A judge may deliver a devastating blow to the defamation lawsuit filed against two Menlo Park fire board directors.
John Woodell, married to Councilwoman Kirsten Keith, filed a lawsuit alleging that Virginia Chang Kiraly and Chuck Bernstein told people that Mr. Woodell had vandalized campaign signs during the 2011 Menlo Park Fire Protection District board election, after Mr. Bernstein discovered an uprooted Kiraly campaign sign in his yard lying next to a cellphone that turned out to be Mr. Woodell's.
Mr. Woodell has denied vandalizing the sign.
The defendants filed a motion in April asking the court to dismiss the lawsuit on grounds that Mr. Woodell allegedly destroyed evidence by deleting the contents of his cellphone before they were able to thoroughly examine it.
In a tentative ruling issued last week, San Mateo County Superior Court Judge Lisa Novak agreed, writing that Mr. Woodell allegedly captured data for his own purposes before wiping the phone clean "such that all potentially relevant information retained on the phone was destroyed. ..."
Mr. Woodell's explanation for the data deletion has "evolved" over time, the judge said, and now the phone has somehow been damaged in a way that prevents it from connecting to a charger.
Judge Novak wrote that the court believes Mr. Woodell was clearly thinking about filing a lawsuit in 2011, well before destroying the contents of the phone.
"The Court cannot condone the destruction of evidence, including in anticipation of litigation, particularly when the probative value of that evidence is so heavily connected to the ultimate ability of the Defense to seek and receive a fair trial. As such, the motion for terminating sanctions is granted," she wrote.
The ruling is not yet final. On May 19, the judge heard arguments from all parties and took the matter under submission. If the tentative ruling is accepted, Mr. Woodell would be prohibited from filing the lawsuit a second time.
Seth Rosenberg, the attorney representing Mr. Woodell, told the Almanac before the tentative ruling was made that the motion to dismiss was absurd.
He said the cellphone was wiped as required by company policy on the last day of his client's employment at Google in 2012, and also that the phone had become unstable and needed to be reset.
"We provided literally well over 100 pages in this case of phone records, call logs, cell phone photos, text records, and everything Mr. Woodell could pull off the phone before the phone malfunctioned and required re-imaging. Mr. Bernstein and Ms. Kiraly don't identify one document that they allegedly need but did not get. So, there is no evidence that anything was deleted," Mr. Rosenberg said.
He asked why it took so long to raise concerns about the cellphone. "Why did they say they were ready for trial, but now claim they are not? It doesn't add up."
Mr. Rosenberg said "far more disturbing" were emails Ms. Kiraly sent to the media that allegedly defamed his client from the beginning, but that she didn't disclose. (A footnote in Mr. Rosenberg's court filing states that she deleted the emails before litigation and they were obtained through a third party.)