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Charlottesville court tells ‘Unite the Right’ participants to surrender social media, cellphone data

November 14, 2018

A federal court in Charlottesville, Virginia, has ordered defendants being sued over their involvement in the deadly 2017 “Unite the Right” rally to surrender data stored on their cellphones and social media accounts.

“Unite the Right” organizer Jason Kessler and white nationalist activist Richard Spencer are among the defendants covered by Tuesday’s court order, meaning both far-right figures have been told to turn over their electronic devices and accounts for inspection and imaging.

Magistrate Judge Joel Hoppe’s ruling is the latest development in a civil rights lawsuit filed on behalf of several Charlottesville residents in the wake of the 2017 far-right rally, which triggered violent clashes between participants and counterprotesters and ultimately culminated in the deaths of a local woman and two Virginia state troopers.

“This is a significant decision because it means we will be able to secure valuable evidence from defendants’ own cell phones and other devices to use at our trial next year,” said Karen L. Dunn, an attorney for the plaintiffs. “The judge has made clear that defendants cannot keep that evidence from the plaintiffs and they have no choice but to comply,” she said in a statement.

Mr. Kessler, 35, told The Washington Times that he previously had his devices imaged during the course of separate litigation, adding: “They didn’t find anything interesting.”

Mr. Spencer, 40, declined to comment.

Billed by Mr. Kessler as a rally in support of a Confederate statue, “Unite the Right” quickly descended into chaos amid fights erupting between counterprotesters and participants including neo-Nazis and other far-right extremists, sidelining both the event and a scheduled speaking appearance featuring Mr. Spencer, the president of a white nationalist group and a leading figure among the so-called “alt-right.”

Attorneys representing several Charlottesville residents subsequently sued two-dozen individuals involved in the rally, including Mr. Kessler and Mr. Spencer, alleging conspiracy to commit racially-motivated violence in violation of the Ku Klux Klan Act of 1871.

More than a year into litigation, Tuesday’s ruling effectively orders defendants to turn over computers, cellphones and social media accounts to an independent, third-party to determine if any digital evidence exists relevant to the case.

“The Court finds that ordering the parties to submit their electronic devices to a third-party vendor for imaging . . . is necessary and appropriate to manage discovery in this action,” the magistrate wrote.

A draft version of the request submitted by plaintiffs sought data from defendants’ computers, smartphones, tablets and gaming devices, as well as social media accounts, including specifically Facebook, Snapchat and Instagram.

Defendants have also been ordered to sign a consent form allowing Discord, another social media platform, to produce any related documents in the company’s possession, according to the magistrate’s order.

Compelling compliance is necessary “to ensure all discoverable, relevant evidence is preserved and to avoid the irreparable harm to Plaintiffs that would result if relevant evidence is destroyed,” plaintiffs said previously.

“Plaintiffs have alleged a conspiracy among the Defendants to commit racially motivated violence based in part on electronic communications by and among those Defendants.”

Plaintiffs have agreed to pay the costs of imaging and inspection, Tuesday’s order noted.

Heather Heyer, 32, was killed while participating in a counterprotest on the afternoon of “Unite the Right. Prosecutors have charged an Ohio man, James Alex Fields Jr., with related charges including counts of murder and federal hate crimes.

Virginia State Police Lt. H. Jay Cullen and Trooper-Pilot Berke M.M. Bates both died as a result of a helicopter crash that occurred while monitoring the rally.

An independent audit commissioned by Charlottesville previously faulted law enforcement for failing to take adequate measures before, during and after “Unite the Right.”

Mr. Kessler, meanwhile, sued the city of Charlottesville last week over its handling of his rally, alleging violations of his First Amendment rights.

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