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Thursday, December 7, 2023

Federal judge to IRS: Explain your lost emails

Former IRS executive Lois Lerner
Former IRS executive Lois Lerner

A federal judge on Thursday ordered the IRS to explain under oath how it lost a trove of emails to and from a central figure in the agency’s tea party controversy.

U.S. District Judge Emmet G. Sullivan gave the tax agency a month to submit the explanation in writing. Sullivan said he is also appointing a federal magistrate to see whether the lost emails can be obtained from other sources.

Sullivan issued the order as part of a Freedom of Information Act lawsuit by Judicial Watch, a conservative watchdog group. He said the IRS declaration must be signed, under oath, by the appropriate IRS official.

“I’m going to hold tight to that Aug. 10 declaration,” Sullivan said.

The IRS says it lost the emails in 2011 when Lois Lerner’s computer crashed. At the time, Lerner headed the IRS division that processes applications for tax-exempt status. She has since retired.

Lerner, who refused to answer questions at two House committee hearings, has become a central figure in several congressional investigations over the handling of tea party applications. At both hearings, Lerner cited her Fifth Amendment right not to incriminate herself.

IRS Commissioner John Koskinen has testified on the lost emails before Congress at least three times. Each time he was under oath.

Koskinen said he first learned there was a problem with Lerner’s computer in February but didn’t learn that emails were lost until April. The IRS notified Congress June 13.

Judicial Watch lawyer Ramona Cotca complained that the IRS never informed her group or the court about the lost emails, even though Sullivan had ordered the IRS to produce documents related to the information request on a monthly basis.

Geoffrey Klimas, a Justice Department lawyer representing the IRS, said the agency had no legal obligation to tell Judicial Watch about emails that may have been destroyed two years before the group filed its request for information.

Judicial Watch filed a series of requests with the IRS shortly after the tea party controversy erupted in May 2013. Among its requests, the watchdog group wanted communications Lerner had with others concerning the handling of applications for tax-exempt status since Jan. 1, 2010.

Judicial Watch filed a lawsuit against the IRS in October, saying the agency didn’t produce any documents. Since then, the IRS started to produce some documents in February, Cotca said.

On Thursday, Cotca asked Sullivan to conduct a limited discovery to determine what happened to the emails, perhaps compelling testimony from IRS officials. But Sullivan said that would be premature.

Klimas noted that the tax agency’s inspector general is conducting an investigation into the lost emails. Klimas said the inspector general has asked the IRS not to question witnesses that may have information about the lost emails to avoid interfering with its investigation.

Sullivan said the sworn IRS statement should include information about the inspector general’s concerns.

Sullivan said he would assign federal magistrate John Facciola to look into ways of obtaining the IRS records from other sources, though it is unclear how much information could be recovered.

In 2011, the IRS had a policy of backing up emails on computer tapes, but the tapes were recycled every six months, Koskinen told Congress. He said Lerner’s hard drive was recycled and presumably destroyed, after technicians in the agency’s criminal investigations unit tried unsuccessfully to restore it.

The IRS was able to generate 24,000 Lerner emails from the 2009 to 2011 period because she had copied in other IRS employees, Koskinen said. As part of the congressional investigations, the IRS said it is producing a total of 67,000 emails to and from Lerner, covering the period from 2009 to 2013.

IRS lawyers are due back in federal court Friday before a different judge for a hearing on the lost emails in a separate lawsuit filed by a group called True the Vote. The group, which says it advocates for the integrity of elections, sued the IRS over delays in its application for tax-exempt status.


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2 thoughts on “Federal judge to IRS: Explain your lost emails”

  1. I guess the judge has never had a computer crash. Probably doesn’t even use email. He’s acting like there were boxes of printed emails somewhere , that somebody shredded. Never happened. They were just millions of bits of 0’s and 1’s on a hard drive. When (not “if”) the drive crashes, they can be unrecoverable. If you never made backup copies, they are just gone.

    The real question is why those emails were not all backed up on her email server? A laptop is a pretty ephemeral device to keep permanent records on. The people running the server can decide to back everything up, and keep those backups for as long as they want. The judge should be talking to them, not some end-user.

  2. This seems like such a witch hunt because the courts don’t have a clue on the technology.

    I’ve helped corporations put together collections of pertinent e-mails for lawsuits. Typically, what happens is we’d define the dates to be examined, based upon the lawsuit’s parameters, and then notify everyone who might have even peripherally been involved to stop deleting e-mails. The systems guys would set up separate servers for those folks and never delete anything – basically exempting those servers from standard company retention protocols. This didn’t happen until a lawsuit’s discovery process was initiated.

    We’d also identify long-term backups to be retrieved from off-site storage and restored to special servers.

    fwiw: the company had a policy that quarterly backups were to be stored for a defined period of time off-site. Since magnetic tapes had a limited life, this was typically for a max of a year or two. The purpose of the off-site storage was for emergency business recovery in the event of a major disaster. It was not for lawsuit discovery processes. If it provided info for a lawsuit, well and good, but there was no guarantee the info would be available for legal purposes.

    Eventually, once we thought everything that could possibly be pertinent was on the special e-mail servers, we’d take backups of those servers, using specified backup software, and ship the tapes to a company that specializes in sifting through all the suspect e-mails. These companies would do their magic and relay the info to the law firms involved.

    I have no clue what the process was for the IRS, but I’d be exceedingly surprised if they exceeded the requirements that private companies use for business continuity planning.

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