Employees in the Garden City Community College Information Technology department who claim GCCC administration did not tell them about litigation-hold notices delivered to the college in early June say had they known about the notices, they would have changed their routine data deletion practices.
A litigation-hold notice is a routine order for a party to preserve documents relevant to potential litigation.
On July 20, GCCC suspended IT coordinator Andy Gough, network manager Andrew Knoll, and technician David Larsen indefinitely with pay and started an investigation into the college IT systems after discovering irregular monitoring of several employee email accounts. The three have since retained attorneys, although college officials have said they were suspended to ensure the integrity of the investigation and that it wasn't done as a discipline measure for any presumed wrongdoing.
Gough, Knoll and Larsen said they first heard about a June 8 litigation-hold notice that was sent to the college when they retained attorneys Jean Lamfers, who had issued the notice, and Robert Lewis. Both attorneys represent several community members and GCCC employees at odds with the college.
Lamfers sent the litigation-hold notice to GCCC attorney Randy Grisell. She later provided a copy of the notice to The Telegram.
Grisell said he gave the notice to GCCC President Herbert Swender and Vice President of Administrative Services Emily Clouse, including instructions to pass it along to any employee even remotely involved in the issues described in Lamfers’ hold. The notice references possible litigation regarding two of Lamfers' clients, former host parent Toni Douglass and former GCCC volleyball player Shaney Tiumalu, as well as accusations made in an extensive report by the Faculty Senate, which detailed long-held faculty grievances at the college, particularly with Swender.
Grisell said Lewis Brisbois, a firm that acts as GCCC’s insurance counsel, submitted a similar litigation-hold notice to him, which he also passed along to Swender and Clouse. At the request of Lewis Brisbois, Grisell said he asked Swender and Clouse to sign verification of their acceptance and compliance with the latter notice, which he passed along to the firm.
Lewis Brisbois attorney Jordan Ford confirmed she sent a litigation-hold notice to the college on June 6, but could not comment further on the case or the notice. Lewis Brisbois attorney Alan Rupe said the notices should be sent to anyone who may have relevant information about a case. Whether that included an institution’s IT department depended on the case, though the current technological climate meant it was not uncommon, he said.
Gough, Knoll and Larsen said they were never notified by anyone at the college about either litigation-hold notice.
“We were definitely in shock. I was in shock. I had not heard anything about it. You know, that’s a legal issue. I have no interest in getting involved in that,” Knoll said. “If I would have known about that, I would have done everything in my power to hold documents and emails, every possible item we’re in charge of.”
On July 25, Lamfers and Lewis sent a second litigation-hold notice to Grisell and Christopher McElgunn, Swender’s personal lawyer, announcing they anticipated litigation against GCCC and Swender grounded in unlawful employment practices and defamation and stating that all documentation relevant to the three employees should be preserved. Lewis later sent a copy of the notice to The Telegram.
The college’s IT systems include several instances of routine data deletion, Gough said. Security footage, deleted GCCC emails, documents and file backups are automatically deleted after 30 days, and financial data systems and undeleted emails are lost after a year, he said. Had they known about the litigation-hold notices, Gough said, the department would have adjusted the system’s retention settings to preserve all data for longer periods.
The notices do not call for the preservation of all documents and data, only that which is relevant to specific cases, including those outlined in Lamfers’ notice. Gough, Knoll and Larsen said they do not know what kind of information was automatically deleted or overwritten, but were concerned about what could have been lost on their watch and why they were not asked to change system settings to be safe.
“There’s always a possibility (the lost data) could have been relevant. But the fact of if it was relevant is kind of irrelevant because of the litigation hold. It doesn’t matter what the information is, you’re not to get rid of it,” Larsen said.
Gough said as a matter of normal practice, IT department employees also destroy hard drives from defective laptops and desktop computers, printers, servers and other campus machines for privacy and security reasons, crushing them with a hydraulic press past the point of use or inspection.
