The V.I. Police Department and Mon Ethos Pro Support each have until next Tuesday to file a plan for how Mon Ethos will turn over physical items and electronic data to the VIPD, the Superior Court has ruled.
In a status conference on Friday morning, Judge Carol Thomas-Jacobs wanted to discuss how the company could turn over the requested information without risking data loss. The judge on Thursday granted a request from the Government of the Virgin Islands for a temporary restraining order to prevent the company from deleting or altering critical data relating to several VIPD investigations. The TRO was granted because "the Government has demonstrated a reasonable chance or probability of success on the merits of its claim for conversion," said Judge Thomas-Jacobs, citing the government’s right to immediate possession of the property and Mon Ethos’s refusal to return it.
The underlying lawsuit filed by the government at the beginning of August accuses Mon Ethos of breach of contract, as well as mishandling sensitive data.
On Friday, the judge was surprised to learn from Alex Golubitsky, the attorney representing Mon Ethos, that the company intended to call her as a witness to the preliminary injunction hearing and thus would file a motion that she recuse herself from the matter. The idea was rubbished by government attorneys as a delaying tactic to avoid compliance with the court’s ruling that information be turned over to the VIPD. However, until that motion is filed, the court decided to move forward with scheduling a preliminary injunction hearing regarding the data handover from Mon Ethos to the VIPD.
During the hearing, Mr. Golubitsky kept circling back to the question of compensation regarding the impending property transfer. He first noted that it costs Mon Ethos approximately $120,000 each month to store the data. Since the government allegedly owes somewhere in the region of six months’ worth of invoices, “Mon Ethos would like nothing more than to transfer all of this information to the government and stop incurring these fees,” he said. While never stating it explicitly, the attorney seemed to imply that handing the data over to the VIPD would cost the company additional monies, costs they were hesitant to incur given the already significant arrears accumulated by the government. According to Mr. Golubitsky, “due to the government’s non-payment of Mon Ethos, there are no employees” currently on staff to do the job.
Judge Thomas-Jacobs, however, was not concerned with monetary considerations - just with ensuring that Mon Ethos complies with the temporary restraining order. The company says it is awaiting a directive from the VIPD as to how they want the items to be returned. Questions about a release from the VIPD were quickly swatted away by the judge, who said that that issue was between the government and Mon Ethos.
Ultimately, “since there is so much confusion and the parties can’t sit and work together and figure out how this transfer should happen,” Judge Thomas-Jacobs decided that each party would submit separate plans as to how the information and devices requested would be handed over.
She also noted that co-defendant David Whitaker, who, while apparently present during the online court session, was not represented at the hearing. “We have been having difficulty with serving the principal of Mon Ethos,” admitted Jalicha Persad, a Department of Justice attorney.
Judge Thomas-Jacobs scheduled the next hearing in the matter for August 22, at 10 am.
