Freshwater: Verrrry interesting

Posted 25 June 2010 by Richard B. Hoppe

(With apologies to Arte Johnson.) A focus of attention in questioning at various times in the administrative hearing has been on 15 affidavits that Freshwater says were prepared in May 2008 as part of his "comprehensive response" to the allegations brought against him during the investigation. Now the provenance--in particular the time of preparation--of those affidavits is at issue. Questions have been raised because in spite of purportedly preparing the affidavits to be used as a comprehensive response in the investigation, in testimony it has been apparent that neither Freshwater nor his attorney ever told anyone of their existence in the spring of 2008 when the affair was being investigated. Moreover, Hamilton has failed to produce his billing records for that period in response to a court order because, he says, he lost his laptop computer ~~in the Flood~~ to a water leak. According to his testimony, Freshwater (already being advised by Hamilton as well as by David Daubenmire) sat passively with the affidavits, waiting for someone to conduct a second interview with him. Now, neither Hamilton nor Daubenmire are passive individuals, so that's just a tad hard to swallow. The first that I recall that we heard about the affidavits was in Freshwater's direct testimony in the presentation of his defense in early December 2008. Prior to that I recall no mention of them and find nothing in my earlier notes about them. Judge Gregory Frost, who is presiding in federal district court over Doe v. Mount Vernon Board of Education (where the only remaining defendant is Freshwater), issued a very interesting order (pdf) yesterday morning, June 24, 2010. In the order Frost granted a request made by the Dennis family's attorney, Douglas Mansfield, to get access to R. Kelly Hamilton's billing records for the period surrounding the time when Freshwater and Hamilton were supposedly putting together the 15 affidavits to be used in Freshwater's second interview with the HR OnCall investigators, the interview that in the end didn't occur. How can Mansfield get access to them when they were supposedly destroyed? Simple: another law firm, Britton, Smith, Peters and Kalail, L.P.A., the firm that represented the Board of Education on behalf of the insurance company in the Dennis suit, has them. Read on for more info and some speculation Recall that Mansfield filed a request for sanctions (pdf) (my post here) with the federal court based on Hamilton's and Freshwater's failure to comply with the court's discovery order that specifically instructed

(3) Mr. Hamilton to provide the Dennises, at least three days before Freshwater's rescheduled deposition, his billing records for anything relevant to the drafting or preparation of Freshwater's affidavits; (italics added)

. In requesting sanctions Mansfield asked that

Plaintiffs further request that the Court enter an evidentiary inference that the 15 Freshwater affidavits, based on Freshwater's failure to produce the billing records, were not prepared or executed in May 2008, as Freshwater contends, but at some later date.

Hamilton told Judge Frost that the billing records were destroyed ~~in the Flood~~ by a water leak that damaged his laptop computer in January 2010. However, the new motion for discovery discloses that copies of Hamilton's billing records for the relevant period have been in the possession of Britton, Smith, Peters and Kalail, the Board of Education's insurance company's counsel. That firm did not provide them to the Dennis's counsel because of the gag order previously issued by Judge Frost. In the order issued yesterday, Judge Frost ruled that providing copies of Hamilton's billing records for the relevant period to the Dennis's attorney does not violate the gag order, and that firm has been ordered to turn over those records to Mansfield. That leads to some very interesting speculations. First, of course, if another law firm had legitimately obtained Hamilton's billing records for the relevant period of May 2008 before they were subsequently lost, Hamilton had to know it because he gave them to that firm. Yet he told the federal court the records were lost ~~in the Flood~~ when his laptop was drowned and he therefore didn't turn them over in compliance with the motion to compel that Judge Frost had issued. Judge Frost is really going to love that. Then recall that Freshwater has claimed under oath in response to questioning by his attorney Hamilton that in May 2008 he and Hamilton prepared the set of 15 affidavits which were to be a "comprehensive response" to the investigation. The affidavits were claimed to have been prepared in May after Freshwater's first meeting with the HR OnCall investigators, with Freshwater and Hamilton meeting "multiple times" to prepare them according to Freshwater's sworn testimony. According to the account Freshwater has given, Hamilton typed them on his laptop and printed them out at Freshwater's church. Freshwater swore to and signed 14 of them at the church on May 25, a holiday weekend, with Hamilton notarizing the signatures, and one was signed by Freshwater and notarized by Hamilton on Friday the 23rd. As noted, Freshwater's signatures on the affidavits, which were entered as exhibits in the hearing and were accessible for our examination on the evidence table, were notarized by R. Kelly Hamilton on the dates mentioned. And then, we are told, at a time when he was being advised mainly by Daubenmire and Hamilton, neither of them shrinking violets, Freshwater sat on them for seven months until his testimony in the hearing in December 2008. He didn't mention them in the course of his direct examination by David Millstone in October 2008, but waited until his direct examination by Hamilton in December 2008. I do not find that even remotely plausible. If those affidavits were prepared in May 2008 I do not believe that they would have remained stashed in a desk drawer until December 2008. That raises a legitimate question about when they were actually prepared. Incidentally, according to his testimony at various times Freshwater was a very busy man for those two or three weeks in May. He taught school every day, listened to the 2 hour tape of his interview with the HR OnCall investigators something like 10 times according to his testimony, typed a transcript of that two-hour tape, met with Hamilton multiple times (almost daily according to one bit of his testimony and "multiple times" according to another bit of it) and participated in preparing 15 affidavits comprising around 45 typed pages. Some Speculation Consider what the state of affairs would be if Hamilton's billing records show that he did not bill Freshwater for time spent in the "multiple" meetings--"almost daily meetings"--interviewing him, nor for drafting the affidavits, nor for making the 125 mile round trip from Grove City to Mt. Vernon for Freshwater's swearing and signing on May 25, 2008, a Sunday on a holiday weekend. It seems to me that we would be looking at the possibility of perjury (Freshwater) and/or subornation of perjury (Hamilton). Those are offenses for which lawyers can be fined, disbarred, and/or go to prison, and for which civilians can be fined and/or go to prison. Freshwater has made the claim about the affidavits under oath on several occasions (for example, see here) and testifed at length about the affidavits in late December 2009:

