Madison - St. Clair Record

Wednesday, August 21, 2019

Magistrate rules former MC administrator did not destroy data in Lavite’s suit against county

By Record News | Feb 21, 2018


BENTON – Former Madison County administrator Joseph Parente did not destroy information that veteran assistance Superintendent Brad Lavite needed for a suit against the county, U.S. Magistrate Judge Reona Daly decided on Feb. 15. 

She denied sanctions against the county, Parente, former county board chairman Alan Dunstan, and State’s Attorney Tom Gibbons. 

“Although the files may no longer be in their original form, such circumstance is not necessary for defendants to meet their preservation requirement,” she wrote. 

Lavite alleges that Dunstan and Parente banned him from his office in retaliation for his criticism of their spending, and he alleges that Gibbons approved the ban. 

Lavite also seeks damages from Sheriff John Lakin for enforcing the ban. 

His lawyer, Tom Burkart of Hamel, alleged last August that Parente wiped all information from his county computer before leaving office in 2016. 

Burkart argued that at trial, District Judge David Herndon should instruct jurors to presume that the missing information was unfavorable to the defense. 

Parente denied any destruction, and Daly agreed with him after holding three long hearings in 16 days. 

At the first one, county information technology director Rob Dorman testified that he tried to boot a computer Parente used through August 2016. 

Dorman said it wouldn’t start, so he sent it to Data Tech Labs, which couldn’t recover any data. 

He said that when Parente was issued a new computer, he wanted to copy his old files rather than have a technician do it. 

Dorman further said that Parente never logged on to the new computer, and said there was no copy of files from the old one. 

At the second hearing, Parente testified that on Aug. 11, 2016, a technician set up the new computer and loaded the software where all files from the old one were transferred to the new one. 

Parente said he backed up all files from the old computer on an external drive. 

He said it was in his office desk when he departed. He said he completed a disposal form for the old computer on Sept. 13, 2016. 

He said that before sending it away, he deleted files using software in the county board office. 

“That’s what you’re supposed to do when you get rid of old computers,” Parente said. 

He said he printed all documents relevant to Lavite’s case and turned them over to the county’s safety and risk manager. 

At the third hearing, Dorman corrected his testimony. 

Dorman said Parente logged into the new computer but his profile was deleted, or it wasn’t copied over after a network issue downgraded the operating system. 

He said that after the first hearing, an office employee told him a copy of the new computer was backed up to the county network on Dec. 2, 2016. 

Burkart argued throughout the hearings that it didn’t matter to Lavite who destroyed the information. 

In the end, Daly found he failed to prove destruction. 

“Adverse jury instructions are only warranted upon a finding that the party acted with the intent to deprive another party of the information’s use in the litigation,” Daly wrote. 

“Plaintiff has not actually sought any of the relevant information through discovery, so any attempt to argue that it is now lost is ill considered.” 

She found Parente’s testimony on preservation of his files credible. 

She found that the county has maintained and stored the files of his old computer on his new one. 

“Plaintiff maintains that he does not need any additional discovery prior to taking this matter to trial,” she wrote. 

“Given this posture, plaintiff has no basis to complain of prejudice.” 

She titled her decision as “report and recommendations” rather than an order. 

That means the parties can object but can’t appeal until District Judge David Herndon affirms or reverses her. 

On the same day that Daly ruled for defendants on data destruction, she ruled against them on trial preparation. 

She denied their motion to extend time for discovery and dispositive motions, finding they didn’t demonstrate good cause or excusable neglect. 

She wrote that they had more than eight months to complete discovery and they provided no reasonable explanation for the delay in engaging in it. 

“It is widely accepted that neglect due to a busy schedule is not excusable,” she wrote. 

Herndon has not set trial. 

Dunstan and Parente banned Lavite from the administration building in 2015, after he kicked the windows out of a Wood River police car. 

Lavite challenged the ban in Madison County circuit court, with support from his Veterans Administration doctor and the veteran assistance commission. 

He separately filed suit in U.S. district court, alleging retaliation. 

Current county board chairman Kurt Prenzler lifted the ban after defeating Dunstan in 2016.

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Organizations in this Story

Madison County Madison County Veterans Assistance Commission U.S. District Court for the Southern District of Illinois