A federal judge ordered Hamilton County on Tuesday to file weekly status reports on whether videos involving criminally indicted former sheriff's deputy Daniel Wilkey were lost in January's "catastrophic data loss" affecting the sheriff's office dashboard camera server.
The data loss caused thousands of Hamilton County Sheriff's Office videos from dashboard cameras to disappear during a Jan. 13 software failure. In an attempt to recover the lost footage, the sheriff's office moved the data from the server to a disc drive and sent that singular copy to a data recovery company in California on Feb. 6, Ron Bernard, director of information systems for the sheriff's office, told the Chattanooga Times Free Press last month. No second copy was created because it would take 10 days to make a new copy and it would "run the risk of failing on fire up," Bernard said.
Ultimately, the drive was returned to the sheriff's office because the footage could not be recovered, though footage that had been preserved prior to the server crash — including Wilkey's — has not been lost, sheriff's office personnel and county attorneys say.
But it's not clear exactly how many videos were preserved, as the county has failed to respond to motions for preservation filed in federal court following news of the server crash in late February. U.S. District Magistrate Judge Christopher Steger said the court won't be satisfied with a simple statement that the footage hasn't been lost.
The data loss came amid several federal civil suits alleging brutality and "forced baptism" of a motorist by Wilkey, and have not yet gone through the discovery phase — when attorneys review evidence they've requested.
Wilkey was indicted in December on 44 criminal charges, including six counts of sexual battery, two counts of rape and nine counts of official oppression. Some of the criminal charges mirror allegations set forth in the civil cases.
The county said it has at least 180 hours of videos stored on an external hard drive that was given to Wilkey's criminal defense attorney Ben McGowan. It wasn't clear whether a copy had been kept for the sheriff's office.
Regardless, attorney Robin Flores, who represents several plaintiffs, said he was aware of around 500 hours that the Hamilton County District Attorney's Office had reviewed during its criminal investigation, something that District Attorney Neal Pinkston requested the Tennessee Bureau of Investigation retrieve after the sheriff's office said it would take them an "inordinate amount of time to copy all the videos."
The TBI completed the task in less than 24 hours, Pinkston said.
He could not confirm how many hours of video were in his office's possession, but said it was voluminous.
Still, Judge Steger called the discrepancy a "pretty big difference" that "needs to be reconciled" to see if there is a difference between the caches of footage.
At this point, he said, he knows some evidence has been lost and that some still exists. But the only people who can clarify are the county's attorneys.
"That is your burden," he told them. "I'm not sure I'm making myself clear enough about this."
County attorneys said no one has yet reviewed the preserved footage to determine exactly how many hours of footage it contains or whether it reflects the incidents involved in the lawsuits. That's because, as county attorney Dee Hobbs noted, the court directed the sheriff's office not to touch the failed server until judges decide whether to appoint an independent forensic data analyst to determine why it failed.
Steger was quick to point out that the preserved videos should not have been stored on the failed server but on an external hard drive.
Exactly how much evidence has been preserved is a great concern for attorney John Cavett, who represents litigants in a class action lawsuit against Wilkey and the county. He said he doesn't know whether 180 hours covers every arrest Wilkey has made, which would be relevant in the class action.
Hobbs fired back, saying the county would "never [fulfill] such a request" to preserve such a large amount of information just for plaintiffs trying to prove the county doesn't provide proper training to its deputies.
But that's not why Cavett would need the footage. His case is a class action, meaning the videos would likely be one of the only ways to determine whether an alleged victim interacted with Wilkey and could therefore join the class of plaintiffs.
The judge said his second concern is public confidence. That is, to verify that the data failure happened in the normal course of business and was not a "deliberate effort by somebody to get rid of evidence."
Even if all of the footage that involves the current plaintiffs was already preserved, it's not uncommon for the county to "realize that we would have to go back" and pull more footage involving other incidents, Hobbs said. But at this point, that is something officials would be unable to do.
Steger said that, if he finds that evidence has negligently been lost, it may lead to sanctions against the county.
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