We then trudged through a long series of questions about the 15 affidavits Freshwater had prepared for the HR OnCall investigators but never submitted to them. Basically, it established that Freshwater and Hamilton met multiple times to prepare them and that Freshwater signed all but one on May 25, 2008, at a temporary office Hamilton had set up at Trinity Assembly of God, Freshwater's church. We also learned that Freshwater could not remember how much time was spent on each. (Italics added)

(See the linked post for more of the testimony.) Hamilton also claimed that work occurred preparing some sort of comprehensive response during that period. In his motion in federal court for reconsideration of sanctions he wrote

During May 2008, John Freshwater and the undersigned worked to prepare and expected to deliver Freshwater's comprehensive written statements to investigators from HR on Call, Inc.

In their original request for a motion to compel, filed December 30, 2009, the plaintiffs asked for (among other things)

Sworn Affidavits: These include at least 15 affidavits, including all electronic copies of these affidavits from counsel's computer, signed by Freshwater regarding his employment or the activities in his classroom during his tenure at Mount Vernon Middle School. (Italics added)

The metadata associated with those electronic copies would have shown when they were created. However Hamilton said he could not comply with that request; his laptop had been discarded and the metadata were lost. (Parenthetically, did anyone else find it a little peculiar that 17 months after the water/computer incident--January 2009 to June 2010--Hamilton had photos of the pipe (pdf) that burst allowing the water leak that wrecked the computer but didn't have a photograph of the flooded computer itself?) Notwithstanding the loss of the metadata, if hard copies of Hamilton's billing records that are now being sought by the plaintiffs show anomalies in Hamilton's billing for time supposedly spent in the "multiple meetings" Freshwater testified to in the preparation of the 15 affidavits in the period preceding May 25, then both Hamilton and Freshwater could be in very hot water with the federal court and potentially also with the administrative hearing referee. The federal case is scheduled to go to trial on July 26, the same day that summary briefs are due to the administrative hearing referee, but my horseback guess is that we will see some fireworks well before then. Bear in mind that this is all speculative at this stage--we have not yet seen the billing records. But I don't doubt that we will see them soon in one legal filing or another in one of the cases now active. When that happens, it's not out of the question that there will be anomalies in them that could cast doubt on the affidavit preparation story. If that's the case, I'm sure that Judge Frost's court and the administrative hearing referee will be officially informed of their contents and implications. And in that event Frost will likely pop a gasket if there's weirdness in Hamilton's billing for the relevant period in May. Frost is already pissed off at Hamilton, and something like that would cause his head to explode.

67 Comments

raven · 25 June 2010

It seems to me that we would be looking at the possibility of perjury (Freshwater) and/or subornation of perjury (Hamilton). Those are offenses for which lawyers can be fined, disbarred, and/or go to prison, and for which civilians can be fined and/or go to prison.

As I said many times, these defendants may yet turn a civil case into a criminal one. Perjury and obstruction of justice are criminal felonies. That is what Kent Hovind did. Tax evasion is normally handled as a civil matter. By the time Hovind was done declaring he didn't have to pay taxes because the federal government had no power and he wasn't really a citizen in any event, he ended up convicting himself for 8 1/2 years. Didn't two lawyers for the insurance company suddenly remove themselves from this case for unknown reasons? Could these be the reasons?

Ty · 25 June 2010

So i'm just wondering what the point of the affidavits is from freshwater's point of view? That he was denied the right to defend himself? Or the HR OnCall was biased against him or that this is all part of "the conspiracy"? what do they prove if the creation/billing info is all correct? Why would they risk perjury for them, are they integral to the case?

Shirley Knott · 25 June 2010

I can't imagine a nicer birthday present than to hear about this.
Thank you so much!

best regards, and
No Hugs for Thugs,
Shirley Knott

Juicyheart · 25 June 2010

And remember, Hamilton claims Freshwater paid him $10,000.00 dollars for those affidavit in Nv 09. Does anyone believe Freshwater would pay that amount and then sit on those affidavits for 6 or 7 months?

RBH · 25 June 2010

Ty said: So i'm just wondering what the point of the affidavits is from freshwater's point of view? That he was denied the right to defend himself? Or the HR OnCall was biased against him or that this is all part of "the conspiracy"? what do they prove if the creation/billing info is all correct? Why would they risk perjury for them, are they integral to the case?

They've been used in several of Hamilton's defense themes--Freshwater didn't get to provide a "comprehensive response," which the affidavits are supposed to represent as having been ready to go, and therefore was not afforded the master contract protections. They provided a vehicle for Freshwater's extended testimony defending himself against specific allegations in the hearing (see my linked post above). They have provided ammunition for Hamilton to suggest that Freshwater was not unresponsive or uncaring or recalcitrant, but rather worked hard on his defense only to be stymied when a second interview was canceled. I'm not sure they're "integral" but they've been referred to quite often

RBH · 25 June 2010

raven said: Didn't two lawyers for the insurance company suddenly remove themselves from this case for unknown reasons? Could these be the reasons?

I suppose that could be, though we have no information whatsoever on that.

Tom Ames · 25 June 2010

I'm a bit new to this story and don't understand the significance of these affidavits and when they were claimed to have been drafted. Can someone help me out?

Tom Ames · 25 June 2010

OK. That's cleared up. Thanks, RBH.

