Creatures of the Dark: Wisconsin GOP Caught Deleting Records, Again

New federal court filings allege that hundreds of thousands of Republican redistricting files in Wisconsin were deleted last year, in defiance of court orders to turn over all documents. The deletions fit into a pattern of the Wisconsin GOP covering their tracks and could result in sanctions for the attorneys or individuals involved in deleting the files.

Wisconsin Senate Majority Leader Scott FitzgeraldAccording to the April 18 court filings, a forensic analysis of computers used during redistricting indicates multiple files were deleted just after Republicans were instructed to turn them over to Democrats -- but before they had actually done so.

In January 2012, after the three-judge federal panel hearing a Democratic challenge to the redistricting maps ordered Republicans to produce all redistricting-related records, someone with the user name of an aide to Senate Majority Leader Scott Fitzgerald logged-on to GOP computers and deleted files and folders. In July, just after Democrats took control of the state senate and asked for the entire redistricting folder, another Fitzgerald aide's login was used to delete hundreds of thousands of records.

Though the legal challenge to the redistricting maps was resolved over a year ago, mounting evidence of deleted files and possible misrepresentation by Republicans and their attorneys led the court to order a forensic analysis of the computers to recover deletions and assess the level of wrongdoing.

The entire redistricting process has been marked by an unprecedented level of secrecy. And the stakes are high for the Republican legislature's law firm, Michael Best & Friedrich, whose lawyers have been sharply criticized by the court for their handling of the case. Republican National Committee Chair Reince Priebus is a partner at the Wisconsin-based firm, though he is currently on leave while he leads the RNC.

"Shameful" and "Needlessly Secret" Redistricting Kept Public in Dark

With Republicans in charge of the Assembly, Senate, and Governor's mansion after the 2010 election, they had the legislative majority to gerrymander congressional maps to their party's benefit, and did so in the offices of Michael Best & Friedrich, apparently to try and keep the process protected under attorney-client privilege. The maps were promptly challenged by immigrant rights group Voces de la Frontera, and the federal court hearing the case sharply criticized Republican lawmakers for conducting redistricting under a veil of secrecy and shutting the public out of the process, calling it "shameful," "sharply partisan," and "needlessly secret."

In December 2011, the court demanded that Republicans turn over nearly all documents related to redistricting, but the GOP and their lawyers at Michael Best & Friedrich continued working to keep the material confidential -- leading the court to fine the attorneys $17,500 in fees for filing frivolous motions.

As the federal court ruled on Wisconsin's maps in February of 2012, the Center for Media and Democracy (publishers of revealed that the American Legislative Exchange Council (ALEC) had invited legislators to redistricting conference calls, based on emails obtained through earlier open records requests to Senate Majority Leader Scott Fitzgerald.

The emails CMD obtained were not released to the lawyers challenging the maps. But they should have been. This failure to release all redistricting-related documents opened a new round of legal wrangling, with the court questioning what other documents Republican legislators and their lawyers had kept secret. Additional documents that should have been produced were found when Democrats took control of the state senate after the July 2012 recall elections and obtained access to the Republican redistricting file.

In February of 2013, the Court ordered Republicans to turn over computers used in redistricting for expert forensic analysis, because judges found that "fraud, misrepresentation, or misconduct" likely occurred.

According to the April 18 court filings, the analysis so far indicates files were deleted on at least two separate occasions: on January 6, "just after the Court's order [to turn over the documents] and just before the legislature's supplemental production," and on July 25, which was one week "after majority control of the state senate shifted [and] the new majority leader requested Michael Best's redistricting file," and one week before "Michael Best turned over its redistricting file to the new senate majority leader."

Fitzgerald ORR response

In other contexts, CMD has encountered patterns of Republican legislators deleting files, thanks to a loophole in the state open records law exempting legislators from records retention rules that apply to all other government officials. Sen. Fitzgerald -- whose office is at the center of the redistricting litigation -- in the past had released hundreds of documents in response to requests for ALEC-related records, but is now issuing replies like this one to a records request for ALEC communications: "If we did receive materials (from ALEC), either electronically or via mail, those materials were discarded upon receipt."

Taxpayer Costs of Defending Secrecy Continue to Rise

Recent court filings show that over $100,000 has been spent on the initial stages of the forensic analysis, largely because of the complexity of reconstructing deleted files. Wiping software that could have been used to remove electronic data and hide deleted files had been installed on some hard drives, further complicating the reconstruction. According to the court filings, two-thirds of the costs moving forward will be incurred in locating and reconstructing the deleted files. "Had data not been deleted, the investigation could proceed at a fraction of the cost," the filings state.

Plaintiffs are seeking to have the legislature -- or its attorneys -- cover the cost of the examination before continuing.

So far, taxpayers have been on the hook for at least $2 million in legal fees to defend the GOP's "shameful" redistricting effort, and costs will likely continue to rise.


People of Wisconsin voted these Republicans into office! This is what you get! Fitzgerald should go to Jail,but nothing will change until the State has enough smarts to put a stop to their agenda....

Idiot. Not everyone in WI voted for these slime balls. Nearly half the state is opposed to the current government and is not happy with the way things are progressing. We're working to change things, but the Republican money machine makes it difficult.

It makes me laugh, my Republican relatives will still defend these idiots to the bitter end. Even though they are costing them millions that could have been spend on better salaries for teachers, hiring more police and firemen. There was a time when Republicans were good and honest in Wisconsin (remember Lee Dryfus?) longer though!

Yes, the people of Wisconsin need to wake up, organize, more, etc. But they shouldn't need to vote on what happens to lawyers who fail to direct their clients to impose a litigation hold on relevant documents, or those political flunkies who may have done the actual obstruction of justice. If the federal judges respect the system, they should ask themselves whether anything short of criminal contempt sanctions would be adequate.

The people of WIs. did not vote for any of these jerks. ALEC and the koch bros. and the devos family got them in through gerrymandering, suppressing votes, rigging the machines, all with twit romney's help. So don't be blaming us voters for this shit. We hate them more than you do.

...a client is entitled to zealous advocacy but not fraud. Deleting files after an order to produce is conduct unbecoming a lawyer. Anyone can file a complain with the Wisconsin bar and should do so. If Michael Best & Friedrich were involved, the partnership should cease to exist.

Shame on these guys, and why are they not being held accountable? Why are they getting away with this crap?

As a seasoned veteran of the computer industry, and having worked in government. This all seems a little suspicious. First of all, nobody has ever heard of backups? Where were these computers? If they are on gov't networks, they are backed up. If it came via e-mail, that email was backed up. This sounds like normal BS with both sides covering something. I'm calling hogwash on this.

It's obvious you've never worked for Wisconsin government. There isn't any auto backup, it's entirely at the individual's discretion. Some computers/servers, say at DOA are probably backed up automatically, but for individual offices, sorry, no. Same goes for email. There are three tiers. Employees of the state are required to keep certain emails for up to two/three years, some for a year and some others for only six months (I'm not certain about the exact time frames). And again, it's totally up to the individual. The only way anyone would get caught not following the email procedures would be if they were summoned with a FOIA request and didn't have emails accordingly. Sounds to me this is the case here. But I will reserve judgment because I know exactly how screwy/scary Wisconsin government is.