Legal Magazine

E-Mail And Arrogance Combine to Take Down Petraeus

Posted on the 11 November 2012 by Rogershuler @RogerShuler

Gen. David Petraeus was perhaps the most high-profile U.S. military figure since Colin Powell and Norman Schwartzkopf became household words during the first Gulf War. Petraeus' distinguished career unraveled with reports last week that he had engaged in an extramarital affair with Paula Broadwell, who co-wrote the general's biography that became a best-seller earlier this year.
A key element of the story surfaced yesterday: FBI investigators became involved when a Florida woman alerted them to harassing e-mails Broadwell had sent to her. The complaint from Jill Kelley, of Tampa, led investigators to Broadwell's e-mail account. And that produced evidence of the affair between Petraeus and Broadwell.
It remains unclear why Broadwell was sending nasty e-mails to Kelley, but reports so far indicate that Kelley and her husband had long been friends with Petraeus and his wife. Published reports point to no signs of a second affair, between Petraeus and Kelley.
The Petraeus story is unfolding by the hour, but we already see a couple of take-home lessons from the affair--and they connect to several of our storylines here at Legal Schnauzer. The lessons?
* E-mail is a stunningly powerful tool for getting at the root of misconduct;
* Arrogance often causes American elites to step in doo-doo that easily could have been avoided.
Let's take a closer look at what regular folks can learn from the Petraeus story:
* E-mail can come back to bite you--Is e-mail the greatest crime-fighting tool ever invented? People who make a living from solving crimes probably would say yes. And we suspect that applies not only to true crimes, but also to civil wrongs and other forms of misconduct where perpetrators clearly do not welcome scrutiny.
We already have addressed this issue by showing that e-mail played a critical role in the National Football League's bounty scandal involving the New Orleans Saints. The very attributes that make e-mail such a splendid communications tool also make it an unmatched weapon for those seeking to proof wrongdoing. E-mail is convenient, and it allows for clear, concise communication that invites back and forth. It also leaves a record that is difficult to erase.
How does that last attribute affect wrongdoers and their protectors? I have an answer to that question from my own courtroom battles. I've been a plaintiff in two lawsuits--one involving my wrongful termination at an Alabama university, the other involving violations of debt-collection laws--and in both cases, federal judges short-circuited the discovery process, contrary to simple civil procedure.
In the employment case, U.S. District Judge William M. Acker Jr. granted summary judgment to the University of Alabama Board of Trustees and various individual defendants without giving me an opportunity to conduct discovery. There was no scheduling meeting, no discovery order, no discovery itself--all of which is required under case law and the Federal Rules of Civil Procedure.
In the debt-collection case, U.S. District Judge Abdul Kallon allowed limited discovery, but defendants dragged their heels on turning over key documents. We notified the court that discovery was far from complete, and that is all we needed to do under Eleventh Circuit precedent to ensure that summary judgment would not be prematurely granted. But Kallon granted summary judgment anyway, essentially allowing unethical debt collectors to skate without turning over evidence against them.
Why would two judges do this? For one, they are in Alabama, where our federal judiciary is notoriously corrupt. (You can ask former Democratic Governor Don Siegelman about that.) Two, e-mails almost certainly exist in both cases that would lay out a digital "paper trail" of wrongdoing. Federal judges, in Alabama and probably many other states, are prone to protect institutional and corporate interests over those of regular Americans. One way they accomplished that against me (and my wife, who was a party in the debt-collection matter) was to unlawfully deny discovery that would have proven our cases. And in the cases of e-mails, the evidence would have been irrefutable.

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