Another question: the affidavits do exist, right, and have been entered into evidence? The only dispute is when they were prepared, is that correct?

RBH · 25 June 2010

Tom Ames said: OK. That's cleared up. Thanks, RBH. Another question: the affidavits do exist, right, and have been entered into evidence? The only dispute is when they were prepared, is that correct?

That's correct. The issue is about whether they were prepared when claimed or were put together later and dated earlier. That issue arises from the several lines of questionable behavior I sketched above.

Samphire · 25 June 2010

did anyone else find it a little peculiar that 17 months after the water/computer incident–January 2009 to June 2010–Hamilton had photos of the pipe (pdf) that burst allowing the water leak that wrecked the computer but didn’t have a photograph of the flooded computer itself?)

Yes, me, as you ask; I commented on it last week. But another point shouts out. In these days of emails constantly flowing back and forth is it conceivable that the drafting of 15 affidavits was not conducted by email? When I have had to swear affidavits in the past it has taken a lot of to-ing and fro-ing by email to settle on the wording of the document. If an affidavit could have been completed in only, say, 3 drafts that would make at least 6 emails per affidavit = 90 emails for 15 affidavits. Presumably, Freshwater has not lost his computer records to a highly directional radiation burst from the general direction of Uranus. But has anybody thought to ask? Lastly, Hamilton also had a desktop computer. Any emails would have downloaded to this machine as well as to the drowned laptop. Perhaps he could be asked to produce this machine for forensic examination of the hard drive.

Juicyheart · 25 June 2010

Just out of curiousity, are the affidavits on line anywhere?

stevaroni · 25 June 2010

did anyone else find it a little peculiar that 17 months after the water/computer incident–January 2009 to June 2010–Hamilton had photos of the pipe (pdf) that burst allowing the water leak that wrecked the computer but didn’t have a photograph of the flooded computer itself?)

Well, I suppose he might have needed a photo as documentation for, say, a claim on his homeowners insurance. Then again, If I thought I might be making a homeowner's claim, I think I'd be more concerned about documenting the ruined ceiling, kitchen table, and laptop, rather than worrying about an 80 cent plumbing fixture. Then again, Hamilton seems to like taking pictures of the little things, pipe fixtures instead of flooded PC's, pictures of nails instead of, say, a car stuck in a parking lot with a flat tire somewhere the driver can't possibly make a phone call to the court to let them know what's going on.

Ryan Cunningham · 25 June 2010

I don't really understand how water damages a hard drive platter. Fry the electronics for the head? Sure. Screw up the electronics for the bus? Yea. But the physics of water causing physical damage to a magnetic device? That seems a bit sketchy. The data should still be there.

Why would you throw the laptop away before escalating the level of professional you took the thing to? If his billing records were on there, I imagine all his case records are on there and all kinds of important documents. I imagine tens of thousands of dollars worth of lawyer-hours went into producing that data. There are forensic data experts all over the place that could replace most data on a damaged hard drive for a few hundred dollars.

If he really threw that laptop away because it got wet, the man is an idiot. There's just no other way to put it. I'd honestly rather believe he was being dishonest.

Ichthyic · 25 June 2010

the man is an idiot. There’s just no other way to put it.

judging from his previous behavior, in court and out, that about sums it up.

I really do hope that THIS time, obvious perjury (just like in the Dover case) will indeed get the punishment it so richly deserves.

ERV · 25 June 2010

I also seriously doubt that a work computer wasnt continually backed up on an external hard drive. Like Ryan said-- Too much money to waste on an inevitable accident (Ive fried so many hard drives over the years, either by accident or by chance). *shrug*

RBH · 25 June 2010

Juicyheart said: Just out of curiousity, are the affidavits on line anywhere?

No, they're not, as far as I know.

Michael Fugate · 25 June 2010

Is it common for attorneys to have all of their billing records on a single computer with no backup?

RBH · 25 June 2010

Samphire said:
did anyone else find it a little peculiar that 17 months after the water/computer incident–January 2009 to June 2010–Hamilton had photos of the pipe (pdf) that burst allowing the water leak that wrecked the computer but didn’t have a photograph of the flooded computer itself?)
Yes, me, as you ask; I commented on it last week.

Ah ha! I sort of thought I'd heard or read it, but couldn't remember where. I should have credited you with the thought. Sorry.

But another point shouts out. In these days of emails constantly flowing back and forth is it conceivable that the drafting of 15 affidavits was not conducted by email? When I have had to swear affidavits in the past it has taken a lot of to-ing and fro-ing by email to settle on the wording of the document. If an affidavit could have been completed in only, say, 3 drafts that would make at least 6 emails per affidavit = 90 emails for 15 affidavits. Presumably, Freshwater has not lost his computer records to a highly directional radiation burst from the general direction of Uranus. But has anybody thought to ask?

As far as I know, all he was asked was if he had hard copies of Hamilton's invoices from that period, and he claimed he did not. Again as far as I recall he hasn't been asked about emails associated with the preparation of the affidavits.

Lastly, Hamilton also had a desktop computer. Any emails would have downloaded to this machine as well as to the drowned laptop. Perhaps he could be asked to produce this machine for forensic examination of the hard drive.

One might hope so, yes. I don't know whether it has occurred, though.

RBH · 25 June 2010

Michael Fugate said: Is it common for attorneys to have all of their billing records on a single computer with no backup?

No. And the judge gave Hamilton a hard time some weeks ago about failing to secure client records.

ralph · 25 June 2010

Ryan Cunningham said: I don't really understand how water damages a hard drive platter. Fry the electronics for the head? Sure. Screw up the electronics for the bus? Yea. But the physics of water causing physical damage to a magnetic device? That seems a bit sketchy. The data should still be there. Why would you throw the laptop away before escalating the level of professional you took the thing to? If his billing records were on there, I imagine all his case records are on there and all kinds of important documents. I imagine tens of thousands of dollars worth of lawyer-hours went into producing that data. There are forensic data experts all over the place that could replace most data on a damaged hard drive for a few hundred dollars. If he really threw that laptop away because it got wet, the man is an idiot. There's just no other way to put it. I'd honestly rather believe he was being dishonest.

