Politician e-mails at center of antitrust dispute Patrick Parkinson Of the Record staff
Because the contents of e-mails have helped decide some of the highest profile antitrust cases of the past decade, attorneys for Summit Water Distribution Company say they have asked a Third District Court judge to require Summit County officials come forward with correspondences garnered during electronic discovery.
The private Summit Water is suing Summit County after the Summit County Commission attempted to condemn the company while forming the county’s Mountain Regional Water Special Service District several years ago. The condemnation attempt failed but Summit Water president Hy Saunders claims county officials illegally conspired to run him out of business in an attempt to monopolize the lucrative water market in the Snyderville Basin.
The county violated state antitrust laws that prohibit unfair competition and is now attempting to hide e-mails sent between former Summit County commissioners and Mountain Regional staffers that will provide evidence of the plot, said Robert Campbell, lead antitrust counsel for Summit Water Distribution Company.
"It was the e-mails of Bill Gates that in substantive part brought down Microsoft and Summit Water believes that, in substantive part, the e-mails of this case will bring down the defendants," Campbell said.
According to Summit County Commissioner Bob Richer, a court-appointed expert commissioned by Summit Water obtained copies of thousands of documents from computer hard drives used by former County Commissioners Shauna Kerr, Patrick Cone and Eric Schifferli. The court allowed Daniel Hooper to use "key words," like the names of county officials, developers, Summit Water employees and different neighborhoods in the Snyderville Basin to identify suspected e-mails on the computers.
In 2003, Summit Water paid $60,000 for Hooper to search the hard drives, Campbell said, adding, "Hooper was given the possession of the hard drives of at least 30 computers."
"These e-mails are of critical importance in an antitrust case," Campbell said.
Hooper "imaged" the defendants’ hard drives and kept copies of documents that contained the "key words" on compact discs, the attorney said, adding that Summit Water has viewed about 20 percent of those. But several months ago Summit County began questioning Hooper’s conduct having learned that the man turned over the CDs with the images from the hard drives to the FBI in response to a subpoena from a grand jury, court documents filed by Summit Water Dec. 21 state.
"Summit Water has also learned & that those electronic discovery materials have now been transferred from the FBI and the U.S. Attorney to [defendants’] counsel, Max Wheeler, all without notice to or the knowledge or consent of the court or Summit Water," court papers state.
According to court papers filed by Jody Burnett, a private attorney retained by the county, "& the FBI had discouraged Mr. Hooper from seeking the advice of the [court] or counsel in connection with the subpoena and in fact had discouraged him from even mentioning the subpoena to anyone."
Burnett claims county officials believed Hooper had only turned over copies of the e-mails to the FBI and had retained the original discs.
After the U.S. Attorney’s Office ignored the county’s request for the e-mails, the County Commission retained Wheeler to broker a deal, court papers state.
Wheeler now has possession of the CDs but claims he cannot release them for two years pending further requests from the federal government for access to the material, court documents filed on behalf of Summit County state.
"We can’t take depositions with respect to the e-mails that we haven’t seen," Campbell said, adding that Wheeler’s actions have "stymied" his attempts to complete the electronic discovery.
During oral arguments scheduled in Summit County before Third District Court Judge Bruce Lubeck on Jan. 30, Campbell expects Wheeler to explain why, as an attorney for the county, he should be allowed to maintain sole possession of the e-mails.
"We’re in ongoing litigation and there is a question about the conduct of [Hooper]," said David Thomas, Summit County’s chief civil deputy attorney. "Max Wheeler was retained by the county because of the concerns that the county had over the conduct of [Hooper]."
When the district court and Utah Court of Appeals ruled in favor of the county, Summit County commissioners claimed victory. But next month will be the first time the case has been before a judge since the Utah Supreme Court sided unanimously with Summit Water and sent the antitrust case back to Third District Court last November.
"Summit Water has every reason to believe that the e-mails & will be a significant factor in the evidence that the defendants have violated the antitrust laws," Campbell said. "Summit Water has asked the district court in an emergency motion to require the defendants and their lawyers, including Wheeler, to return the electronic images and documents to the custody of the district court, which is the only entity entitled to their possession."
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