeting with Mr. Matlock, and Mr.
Matlock has had notice of this scheduled meeting since on or about July 15. Why Mr. Matlock is
now suddenly going to be ?off work and unavailable for the inspection? on August 5, despite
Iknowing about that meeting for nearly three weeks, is unclear. Regardless of the reason, however,
Plaintiffs have no con?dence that, whatever new date the parties might agree to, ciounsel for

Defendants will again reschedule at the last moment.

Bales, er a] to Court re Matlock meeting
Page 2 of 3

Therefore, Plaintiffs request that this Court order Mr. Carson and Mr. Matlock to comply
with this Court?s previous order and provide Plaintiffs? counsel lwith access to the FSPD network
on August 12, 2014, at 9am, so that this portion of the discovery process may be completed and

this litigation may move forward accordingly.

Ifyou have any questions about this request, or if I may provide any additional

information, please do not hesitate to contact me.

 

cc: Doug Carson (via email)
Coll];r Roe (via email)

Bales er a! [Jr to Court re Matt'ka meeting
Page 3 of3

Bmevr 

DAILY 8: WOODS

JERRY L. CANFIELD, 13A. A PROFESSIONAL LIMITED LIABILITY COMPANY

 

JAMES E. WEST

THOMAS A. DAILY. PA. ATTORNEYS AT LAW PHILLIP E. NORVELL 
WYMAN R. WADE, PA.
DOUGLAS M. CARSON, PA. KMW BUILDING or UN 
ROBERT R. BRIGGS, PA 1 5? 0 SE
gb?gwog?l?z- AR 72902

. I FAX (479) 732.5150 JOHN P. WOODS (18364976)
1' Also Licensed in Oklahoma JOHN S. DAILY 0912-1987)
I Also [accused In Wyoming North Dakota BEN CORE (1924-2007)

E-mail dcarson@dailywoods.com

August 4, 20 14

via email
Honorable Iames 0. Cox
Sebastian County Circuit Judge
Courts Building
901 South Street
Fort Smith, AR 72901

Re: Don Paul Bales, et al. v. City of Fort Smith, Arkansas, et al.
Case No. CV-14-0023

Dear Judge Cox:

This is to respond to Mr. Campbell's letter to you earlier today concerning the meeting with
Alvey Matlock. We believe that Mr. Campbell is prematurely and unnecessarily asking for
the Court's involvement in the scheduling of this meeting. There was, in fact, a meeting set
by agreement for August 5 with Mr. Matlock to review certain computerized information.
Subsequently, it became necessary for Mr. Matlock to be off work and unavailable on
August 5. We noti?ed Mr. Campbell within hours of learning that and invited him to
contact us about rescheduling the meeting. This was the ?rst rescheduling. The meeting
had not been canceled previously.

We heard nothing from Mr. Campbell until receiving his letter to you. He did not make any
effort whatsoever to schedule a new date or talk with us in any way. Instead, he simply
asked you to order that the meeting take place on a date which he did not clear with us.
Incidentally, the day he chose without consultation is a date on which I am currently
scheduled for an ultrasound procedure relating to kidney issues.

Furthermore, I feel compelled to note that while Mr. Campbell implies that there is
something suspicious about this rescheduling though carefully without making an
express accusation we note that Mr. Campbell, by agreement, had scheduled Mr.
Matlock's deposition for August 6 but that he later notified us that due to his own
unspecified scheduling issues he needed to reschedule the deposition and unilaterally
canceled it. Apparently Mr. Campbell is willing to grant himself leave to reschedule things
which others have agreed to and planned on but simply is not willing to extend that
courtesy to opposing counsel and their witnesses.

Ultimately, this is not a matter in which court intervention is required. We request that the

8/4/14
Page 2

Court take no action other than simply to direct the attorneys to arrive at a new mutually
agreeable date for the meeting with Mr. Matlock. 0 Court action whatsoever is necessary.

We are sorry to have to take the Court's time in reviewing this response, but had no choice
after Mr. Campbell sent his letter.

Sincerely,

636%. 
Douglas M. Carson


cc: Mr. Matthew Campbell

Bil?ha'r a
Grubbs, Daniel gSgt)

 

From: Pitts, Dean (Major)

Sent: Tuesday, August 05, 2014 8:55 AM
To: Grubbs, Daniel (Sgt)

Subject: FW: Tomorrow morning

Major Dean Pitts

 

From: Matlock, Alvey

Sent: Monday, August 04, 2014 6:10 PM

To: Bowers, Anthony (Sgt); Lowdermilk, Brandon 5.
Cc: Pitts, Dean (Major); Barnes, Jared

Subject: Tomorrow morning

Hey guys, I have a doctor appointment tomorrow morning and probably want make it in until lunch.

Tony,

Brandon and i got a jump start on the Forensic Lab inventory audit and clean up. Still lots to do and we can pick back up
around 1pm tomorrow. Brandon also has court tomorrow morning so this should work out.

Grubbs, Daniel SSgt)

From: Pitts, Dean (Major)

Sent: Tuesday, August 05, 2014 10:22 AM
To: Grubbs, Daniel (Sgt)

Subject: Fwd: Discretionary Day

Received this morning.

Sent via the Samsung GALAXY 5? 5, an 4G LTE smartphone
Major Dean Pitts

Original message 

From: "Matiock, Alvey"
Date:08/05/2014 9:06 AM (G 
To: "Pitts, Dean (Major)?

Subject: Discretionary Day

Major,
This is to confirm I am taking today off as a discretionary day.

Thanks

Alvey

Erma-r 

Esq?haw 
I
r;  Matt Campbell 

l7. I. ix [Rio

 

 

AFOIA Request

Grubbs, Daniel (Sgt) <dgrubbs?fodsmiihpdorg> Tue, Aug 19, 2014 at 9:22 AM
To: Matt Campbell 

 

Mr. Campbell,

Attached are the time clock reports from our electronic system. There is very limited
information displayed for salaried employees, in which Mr. Matlock is a salaried employee. The
use of vacation, sick time, military, or discretionary time is entered into the system for salaried
employees. However, it appears Mr. Matlock took a discretionary day on August 5, 2014, and
sent notice to our Division Commander, Major Dean Pitts, but the information was not passed
on to our payroll clerk. The applicable emails have been added, and our payroll clerk has sent in
for an adjustment to City Finance. Any further information regarding payroll would need to be
addressed through the City of Fort Smith?s finance department [payroll], attention Angie Coker:
784-2380.

I consider the release of this information as fulfillment of your FOIA request.

God Bless,

Sgt. Daniel Grubbs

Public Affairs Of?ce

Fort Smith Police Department
Of?ce: (479) 709-5141

Fax: (479) 709-5151

 

From: Matt Campbell 
Sent: Monday, August 13, 2014 3:40 PM

To: Grubbs, Daniel (Sgt)

Subject: AFOIA Request

[Quoted text niclden]

4 attachments

3 Time clock report 2.pdf
246K

:3 Email regarding absence 1.pdf
528K

:3 Email regarding absence 2.pdf
441K

a Time clock report 1.pdf
603K

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