When reflecting on the overall issue, you hit the nail on the head with your comment....."Escalating the level of profession." That is exactly the overall problem with Freshwater. He didn't escalate the profession of teaching and, instead diminished it. In hiring Hamiliton, it is apparent that like begets like. Kudos, Dr. Hoppe!

Stuart Weinstein · 25 June 2010

Well it appears Hamilton has a fool for a client and Freshwater has a fool for an attorney.

Wonder what kind of conversations they will have as cellmates.

Rusty Catheter · 25 June 2010

These affidavits, billing records etc. Would they be computer files or actual printouts?

Embedded data in many file formats includes extensive metadata of revision history.

Many modern printers embed data within the page that identifies the printer used and possibly other data like the timestamp. I am certain colour laser printers do, and it is possible that mono printers do something similar.

Rusty

RBH · 25 June 2010

Rusty Catheter said: These affidavits, billing records etc. Would they be computer files or actual printouts?

They're paper documents. While I looked at the documents admitted into evidence briefly, I didn't examine them closely enough to determine whether they were originals printed on a printer or were from a copy machine. That does remind me of a slightly strange sequence of questions during Hamilton's recross of Freshwater. Hamilton asked if Freshwater had ever seen him (Hamilton) carrying a portable printer at the church, and Freshwater said he had. Hamilton then asked if that meant he wasn't restricted to the church's printer, and Freshwater agreed. There had been no mention of that in any prior testimony: It came out of the blue. Perhaps Hamilton was generating some smoke to conceal the possibility of printer metadata.

Embedded data in many file formats includes extensive metadata of revision history.

Yup, but no electronic versions appear to be available since the Flood. I infer (but do not yet know) that the copies in the possession of the Board's attorneys are paper copies.

Many modern printers embed data within the page that identifies the printer used and possibly other data like the timestamp. I am certain colour laser printers do, and it is possible that mono printers do something similar.

See above: smokescreen. :) Added in edit I'll add that when I heard the questions about carrying a portable printer I did actually immediately wonder if they had anything to do with the affidavits. When there was no followup I let that thought go dormant until a few minutes ago.

MikeMa · 25 June 2010

As mentioned earlier, the hard disk's magnetic media would be relatively easy to read by a data recovery company. Send the disk and $1k-$2k or so and in a week or two you get back a dvd with the recovered data and the (dead) disk.

Also, many (most?) color lasers print an id and maybe a timestamp in yellow on every page.

Sure does smell bad for these two loons.

RBH · 25 June 2010

MikeMa said: As mentioned earlier, the hard disk's magnetic media would be relatively easy to read by a data recovery company. Send the disk and $1k-$2k or so and in a week or two you get back a dvd with the recovered data and the (dead) disk.

There was actually testimony to that effect from a forensic computer analyst during the Board's rebuttal case. Hamilton stared fixedly away from the witness during that testimony.

stevaroni · 25 June 2010

Ryan Cunningham said: I don't really understand how water damages a hard drive platter. Fry the electronics for the head? Sure. Screw up the electronics for the bus? Yea.

Water doesn't really screw up low voltage electronics that badly. Fresh water, at least if it's relatively clean, isn't a very good conductor, and circuit components are generally fairly water-resistant to begin with (it's common to wash circuit boards in things that amount to glorified dishwashers at the end of the manufacturing proscess to remove solder flux and the temporary adhesives that hold components in place during soldering). And hard drives are almost hermetically sealed in the first place because dust is such an issue (they do usually have a filtered breather port for pressure equalization, but it's tiny, and you'd actually have to have the drive in a bucket or something to induce some real water ingress. Some small form factor laptop drives enclose such small volumes that don't even have a breather port anymore). I could see where water could infiltrate the display, and cause a lot of grief, and if it got into the battery and shorted things out it could get dramatic, at least briefly. But, providing that the computer wasn't sitting in the sink with the drain stopped when the deluge started up, I'm not so sure I buy the idea that the motherboard or the drive would be easily damaged from just getting rained on. And with those components, it shouldn't have taken much professional help to at least get the data back. (On the other hand, to be fair, if you spun a drive up with water on the platters, it would be very bad, likely causing a head crash. But as we've discussed, it's tough to actually get water into the drive housing, and Freshwater claims the computer is dead, as in disk-no-spin).

RBH · 25 June 2010

One note: It's Hamilton, ex-police sergeant and attorney, who claims the computer was dead and irrecoverable.

Ryan Cunningham · 25 June 2010

stevaroni said: Water doesn't really screw up low voltage electronics that badly. Fresh water, at least if it's relatively clean, isn't a very good conductor, and circuit components are generally fairly water-resistant to begin with (it's common to wash circuit boards in things that amount to glorified dishwashers at the end of the manufacturing proscess to remove solder flux and the temporary adhesives that hold components in place during soldering).

You're absolutely right. My cat spilled a giant glass of water all over my laptop (the one I'm typing on now.) The keys are a little less sensitive. The battery was destroyed. But everything else has worked like a dream for about a year now.

stevaroni said: (On the other hand, to be fair, if you spun a drive up with water on the platters, it would be very bad, likely causing a head crash. But as we've discussed, it's tough to actually get water into the drive housing, and Freshwater claims the computer is dead, as in disk-no-spin).

