Former attorney for law firm wrote article several years ago warning lawyers to preserve digital communications.
TRENTON -- Call it an ironic twist.
Defense attorneys for two former members of Gov. Chris Christie's inner circle have argued that a missing iPhone used by the governor during the height of the Bridgegate scandal may contain evidence that could help their case.
Nobody now seems to know who may have that phone.
However, in a 2010 feature for a legal website, a former top attorney at Gibson Dunn & Crutcher -- which was paid $10 million by the Christie administration to investigate the George Washington bridge scandal -- warned against "failure to preserve and produce" cell phone text messages in federal cases, long before the lane closure scandal.
Farrah Pepper -- then vice chair of Gibson Dunn's electronic discovery and information law practice -- raised the issue in the wake of the embarrassing disclosure of text messages between pro golfer Tiger Woods and his mistress in a strangely prescient feature for Law.com aptly titled, "Honey, I Forgot the Cell Phone."
Pepper wrote that the Woods matter highlighted the need to preserve text and instant messages.
"One need look no further than the headlines about voicemail and text messages...to realize the potential significance," she wrote, warning about "the importance of managing text messages, instant messages, voice mail and other outlier ESI [electronically stored information] before they become evidence in litigation."
The former Gibson Dunn attorney cautioned that failure to preserve and produce certain electronically stored information like text messages "could constitute spoilation and result in sanctions such as adverse inference."
Spoilation is a legal term meaning the intentional or negligent withholding, hiding or destroying of evidence relevant to a legal proceeding. Adverse inference means a jury might be permitted to conclude that the of absence of requested evidence means that evidence was unfavorable to the withholder.
In fact, Bridgegate defense lawyers have requested that just such an "adverse inference instruction" be given to jurors weighing the matter.
At issue in the federal corruption case are a dozen deleted text messages sent between Christie and his then-chief of staff, Regina Egea, during testimony by Port Authority staff before the state Legislature then investigating the 2013 shutdown of local toll lanes at the George Washington Bridge. The shutdowns, claimed to be part of an unannounced traffic study, were later alleged by prosecutors to be a politically motivated act of retribution to punish the mayor of Fort Lee with massive traffic jams after he declined to endorse Christie for re-election.
William Baroni, the former deputy executive director of the Port Authority, and Bridget Anne Kelly, who served as Christie's deputy chief of staff, have been charged with conspiracy and face trial in September.
Pepper, who left Gibson Dunn in January 2012 to become executive counsel in charge of discovery at General Electric, declined to comment on her Law.com feature.
The missing phone, meanwhile, remains a continued focus of the case. Court filings from last week by defense attorneys showed that federal investigators never actually sought or obtained Christie's cell phone in the wake of the lane closure scandal, instead relying on Gibson Dunn's summary of its contents.
Complicating matters, neither Christie, federal investigators nor Gibson Dunn's attorneys can say where the phone wound up after being returned to Christie's personal attorney.
Attorneys for the defense want to examine the cell phone to see if texts sent between Christie and Egea can be recovered after being deleted. They say the deleted messages could reveal what the governor may have known while other state and Port Authority officials were testifying at televised hearings in late 2013 about the lane closures.
Patrick Oot, an attorney and former director of electronic discovery at Verizon, said that the fact that the governor's phone had gone missing was concerning.
"If nobody's tracking down this device and it does contain exculpatory evidence, that's a problem in itself," said Oot. "But if nobody has the chain of custody for this device, the assumption should be that the evidence is unfavorable to [Christie]."
Even if the U.S. Attorney for New Jersey couldn't acquire the actual phone, he said that Gibson Dunn should have known it should have handed over Christie's phone to a trustworthy intermediary, if only to protect itself from accusations of tainting evidence.
"In criminal litigation, you find a neutral third party, like the FBI, or a firm like KPMG," said Oot, who also oversaw electronic discovery for the Securities Exchange Commission before becoming a partner at his current Washington D.C. based firm of Shook Hardy & Bacon.
"Whoever had custody of the device during the investigation and/or litigation had an obligation to preserve the device and the chain of custody -- even if it was a personal device," said Oot.
Michael Baldassare, an attorney for Bridgate defendant Bill Baroni, said Wednesday that the defense has sought access to the chain of custody for the governor's cell phone, but Gibson Dunn has so far refused to provide it.
"We subscribe to the theory that in this day and age, nothing is ever 'gone,'" said Baldassare. "One of our motions was for a chain of custody [from Gibson Dunn] and they refused."
Christie's personal attorney, Christopher Wray at King & Spalding, did not a call for comment. A call placed to Gibson, Dunn's Bridgegate report author, Randy Mastro was not returned.
If the governor's Bridgegate iPhone really is lost, "the destroying party may face severe charges for obstruction of justice" under the Sarbanes-Oxley Act of 2002, Oot said.
"Even an imbecile lawyer would know that any time that you are touching the most important piece of evidence in a criminal investigation, you have to account for it," he said. "And to me, it sounds like the most important evidence in the investigation."
Claude Brodesser-Akner may be reached at cbrodesser@njadvancemedia.com. Follow him on Twitter @ClaudeBrodesser. Find NJ.com Politics on Facebook.