Larsen said that several weeks ago, he instructed an intern to crush more than 75 hard drives. When he found out about the notice, it was the first thing he thought of.
“My stomach almost dropped … That’s a big deal. That’s on my shoulders now,” Larsen said.
Gough said the crushed drives included those from a large system replacement in November, meaning among the lost information was a complete backup of at least seven years of the college’s data up to that date. However, that data was transferred to the current system and still should be accessible, he said.
Lamfers said she and Lewis could have used the destroyed backups to compare the old and new systems for inconsistencies or unauthorized changes.
Clouse did not confirm whether she or Swender sent the notices to the IT department, but said in an email that GCCC computer network servers, including records of emails and files, are continuously backed up to the off-site data storage company Datastor. She said the college notified Datastor of both litigation-hold notices and that the company has implemented a special retention process in light of the information.
Grisell said the IT department needed to be notified if it was related to any issues addressed in the notices, but added that the implication that them being left out led to the destruction or loss of evidence was “total speculation.”
He said to the best of his knowledge, any information relevant to the litigation-hold notices was maintained, is available at the college and would be produced in the event of litigation.
In the notice, Lamfers notes potential cases involving Douglass in regards to a no-trespass notice the college issued to her, and Tiumalu, regarding alleged issues with an athletic scholarship and sanctions against the school’s volleyball team.
GCCC issued Douglass a no-trespass notice that barred her from campus and college events in May due to alleged misconduct toward a GCCC employee. At the time, Douglass said she thought the action was in response to her addressing the Board of Trustees about sexual harassment allegations against former cheer coach Brice Knapp. The college rescinded Douglass' no trespass notice on July 27.
Tiumalu lived with GCCC Athletic Director John Green for free the summer of 2017, which violates Kansas Jayhawk Community College Conference and National Junior College Athletic Association rules. As a result, the GCCC volleyball team was put on probation and had to forfeit its wins from the 2017 season, lost two scholarships for each of the next two seasons and was banned from postseason play next season.
Lamfers said college records pertaining to those cases, as well as to allegations made in an extensive Faculty Senate report presented to the college Board of Trustees in May, should be preserved because “these matters are likely to be litigated, whether by my clients or by parties represented by other attorneys.”
The Faculty Senate’s 28-page report outlined several years of allegations against Swender, accusing him of bullying, intimidating, sexually harassing and retaliating against college employees. It alludes to Swender, Douglass, Green, Knapp, the Board of Trustees, scenarios regarding named and unnamed faculty and staff members, National American University and Higher Learning Commission accreditation, among other subjects.
Lamfers asked for a hold to be placed on any documents relating to possible litigation of Douglass’ case, documents connected to Tiumalu’s “athletic department activities,” registration, scholarship, bursar and dormitory records, and any records connected to “any issues raised” in the Faculty Senate report, including cheerleaders’ sexual harassment allegations against Knapp.
Lamfers specifies many forms of electronic and media-based documentation in the notice, including DVDs, CDs, videotape or digital surveillance materials, hard and floppy disks, backup tapes, voicemail, audio recordings, texts, social media communications, computer text and video files, electronic documents, mail data and browser data.
If the college did not comply with the hold, it could face court sanctions for spoliation of potential evidence, Lamfers wrote in the letter. Lewis said a violation of the notice could “prejudice” the college in any potential litigation.
Lamfers’ notice to the college also claims that “shredding activities are going on” at the college, which she said referred to rumors at the time of subjects on campus disposing of documents after hours. Lamfers said she and Lewis met with Grisell on June 15 to discuss the rumors after clients claimed the alleged activity was persisting regardless of the June 8 notice. After the meeting, she said, she and Lewis assumed the college was preserving and maintaining documents as ordered.
Grisell said he has spoken to employees at the college and is satisfied that no GCCC employee intentionally destroyed any records pertaining to Lamfers’ litigation hold.
Swender did not respond to calls and an email requesting comment. His attorney, McElgunn, said in an email that Swender had no comment.
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