Exactly. Water isn't going to somehow demagnetize the disk from the outside! Water sloshing over the outside of the laptop isn't going to physically push the head anywhere. And even if it did, the data on there should have been valuable enough to justify spending even a few grand getting it recovered. Even if he didn't see an immediate need to recover the data, it's pretty damn irresponsible to throw out the whole damn laptop. I've got three hard disks sitting around at home from various devices that failed, just in case I need the data on them one day. And I'm a grad student, not a lawyer. This story definitely stinks. Like I said before, my conscience would rather believe that Hamilton is being dishonest than believe a lawyer could be so utterly inept and irresponsible. My estimation of his character will actually be lower if it turns out he's telling the truth.

RBH · 25 June 2010

I've been trawling back through some of the documents in Doe v. Mt. Vernon School District and have picked up a potential problem with another affidavit. In II.A. (page 2) of a document filed by the plaintiffs on May 14, 2010, in support of their motion seeking sanctions against Hamilton and Freshwater, they say that Hamilton claimed to the federal court that he had handed two required affidavits to Douglas Mansfield, the Dennises' attorney, at the administrative hearing on April 30, 2010. The affidavits, one by Hamilton and one by Freshwater, were to have been produced in response to the court's order, and were dated April 22, 2010. However, in the document Mansfield asserts that the affidavits were not provided at the hearing, and writes

Given the pending trial date at that time, the recent oral conference with the Court, and the outstanding discovery issues that needed to be resolved, it is inexplicable that the affidavits (if timely prepared, as Freshwater’s purportedly was on April 22) were not sent far earlier than the claimed hand-delivery on April 30. What is more, Freshwater’s purported April 22, 2010 affidavit reads like a document structured specifically to respond to the arguments raised in the Dennises’ Motion for Sanctions filed on May 7, 2010, not like an independently drafted document. (Compare Def.’s Response, Ex. 3 at 19-20 with Pls.’ Mot. for Sanctions.)

If true, that's another potential example of Hamilton preparing affidavits well after the earlier date he assigns to them.

Samphire · 26 June 2010

My cat spilled a giant glass of water all over my laptop (the one I’m typing on now.) The keys are a little less sensitive. The battery was destroyed. But everything else has worked like a dream for about a year now.

But how's the bruise on the cat's backside?

Rusty Catheter · 26 June 2010

Re the smokescreen...

Why would the smokescreen be effective?

It just means more data, more than one identifiable printer used (perhaps from defects in the printing device, if very old). Possibly more than one set of embedded metadata on the paper.

Modern photocopiers embed data too.

I recall a Doco about twenty years ago where this was discussed and the company flack indicated that enough data is preserved through photocopying to identify not only the printer machine and date of the original, but when and on what machines copies were made.

I realise it may be expensive to apply this level of forensics, but certainly not impossible. I assume the manufacturers assist the court when such data needs extracting, or have supplied the decrytion method to forensics as a matter of course..

Concievably the lawyer involved may have kept a twenty year old printer that had no such tracking, but he doesn't sound that sneaky. Such would not be terribly portable.

Digital photos of pipes will have embedded data. Optical photos will likely have a date stamp from the camera (fakeable by adjusting the date), the photographic stock will have manufacturing dates and the processor will leave encoded dates on the back of the prints (harder to fiddle without your own colour darkroom).

I think the smokescreen would require a lot of effort to make completely effective.

Rusty

RBH · 26 June 2010

I'm not arguing that Hamilton is smart or knowledgeable; in fact he seems pretty inept. But I can't think of another reason for such a guy to be blathering about multiple printers in his situation.

MememicBottleneck · 26 June 2010

Stuart Weinstein said: Well it appears Hamilton has a fool for a client and Freshwater has a fool for an attorney. Wonder what kind of conversations they will have as cellmates.

If there is any justice, they will be talking about tossing salads and going around the world with their travel agent, Mr. Ben Dover.

Samphire · 26 June 2010

An extract from PLAINTIFFS’ REPLY IN SUPPORT OF THEIR MOTION FOR SANCTIONS FOR DEFENDANT’S FAILURE TO COMPLY

Likewise, Freshwater’s response concerning the billing records he was supposed to provide is highly misleading. Freshwater contends he does not have hard copies of the billing records any longer and Mr. Hamilton states he does not have “any computer file containing any metadata related to billing records” for Freshwater, but that inappropriately skirts the question of whether Mr. Hamilton has hard copies of these billing records. (See id., Ex. 3 at 19 ¶ 3, 21 ¶ 4.) We do not know the answer to that question based on his affidavit, but we do know that he has not produced them, as this Court required. Finally, Freshwater continues to hide the ball with respect to the religious materials that were in his classroom. He now contends in his affidavit he has produced everything (id., Ex. 3 at 19-20); but that does not square with his and others’ testimony at the state termination hearing about what was in his classroom and what he removed. Enough is enough. Freshwater’s persistent discovery violations and his responses warrant the imposition of sanctions in the form of evidentiary inferences, costs and attorneys’ fees.

So, Freshwater and Hamilton are both playing hide the thimble. They only reply to specific questions and refuse to be open and honest in their responses. Asked for computer records Hamilton (we say) invents a flood or, at least, if there was a flood the laptop was conveniently directly underneath it. He doesn't say in his reply that although he had a flood which broke his computer herewith attached are paper copies. He doesn't even mention them. Freshwater, on the other hand, is so wealthy that he pays his attorney $10k and immediately throws away the paper invoice as, according to the affidavit, "Freshwater contends he does not have hard copies of the billing records any longer..." admitting that such paper invoices did exist (what does his cheque book stub say against the $10k payment?) Given that Freshwater has charged his property to Hamilton for unpaid fees surely he would wish to keep a pretty good record of payments to him by retaining hard copies? The defence seems to be built of lie upon lie even outdoing the Dover case for terminological inexactitudes by professing christians. When Hamilton eventually tries turning the screws by threatening to evict Freshwater from his farm for unpaid fees doubtless there will also be a turning of worms and the subsequent hearings in Hamilton v Freshwater could prove very entertaining.

