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Did February 2009 Litigation Hold Order Prevent Deletion of Benda E-mails?

Lawyers for Mike Rounds, Dennis Daugaard, and other subjects of Jeff Barth's legal action to stop destruction of EB-5 records filed their responses this week. The defendants contend that Minnehaha County Commissioner Barth has no standing, there are no records, yadda yadda.

Commissioner Barth's lawsuit is a legal longshot. But it has already produced some results worth discussing. First, Assistant Attorney General Roxanne Giedd says she has issued litigation hold letters to state agencies that may have records related to the state's EB-5 program. That means that, thanks to Barth's legal action, the Governor's Office of Economic Development, the Board of Regents, the Attorney General's office, and others will hang onto valuable information in the EB-5 case, which now stretches back ten years.

Northern State University counsel John Meyer tells the court that AAG Giedd's litigation hold isn't necessary to keep Regental docs locked up; he says that the Regents and NSU are already preserving documents related to EB-5 because of their ongoing litigation in Darley v SDIBI. Meyer issued a litigation hold to NSU chief information officer Debbi Bumpous after learning of the Darley litigation that EB-5 chief Joop Bollen had concealed from NSU for months. The Meyer hold went out on February 10, 2009.

Now let's slow down and think for a moment. A county commissioner files a lawsuit to preserve state EB-5 records. The AG's office immediately issues orders to preserve relevant state EB-5 records. Those orders likely go out to the offices directly involved with EB-5, including the Governor's Office of Economic Development.

In January 2009, the state found out Darley, a California company, had taken it to court over EB-5. NSU's lawyer sent out an order to his campus's computer gurus to preserve EB-5 documents, but NSU wasn't in charge of EB-5. Meyer says GOED ran EB-5. Meyer would surely have wanted GOED to hold any documents that could help him and the Regents fight off the Darley litigation. If Meyer lacked the authority to issue such a litigation hold to GOED, surely the attorney general could have issued that letter. Meyer corresponded with the attorney general's office about Darley in early February 2009, before issuing his February 10, 2009, hold order to NSU's CIO. An AG's office doing its due diligence would have joined Meyer in preserving all relevant documents, which leads to the logical conclusion that Jeff Hallem, the assistant AG corresponding with Meyer, would have issued a letter like Giedd's to GOED.

And if GOED got a litigation hold letter like Meyer's in February 2009, and if that hold is still in effect for GOED as Meyer's still is for NSU, then someone, somewhere, should have a thumb drive or tape or box of papers preserving any EB-5-related e-mails that GOED would have sent or received. That drive/tape/box would include the e-mails of then-GOED director Richard Benda.

Governor Daugaard's office said last month that it had deleted GOED Secretary Benda's e-mail account perhaps as early as February 2011, after Benda left state government.

By this reasoning, we may conclude either that Governor Daugaard's office misinformed us or that at some point in early 2011, the Daugaard administration erased e-mails that would have been subject to a litigation hold order.Meter's February 10, 2009, litigation order would have preserved any e-mails Secretary Benda sent to Bollen on the NSU servers. Whether Benda's entire e-mail archive is still available depends on the answers to these two questions:

  1. Did GOED receive a litigation hold order in 2009 pertaining to the Darley lawsuit?
  2. Did GOED follow that order?


  1. mike from iowa 2014.10.25

    Jackley said to preserve "relevant" information. Who decides what is relevant? Relevant to whitey wingnut could mean exculpatory evidence supporting Rounds and nothing else. Then there is still the stuff Bollen waltzed off into the night with from NSU.

    This whole wingnut cabal is so fiercely partisan that a special,independent prosecutor should have been brought in on day 1 and given subpoena power and a mandate to get to the bottom of this stinking mess if it takes forever.

  2. Tim 2014.10.25

    South Dakota is Rounds and Daugaard's personal playgrounds, they can do what they want, don't believe me, watch what SD voters do in 10 days.

  3. Jim 2014.10.25

    Costello and his staff could easily produce all the emails exchanged between benda and his office. As could the regents.

  4. larry kurtz 2014.10.25

    Is this a petition and not a lawsuit, Cory?

  5. lesliengland 2014.10.25

    of course joop delayed preservation until he got caught "defending" the state. as soon as AGS, NSU & REGENTS lawyers were alerted they would have that obligation. deletion of benda emails in 2011 means intentional monkey business, of course unless rounds did not know anything!! what about joop's emails as a state employee or doing state business? erased too?

  6. Francis Schaffer 2014.10.25

    Well it is obvious if there were emails that showed Rounds knew nothing we would have heard by now! Richard Benda's emails had to be deleted as they connect the GOED to Joop's questionable activities. So what is the penalty for violating a hold letter issued by the AG's office? I imagine it depends upon our 3 tier justice system and which tier one occupies.

  7. Roger Cornelius 2014.10.25

    In other state jurisdictions that have punishable ethics rules and laws it would probably be a felony to delete or destroy any digital or written documents.
    But this is South Dakota, where Republicans take an oath not only to protect each other, but enrich them with state taxpayer money.

  8. Nick Nemec 2014.10.25

    Those e-mails are long gone, plus the servers that held them or any computers that accessed them are someplace in the bottom of Late Oahe.

  9. Jaka 2014.10.25

    Brendan Johnson et al: after this election you have a duty to South Dakotans to uphold----just do it and be done with it. The corruption is a CANCER and needs to be cut out.. Do it.

  10. Francis Schaffer 2014.10.25

    So what about audits by other state departments, do you suppose one could plead deleted records as an excuse for not paying some type of tax? Of that is right I am not a first tier member so privilege denied.

  11. Nick Nemec 2014.10.25

    "All animals are equal, but some animals are more equal than others." George Orwell

  12. grudznick 2014.10.26

    Emails circulate in the internet forever.

  13. Les 2014.10.26

    In the universe, Grud, not the Internet. Though, the quality of our SD system in many of those years was so poor with no experts in the house, who knows. It's obvious with the robocall episode they can find something when they wish to.

  14. caheidelberger Post author | 2014.10.27

    Larry, petition or lawsuit, I'm thinking the terms are interchangeable here. Seems the same was true when Rep. Hickey petitioned the court to take Bosworth off the ballot. Either way, a litigant is asking the court to force someone to do something. Does the word make a difference?

    We lack sufficient statute to preserve e-mails, but if the state issued litigation holds in Feb 2009, there could be trouble for Daugaard's office. But even if Daugaard's office did violate a hold, some recipient of Benda's correspondence must still have copies. Recipients, please contact me.

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