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Swallow investigators seek court order to recover missing records

Published: Saturday, Nov. 2 2013 5:50 p.m. MDT

Utah Attorney General John Swallow speaks to the media after a Republican House Caucus meeting to discuss impeachment at the state Capitol in Salt Lake City, June 19, 2013. Attorneys for the Utah House committee investigating Swallow now want a judge to compel him to comply with a subpoena demanding electronic records, including a large amount that might have been lost or deleted, according to a court motion filed Friday.

Jeffrey D. Allred, Deseret News

SALT LAKE CITY — Attorneys for the Utah House committee investigating Attorney General John Swallow want a judge to compel him to comply with a subpoena demanding electronic records, including a large amount that might have been lost or deleted.

Investigators for the committee have learned that a massive volume of data — much more than initially reported last week — is missing, according to a motion filed late Friday in 3rd District Court. The subpoena seeks records from Swallow and his office dating back to Dec. 1, 2009, when he became chief deputy.

According to the court filing, missing is:

• A potentially large number of emails Swallow received on the office email system.

• A significant number of Swallow's electronic calendar entries for 2009, 2010 and 2011.

• All of the information from Swallow's state-issued data devices, including desktop and laptop computers and personal data assistant, from before 2013.

• Information on the hard drive of Swallow's home computer, which has stopped working.

Investigators also say Swallow replaced his personal cellphone in 2012 and it is unclear whether the data can be retrieved.

Swallow's personal attorney, Rod Snow, told the committee the problems with the attorney general's home computer arose earlier this year and attempts to recover data from the hard drive were unsuccessful, according to the court filing.

The committee has hired a high-priced computer forensics expert to recover the missing data and determine how it was lost.

The court brief also notes that despite "several highly publicized investigations" into alleged wrongdoing involving Swallow, the attorney general's office did not issue a "document hold" directing employees to retain any electronic and hard copy documents.

Brian Tarbet, general counsel for the attorney general's office, sent a letter to Swallow's staff five days after receiving the Sept. 25 subpoena advising them to cooperate with the House investigation and keep any pertinent records.

The attorney general's office has raised concerns with investigators that its computers and data storage devices may contain personal health care information, which would be confidential under federal law.

Investigators say they can't move forward without access to the data. They propose that a judge allow their computer expert to recover the information and return it to the attorney general's office without reviewing it. The office would then go through it and provide the House committee the non-health-related data.

According to the court brief, investigators have not reached any conclusions about how the information came to be missing. They also say the attorney general's office has been cooperative.

One explanation that came out of the office last week for the lost emails was the state switching email systems last November. But the Utah Department of Technology Services, which oversaw the transfer, says it isn't aware of any data being lost in the change.

House committee chairman, Rep. Jim Dunnigan, R-Taylorsville, acknowledged last week that records believed to be important to the investigation are missing. He said the panel intends to discuss the situation when it meets Tuesday.

The committee issued subpoenas to Swallow and his office demanding written and electronic documents, mostly regarding his relationships with indicted businessman Jeremy Johnson and imprisoned businessman Marc Sessions Jenson. Both have accused the attorney general of influence peddling. Swallow has denied any wrongdoing.

Email: romboy@deseretnews.com

Twitter: dennisromboy; DNewsPolitics

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