Mike · 26 June 2010

How about checking Freshwater's bank records to see when the 10k was paid to Hamilton? I guess it could be argued he delayed payment or something though, so maybe not as useful as I thought when I started writing this.

raven · 26 June 2010

What are these 15 affidavits? IIRC, they are questions and answers with students or former students that show that Freshwater never taught creationism in his classes.

If they are transcripts of actual speech from real people, shouldn't the real people remember when and where they were deposed? Just haul them into court under oath and ask them. Simple investigative/court procedures.

Or I'm confused about what the affidavits cover.

W. H. Heydt · 26 June 2010

raven said: What are these 15 affidavits? IIRC, they are questions and answers with students or former students that show that Freshwater never taught creationism in his classes. If they are transcripts of actual speech from real people, shouldn't the real people remember when and where they were deposed? Just haul them into court under oath and ask them. Simple investigative/court procedures. Or I'm confused about what the affidavits cover.

You are assumimg they'll tell the truth, rather than lie to cover for Freshwater. --W. H. Heydt Old Used Programmer

raven · 26 June 2010

You are assuming they’ll tell the truth, rather than lie to cover for Freshwater.

Yes and no. Hard to imagine all 15 would lie under oath in a court just for Freshwater. Perjury is a felony and he isn't worth it. Even if they do, so much the better. Getting 15 people to lie in a consistent, mutually coherent way is really difficult. That would be a conspiracy and those don't work very often. Likely, in court, there would be 15 wildly different, highly inconsistent versions. Unless they told the truth.

raven · 26 June 2010

I'm wondering how those 15 subjects for the affidavits were picked out.

If they were all rounded up by the churches and all wild eyed religionists, that would be a smoking gun for conspiracy to obstruct justice, another felony.

Maybe rounding them all up and deposing them under oath would turn up some really strange activities. What should be done to get at the truth.

Flint · 26 June 2010

I hope someone can fill me in on simple background. OK, by all apparances Hamilton and Freshwater created some affadavits long after they said they did, and are doing everything they can to hide any audit trail.

But what is the importance of this mis-dating effort? What point is worth risking such penalties, that would be worse than simply admitting the actual dates?

Paul Burnett · 26 June 2010

Ryan Cunningham said: But the physics of water causing physical damage to a magnetic device? That seems a bit sketchy. The data should still be there.

But not for creationists - because creationists are scientifically illiterate (it's a prerequisite), the miracle of water destroying everything makes sense.

If he really threw that laptop away because it got wet, the man is an idiot.

No, he's a creationist. But I'm being redundant.

W. H. Heydt · 26 June 2010

raven said:
You are assuming they’ll tell the truth, rather than lie to cover for Freshwater.
Yes and no. Hard to imagine all 15 would lie under oath in a court just for Freshwater. Perjury is a felony and he isn't worth it. Even if they do, so much the better. Getting 15 people to lie in a consistent, mutually coherent way is really difficult. That would be a conspiracy and those don't work very often. Likely, in court, there would be 15 wildly different, highly inconsistent versions. Unless they told the truth.

I agree that they would all be very unlikely to lie in the same way, but it was still an assumption. IANAL but I think you're overstating the perjury aspect. It CAN be a felony. But it can be a misdemeanor or even a civil charge. If it's civil, there is no risk of jail time, just fines. Furthermore, even when there is blatant perjury, as we've seen in KvD, there is no certainty that the charge will even be brought. --W. H. Heydt Old Used Programmer

RBH · 26 June 2010

Whoa, whoa. The affidavits in question, as the OP says, are Freshwater's. They were prepared, so he says, in May 2008 as part of his preparation for a second interview with the investigators. They cover his responses to various allegations.

W. H. Heydt · 26 June 2010

raven said: I'm wondering how those 15 subjects for the affidavits were picked out. If they were all rounded up by the churches and all wild eyed religionists, that would be a smoking gun for conspiracy to obstruct justice, another felony. Maybe rounding them all up and deposing them under oath would turn up some really strange activities. What should be done to get at the truth.

Something of interest in this context got public notice as a result of draft protests while the US was fighting in Viet Nam. There exists "felony conspiracy to commit a misdemeanor". (And I think I've just dated myself by remembering that issue....) --W. H. Heydt Old Used Programmer

MrG · 26 June 2010

W. H. Heydt said: (And I think I've just dated myself by remembering that issue....)

"An' it's one two three ... WHAT ARE WE FIGHTIN' FOR?!"

JimNorth · 26 June 2010

I'm beginning to think that the flood water was of a special sort...perhaps Hamilton was trying to turn it into wine. There is precedence for that sort of thing. It was wise not to be eating fish on that fateful day.

It makes sense, wine would carry the necessary electrolytes to fry the magnetic memory of a laptop...

Ryan Cunningham · 26 June 2010

Samphire said:
My cat spilled a giant glass of water all over my laptop (the one I’m typing on now.) The keys are a little less sensitive. The battery was destroyed. But everything else has worked like a dream for about a year now.
But how's the bruise on the cat's backside?

Well, it's a MacBook Pro. I think sending him to meet his kitty maker would have been justified. But he's a savannah. He's rambunctious and super-high energy. I couldn't really punish him for just being himself.

Ryan Cunningham · 26 June 2010

RBH said: Whoa, whoa. The affidavits in question, as the OP says, are Freshwater's. They were prepared, so he says, in May 2008 as part of his preparation for a second interview with the investigators. They cover his responses to various allegations.

