Hundreds of emails were deleted from the accounts of Robert Indiana and his caretaker in the period leading up to the artist’s death and the beginning of the legal battle over the rights to his works such as the iconic “LOVE” image, according to an independent consultant’s report filed in federal court Wednesday.
The attorney for the art dealer that is suing Indiana’s estate included the report with a letter, filed in U.S. District Court in New York, asking the judge to settle the lawsuit in his client’s favor, saying that caretaker Jamie Thomas, who also had power of attorney for Indiana, deleted emails that would have proven their case.
Luke Nikas, the lawyer for the Morgan Art Foundation, said the missing emails are important because they might reveal Indiana’s attitude and mindset about the work in dispute, as well as other issues in the lawsuit. He’s asking the judge for what he called “litigating-terminating sanctions” against Thomas and Indiana’s estate because key evidence was willfully destroyed.
James Brannan, the Rockland-based attorney who represents Indiana’s estate and is a subject in the Morgan lawsuit, called the move “a Hail Mary pass with no receivers in the end zone.”
The report was written in November and provided to the parties in the suit, but not filed in court until this week. According to the report, about 500 emails were deleted, including 227 messages between Thomas and Indiana, leading up to and soon after Indiana’s death in his Vinalhaven home, the Star of Hope, in May 2018. In the suit it filed against Indiana the day before he died, the Morgan Art Foundation alleges that Thomas and others close to Indiana isolated him before his death and made fraudulent artwork under his name. The Morgan Art Foundation has held rights to many of Indiana’s best-known and most-valuable artworks, including his widely reproduced “LOVE” image, since the late 1990s, and contends the value of Indiana’s art and reputation were harmed by the actions of Thomas and others.
“Indiana’s knowledge and approval and state of mind were critical, and it was obvious he used email frequently, yet all his emails were destroyed,” Nikas said in a phone interview. “When a central witness who can no longer testify has had a substantial percentage of emails destroyed, the only way (forward) is to terminate the case in Morgan’s favor. It’s clear to us the deletion was intentional.”
The dispute over the ownership rights to Indiana’s work and related charges of copyright infringement, as well as elder abuse and neglect, were key elements in Morgan’s lawsuit against Indiana and his estate, as well as Thomas and others who associated with him. The estate has since counter-sued Morgan, arguing that its rights to Indiana’s art expired with his death. Both lawsuits are pending. Attempts to settle the dispute as recently as November have failed.
Nikas also is implicating Brannan, because he says Brannan knew about the missing emails and withheld information about them from Morgan and others involved in the legal matter for more than four months, “despite having been actively engaged in discovery during that time and having responded to applicable discovery requests” by Morgan and others.
Attorneys for Brannan declined to comment on the record, and said they would answer Nikas’ claims by responding to the judge on Monday. Attorneys representing Thomas did not return messages.
In a statement Thursday afternoon, Brannan called Nikas’ letter “a distraction, and a desperate effort to avoid the estate’s serious claims that Morgan has shortchanged Robert Indiana and his estate out of tens of millions of dollars in money and property. The letter is like a Hail Mary pass with no receivers in the end zone. When the estate responds with its own letter to the court next week, it will make clear that Morgan’s arguments have no merit.”
The email issue is unrelated to other developments in the case this week in which the Maine Attorney General’s Office asked the Knox County Probate Court to order that additional details be given on the nearly $4 million in legal fees billed to Indiana’s estate. Assistant Attorneys General Linda Conti and Christina Moylan filed a petition for a review of compensation on Monday, and a pre-trial hearing on that motion is scheduled for Feb. 4 at the courtroom in Rockland.
The missing emails have been the subject of legal wrangling for nearly a year. Nikas filed a motion seeking information about the emails last February, and in March the judge in the case, Barbara Moses, ordered forensic reviews of Indiana’s desktop computer and Thomas’ laptop. Nikas asked for a forensic review after learning about the missing emails during the legal discovery process.
Having power of attorney gave Thomas sole access to Indiana’s email account from May 2016 until August 2018, when he shared Indiana’s credentials with Brannan and the estate. “Upon logging into the email account on August 30, 2018, the estate discovered that virtually all of the emails in the account had been deleted and that the account had been accessed as recently as August 28, 2018,” Nikas wrote in his letter to the judge, adding that Brannan “deliberately withheld” information about the missing emails for four months.
The review, conducted by FTI Consulting, which was jointly hired by both sides in the suit, revealed that at least 37 emails between Thomas and Indiana were deleted from Thomas’ web-based email account, and that 341 emails had been deleted from Indiana’s AOL email account.
Nikas alleges that Thomas deleted the emails after he used his role as Indiana’s power of attorney to send Morgan a cease-and-desist order and after Morgan filed its initial lawsuit in the spring of 2018.
In his letter to the judge, Nikas wrote, “The destroyed emails might be the most important evidence in this case. They are contemporaneous written records of the knowledge, participation, and approval of the artist at the center of this dispute in the projects at the core of this dispute.”
In an interview, Nikas said the question before the judge is whether Morgan has been harmed by the deletion of emails in its effort to win the case it filed or defend itself from the counter suit. “The legal question is whether we have been prejudiced by the deletion,” he said.
If the judge proceeds with a trial, “The bottom line is we will have to prove our case and our defenses in other ways. We shouldn’t be put to that burden. That is why the law requires you to preserve documents and hold people responsible.”
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