An Ohio judge said conservative consulting firm Strategy Group for Media was “overzealous” in its latest attempt to get a judge to rule its former president had violated his non-compete agreement among other laws.
The Strategy Group for Media requested a judge rule that because the group’s former President Nick Everhart deleted several emails and texts after he was fired, it proved he was in violation of “his non-compete agreement, violated the Ohio Deceptive Trade Practices Act, violated the Ohio Trade Secrets ACt, tortiousely interfered with Plaintiff’s business relationships, committed civil conspiracy, breached his fiduciary duties and committed a breach of contract.”
But in a memo made public on the Franklin County Court Website, Judge David Cain denied the motion.
“This situation is a prime example of a party being overzealous,” Cain wrote in a Oct. 18 memo.
Everhart and Strategy Group have been engaged in a months-long court battle surrounding the circumstances of Everhart’s termination from Strategy Group after he and several other employees staged a religious intervention for founder Rex Elsass, where they demanded changes in the company as well as in his personal life, and laid hands on him and praying for his soul. Strategy Group has represented dozens of Tea Party Republicans, including several presidential candidates including Rand Paul, Ted Cruz, Michele Bachmann, and Newt Gingrich.
“While other judges have granted similar motions when a defendant so blatantly destroys evidence of his wrongdoing, the judge’s denial was not unexpected,” Strategy Group President Rick Tyler said in a statement. “Nevertheless, the judge in his ruling sent a stern warning to the Defendant writing that the ‘Court in no way condones the destruction of evidence,’ and ordered him not to destroy evidence because it could ‘lead to adverse consequences’ in the upcoming jury trial.”
After he was fired, Everhart deleted emails and text messages he exchanged with friends, colleagues and Strategy Group competitors. Strategy Group wanted the judge to make an “adverse inference,” or assumption, that because the exchanges were deleted that Everhart was in violation of the terms.
The deleted emails were recovered after subpoenas were issued and provided to Strategy Group for review. Some of the emails and texts, as reported by BuzzFeed, alluded to the Elsass accidentally sending a vibrator to Bachmann.
Strategy Group argued, according to Cain’s memo, that emails and texts that were recovered were “so prejudicial” to Everhart that what wasn’t recovered “must be even worse.” Cain bluntly rejected that claim.
“The problem with the Plaintiff’s contention is that the e-mails and texts provided to the Court in no way show what Plaintiff thinks they show,” Cain wrote. “They show a man who has recently lost his job commiserating with friends, planning his future and attempting to secure future employment.
“All the e-mails and texts provided show is that Defendant is a human being,” he added.
Cain said that because Everhart may have to face consequences for deleting emails and texts, but it will be up to a jury to infer what the unrecovered emails and texts may have contained.
Updated to include the statement from Strategy Group President Rick Tyler.