And they were prepared at Freshwater's home and notarized at his church, right? I think we can say with confidence that if anyone else exists who knows anything about the preparation of these documents, they would most likely be willing to pile on another lie to cover for Hamilton and Freshwater. We've already seen this happen over and over again. I think our only hope of learning the truth is for the documents to surface, as you said in your initial post. But the fact that the court and plantiffs are working so much harder than Hamilton probably indicates what the truth of the matter is. Well, unless Hamilton is just REALLY lazy and doesn't care at all about his professional reputation. Oh. Wait.

stevaroni · 26 June 2010

IANAL but I think you're overstating the perjury aspect. It CAN be a felony. But it can be a misdemeanor or even a civil charge. If it's civil, there is no risk of jail time, just fines. Furthermore, even when there is blatant perjury, as we've seen in KvD, there is no certainty that the charge will even be brought. --W. H. Heydt Old Used Programmer

No, it's unlikely any actual charges will be brought, but if there's one thing that I've taken away from reading the various court decisions I've come across is that judges do not like being lied to. I suppose it's a natural part of the court proscess. judges know that they're going to be lied to (or at least truth-shaded to) and they tend to take it very badly when they detect bullshit (see the adjacent ICR thread for what happens when a judge feels he's being patronized).

anywho · 26 June 2010

Correct me if I am wrong RBH- Freshwater was claiming that the school did not follow procedure according to the Ohio revised Code, regarding investigations. He is saying that they should have gotten a written statement from him and followed up with EVERY witness he identified. He was saying that look I had these 15 affidavits telling my side of things prepared in May of 2008. The school NEVER asked for my written statement, which I was going to give them in a second interview with the investigators. The investigators didn't think they needed a second interview so one never took place. If they had gotten the affidavits they would have followed up with all the witnesses I identified and I would still be teaching today.The school was negligent.
The point Plaintiffs, I think, were making is the school didn't do anything wrong and if in fact these were prepared in May of 2008 it would have shown on the billing records. Which Mr Hamilton and Mr Freshwater say disappeared.
Is this close?????

VJBinCT · 26 June 2010

Time to update the Epimenides paradox: all christians are liars.

DavidK · 26 June 2010

I'm neither a legal nor IRS tax expert, but wouldn't Freshwater be able to claim the $10K on his taxes for some legal defense reason, and possibly other costs? So if he has no proof of those expenses, i.e., no bills, he wouldn't be able to make a claim? Does that make sense? The same for Hamilton.

RBH · 26 June 2010

anywho said: Correct me if I am wrong RBH- Freshwater was claiming that the school did not follow procedure according to the Ohio revised Code, regarding investigations. He is saying that they should have gotten a written statement from him and followed up with EVERY witness he identified. He was saying that look I had these 15 affidavits telling my side of things prepared in May of 2008. The school NEVER asked for my written statement, which I was going to give them in a second interview with the investigators. The investigators didn't think they needed a second interview so one never took place. If they had gotten the affidavits they would have followed up with all the witnesses I identified and I would still be teaching today.The school was negligent. The point Plaintiffs, I think, were making is the school didn't do anything wrong and if in fact these were prepared in May of 2008 it would have shown on the billing records. Which Mr Hamilton and Mr Freshwater say disappeared. Is this close?????

Yup, that's it in a nutshell. Good summary of one of the lines of defense and the relevance of the billing records to its veracity.

RBH · 26 June 2010

DavidK said: I'm neither a legal nor IRS tax expert, but wouldn't Freshwater be able to claim the $10K on his taxes for some legal defense reason, and possibly other costs? So if he has no proof of those expenses, i.e., no bills, he wouldn't be able to make a claim? Does that make sense? The same for Hamilton.

The same thought had crossed my mind--documentation of the invoicing would be necessary downstream. Freshwater has claimed in testimony that his wife takes care of the household's finances. IIRC, in fall 2008 he testified in the hearing to the effect that he didn't know how much it had cost him so far because his wife takes care of that stuff.

Gary Hurd · 26 June 2010

I'm not a lawyer, but I was a private investigator for a while. Even I had to be particularly clear in invoicing lawyers because their fees and expenses were included as part of the judgment against the plaintiff. If the billing was fraudulent, the court becomes a party to fraud. (Yes, yes, but they hate to admit it).

RBH · 26 June 2010

Gary Hurd said: I'm not a lawyer, but I was a private investigator for a while. Even I had to be particularly clear in invoicing lawyers because their fees and expenses were included as part of the judgment against the plaintiff. If the billing was fraudulent, the court becomes a party to fraud. (Yes, yes, but they hate to admit it).

It'll be interesting if one of the judgments awards legal expenses to Freshwater and they can't find the necessary billing documentation. :)

Wesley R. Elsberry · 26 June 2010

And even more interesting if they can, having claimed that they couldn't during the proceedings.

Gary Hurd · 26 June 2010

RBH said: It'll be interesting if one of the judgments awards legal expenses to Freshwater and they can't find the necessary billing documentation. :)

Interesting, but not so interesting that I would ever want Freshwater to win anything. Not even bingo. What will be interesting is Hamilton (I almost wrote Thompson) trying to collect on "reconstructed" billing records.

Gary Hurd · 26 June 2010

(Howdy Wes. Great minds, etc..).

R. · 27 June 2010

The legal system is set up to reduce surprises, but it can't eliminate them. It's not that weird for lawyers to strategically sit on information which they are not compelled to produce, simply to put adversaries off-guard later. It might have been a strategically dumb move in this case, but it's hardly unthinkable.

Relatedly, it might be desirable to keep the plaintiffs busy going after the billing records, affidavits, and so on, if the goal is to raise their costs and distract them from other things. Again, not necessarily a smart or ethical move.

