FORT SMITH -- The city has denied officials sabotaged a hard drive sent to an attorney representing plaintiffs in a lawsuit against the city and called the attorney's motion for sanctions earlier this month a delay tactic.
"By all indications, the motion for sanctions was filed only as a desperate attempt to avoid summary judgment," Fort Smith's attorney, Doug Carson, wrote in a response filed Monday in Sebastian County Circuit Court.
The response was filed in the whistleblower lawsuit filed in January 2014 by former police officer Don Paul Bales and current police officers Rick Entmeier and Wendall Sampson Jr. against the city and Police Chief Kevin Lindsey. Other officers initially were named as defendants but were dismissed from the case March 2, court records show.
The lawsuit is to go to trial in Fort Smith on July 7, according to the records.
Plaintiff attorney Matthew Campbell of North Little Rock requested in his April 10 motion the city be found in criminal contempt, that its answer to the officers' allegations be stricken and the officers be granted default judgment.
The motion said the city gave Campbell a hard drive of documents infected with malicious software, destroyed documents it was supposed to give him and failed to turn over other documents in usable form.
Campbell declined to comment on the response Wednesday, saying he hadn't received a copy of the 37 pages of documents.
Carson also declined to comment on the response.
An affidavit by Fort Smith's senior network administrator, Alvey Matlock, attached to the response said in the presence of Capt. Jarrard Copeland,he took possession of the computer of Capt. Alan Haney,whose email was requested by Campbell as part of his evidence gathering for trial.
Matlock said in the affidavit he made a forensic image of the 2012 and 2014 email on Haney's computer hard drive that named or were about the three plaintiff officers and another Police Department employee. He wrote he ran programs to recover deleted or corrupted email, sorted them into seven files and put them on a hard drive.
Matlock said he gave the hard drive to Copeland, who reviewed its contents. Copeland then delivered it to Carson, who also reviewed the hard drive's contents before sending it to Campbell.
"There was no indication shown in any way that there was any type of Trojan or other 'malware' existing in the external hard drive," Matlock wrote.
In Campbell's sanctions motion filed April 10, an affidavit by Geoff Mueller -- who identified himself as a manager of information security at Lower Colorado River Authority -- stated after checking the Haney hard drive at Campbell's request, he found four "Trojans" in a subfolder and not in the root directory.
The placement of the software in the subfolder, Mueller wrote in the affidavit, "means that the Trojans were not already on the external hard drive that was sent to Mr. Campbell, and were more likely placed in that folder intentionally with the goal of taking command of Mr. Campbell's computer while also stealing passwords to his accounts."
Matlock responded to Mueller's statements, saying he didn't "intentionally place any Trojan, malware or other malicious software on the external hard drive which was furnished to the plaintiffs' attorney."
Such malicious software could have existed on Haney's hard drive and would have been copied along with the other contents, he wrote. That cannot be verified, he wrote, until the city has a chance to inspect and test the hard drive.
Matlock also wrote the malware Mueller said he found was so generic it could have come from many sources and wasn't necessarily installed by city personnel.
"Finally, I disagree with Mr. Mueller's statement that the placement of these supposed malware programs in the same sub-folder and not in the root directory means that they had to be placed there for the purpose of somehow taking control of Mr. Campbell's computer and stealing passwords to his accounts," Matlock wrote.
Campbell complained in his motion he has been unable to gain access to the material on the hard drive because of the presence of the malicious software.
But Carson wrote in the response that Campbell is shown in a video of an Aug. 28 meeting at the police station viewing documents on his smartphone that came from the Haney hard drive.
Carson has asked presiding Circuit Judge James O. Cox for permission to gain access to the hard drive given to Campbell to inspect and test it, the response said.
The response also said Campbell waited nine months to raise the issue of the infected hard drive, after the city filed its motion for summary judgment March 17.
In a summary judgment motion, a party claims there are no issues of fact to take to trial and the case is ready for the judge to make a decision.
The motion in this case has been sealed. Carson said Wednesday it was sealed because it included employment records of Police Department employees and of nondepartment employees that had to be protected.
"It's a very serious motion, and we really believe the judge is likely to grant it," he said.
Campbell filed his motion for sanctions the same day he filed his response to the city's summary judgment motion, court records show. Campbell's response also has been sealed.
In its response, the city also denied accusations by Campbell that officials destroyed evidence they should have turned over to Campbell and gave him documents that were improperly redacted.
The response said the city complied with a request by Campbell for an in-person inspection of documents at the police station Aug 28. Campbell was given a copy of every document he requested, and the meeting ended when Campbell said he had no more questions, the response said.
"Plaintiffs have been furnished more than 10,000 pages of Fort Smith Police Department documents, have been furnished with video recordings and have been given those documents in the format their attorney requested," Carson wrote.
Campbell said in the sanctions motion the Police Department deleted the email account of Maj. Chris Boyd Sr., who retired from the department Aug. 5.
Matlock's affidavit said it is department procedure when an employee leaves the department, his email account be deleted.
"All emails to or from the account of Chris Boyd Sr. were preserved prior to deletion of the account, have been produced and remain available," Matlock wrote.
NW News on 04/30/2015