Ed · 27 June 2010

Just a minor point about Hamilton's flood experience. Does he really contend that he "just threw away his laptop" ? I hope he had no other clients at the time-- or at least notified them that any first year computer student ( or anyone who was ever a grad student in a cash-strapped department) could trivially retrieve all their privileged data.

RBH · 27 June 2010

Ed said: Just a minor point about Hamilton's flood experience. Does he really contend that he "just threw away his laptop" ? I hope he had no other clients at the time-- or at least notified them that any first year computer student ( or anyone who was ever a grad student in a cash-strapped department) could trivially retrieve all their privileged data.

Somewhere (I don't recall where) he said that he consulted with his local computer store and they couldn't get it to run, so he did in fact toss it away.

David Utidjian · 28 June 2010

Finally something I have some expertise in (for some definitions of expertise)... recovering data from water damaged computers (desktops and laptops). I have also worked as the network manager for a law firm (50 attorneys, their secretaries, paralegals, and other support staff.)

First... use of computers in a legal setting: From my experience attorneys and law firms are not all that quick in adopting technology. For law firms they considered them as an expense (from the business point of view.) That attitude has changed as the law library resources have moved online, younger generation of lawyers that grew up with computers, email, full-text document searches, and of course record keeping (to name a few.) One of the first things to be automated at the firm I worked at was billing. Everything we did (short of going to the bathroom) was given a client and matter number. One could not make a phone call, use a photocopier, use a fax machine, print a document, nor even search for or open a document without first entering the client-matter number. All of these records were automatically entered in the billing database and backed up nightly. Hard copies of the billing data were printed at the end of business each day. A large part of my job was keeping all of that "infrastructure" working, smoothly, AND backed up.

We had a flood in the server room once (AC unit failed) with no loss of data. The only time our backups were interrupted was when a house-keeper had plugged in a rug cleaner in the hallway outside the server room. It blew the breaker and the servers were on the same circuit. No data was lost... just a partial backup.

From a brief search it appears that Kelly R. Hamilton is not associated with any law firm. I have seen some pretty sloppy lawyers in my time as regards computer use and even ones who were sloppy as regards the legal profession (in my lay opinion) but I have yet to see an attorney who is sloppy about billing. Perhaps KRH is the first.

Laptops at the firm were backed up and all documents and billing records re-synced with the servers as soon as they came back in the office.

Second... on data recovery: I have never had to send out a hard disk to a data recovery service. Either the disk had no essential data on it or it was simply removed from the PC or laptop and connected to a working system and dumped to another HDD either locally or on the server.

I have recovered the HDD from dozens of laptops over the years. Most of them were actually from flooding of some sort. Several were in fires (even the cause of the fire.) Dropped in water, water spilled on them, underneath a sprinkler in a fire, flooded basements, rained on, peed on by pets, overheated, burned from fires, and even broken water pipes. In every single case I simply removed the drive and either put it in a good laptop or connected them via an adapter to a desktop. Early adapters were for IDE interfaces. New adapters are a simple affair that connects via USB cable. Most laptop HDDs are trivially easy to remove (exceptions being some Apples.) Usually a screw or two and in many cases no tools are required at all. The point is that it is easy to do.

I have had hard drives in PCs and laptops fail completely. Most common cause in laptops was dropping the laptop while it was running. The shock causes the heads to crash and really screws things up. I have even had a component on one HDD burn out (it left scorch marks inside the case) but the disk still worked long enough to get the data I needed off of it.

In all cases due to flooding I have been able to get all the needed data off of the disk.

I do not mean to say that some combination of circumstances could not have totally destroyed the data on KRHs disk... perhaps it did. I have heard of people losing disks due to flooding but it has never happened to me or any professionals I know.

Putting this all together: It seems very strange that the "professional" that KRH took his laptop to was not able to recover the data. Nor did that person advise him to try a data recovery service. The data on that disk was worth at least $10K, no?

RBH · 28 June 2010

Many thanks, David!

darv · 28 June 2010

IIRC this broken pipe happened in his home which makes me wonder if this damage was covered and had been paid for by his homeowner's insurance ? I certainly would have been claiming that laptop to the insurance company. Seems to me a copy of a damage claim, listing the laptop, that was submitted to his insurance company would be much better evidence than some photo of a pipe. If the photo of the pipe itself was legitimately from the incident, wouldn't the motivation for having taken it be to back yourself in an insurance claim ? If so, where's the photo of the laptop ?

It seems very strange that the “professional” that KRH took his laptop to was not able to recover the data. Nor did that person advise him to try a data recovery service. The data on that disk was worth at least $10K, no?

The phrase does not compute is all that's coming to me at the moment.

Doc Bill · 28 June 2010

Come on! You use the "dog ate my homework" excuse when you haven't done your homework. I think Ham'ton is doing all this on the fly. Fits his Good Ole Boy style, doncha see! He probably had a major "Ruh Roh!" moment when he was asked for his billing records.

Can't wait to see that boob in a real court go all Buckingham on the judge. Yeah, I've got a real mean streak.

However, I can't help but think that Freshers would still be corrupting little minds if he had only been a bit contrite, a bit apologetic and Oh So Very Sorry to Zach in the very beginning. Maybe even give up his amateur tattoo hobby. But, noooooooo ....

Shebardigan · 29 June 2010

David Utidjian said: Finally something I have some expertise in (for some definitions of expertise)... recovering data...

Here also. As the support person for a geographically dispersed group of sales and engineering personnel, I found myself occupied with recovering data from failed laptop computers at least once per month. The only failure I couldn't recover data from was one in which the disk drive itself suffered a catastrophic loss of Magic Smoke. One wonders what the civil penalties might be in that municipality for improper disposal of an item containing hazardous materials. The owner knew (or ought to have known) that they were present and that the unit could not lawfully be "thrown away".