The following motion was filed this week in the Federal wrongful terminiati0n suit of Zane Seipler against the McHenry County Sheriff’s Department.

Two items might be of particular interest:

• that Sheriff Keith Nygren’s stated intention to appeal his third loss in his attempt to keep Seipler from being reinstated should be considered “purely retaliatory” in nature.  Comparison is made to what happened to other deputies whose infractions concerning the mislabeling of race on traffic tickets were worse than Seipler’s.
• that a one-hour video of an internal investigation interview of Seipler by Deputies Lutz and Miller was withheld until after depositions (sworn testimony) of Lutz and Miller occurred.

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
WESTERN DIVISION

ZANE SEIPLER, Plaintiff,
v.
CAPTAIN ANTON CUNDIFF,
LIEUTENANT JOHN MILLER #1431,
LIEUTENANT WILLIAM LUTZ,
SERGEANT POPOVITS, KATHLEEN
SEITH, KEITH NYGREN, individually and in
his official capacity as SHERIFF OF
MCHENRY COUNTY, and the COUNTY OF
MCHENRY,
Defendants.

No. 08-cv-50257
Judge Kapala
Magistrate Judge Mahoney

PLAINTIFF’S MOTION TO COMPEL AND FOR OTHER RELIEF

NOW COMES the Plaintiff, by and through his attorneys, Blake Horwitz, Esq. of The Blake Horwitz Law Firm, Ltd., and respectfully moves this Honorable Court for miscellaneous relief. In support of this motion, Plaintiff states the following:

Introduction

At the last moment of the most recent of several discovery closure dates, Defendants submitted new and essential information.

Just days before the October 3, 2011 discovery closure date, Defendants tendered an hour-long video tape of the Plaintiff, Defendants Lutz and Miller as well as a report from an “expert” who reviewed the internal investigation of 51 officers accused of racial profiling.

Juxtaposing Defendants’ repeated battle cry that Plaintiff seeks additional time for the completion of discovery with Defendants’ continued 11th hour disclosures (or nondisclosures), this Court can appreciate that Defendants have set forth arguments regarding the status of discovery that are disingenuous, at best.

Accordingly, Plaintiff respectfully asks this Court for relief, as set forth below.

Motion to Compel the Depositions of Defendants Lutz and Miller

An hour-long video-taped internal investigation of the Plaintiff was withheld from Plaintiff during discovery until ten days ago.

The internal investigation involved the Plaintiff and Defendants Miller and Lutz. During this internal investigation, Miller and Lutz interrogated Plaintiff in great detail as to the misidentification of race of two drivers that Plaintiff ticketed.

A lengthy and argumentative discussion ensued during the interrogation, with such force that the parties had to take a break to cool down. The relevance of this exchange cannot be understated.

Deputy Bruketta was promoted after having falsified the racial-profiling data on 100-150 tickets.

The Plaintiff, in sharp contrast, was fired and submitted for criminal prosecution.

Seventeen other officers were also given a pass for their false representations of race; none were subjected to videotaped interrogations regarding the hundreds of tickets they falsified. FN1

= = = = =
FN1 See Exhibit A, Deposition Transcript of Commander Cedegren at 52-54. Cmdr. Cedegren conducted the racial profiling internal investigation. The deposition excerpt provides the names of seventeen officers who “misidentified race” in a meaningful fashion.
= = = = =

The video-taped interrogation by Miller and Lutz clearly establishes the disparate treatment that Plaintiff received.

Revealingly, Defendants withheld the video tape until after Lutz’s and Miller’s depositions were completed and after Plaintiff’s supplemental deposition, which was completed two weeks ago.

The video tape, disclosed ten days after Plaintiff’s supplemental deposition, was essential to all three depositions.

No witness in this case was deposed after the video tape was released. Defendants’ technique cannot be allowed.

Plaintiff prays that this Court order that both Defendant Miller and Defendant Lutz be required to sit for one-hour depositions and that Defendants must pay for Plaintiff Counsel’s time in retaking the deposition as well as the associated costs, including but not limited to, the cost of transcripts.

Motion to Compel the Deposition of Sheriff Nygren

Sheriff Nygren’s deposition was reconvened by order of this Court in light of the supplemental internal investigation that was performed as to 51 Deputies in the Sheriff’s Office. Four weeks after Sheriff Nygren’s deposition and at the repeated urging of Plaintiff’s Counsel, Defendants disclosed the report of Dr. Van Meter for the first time. FN2

= = = = =

FN2 Dr. Van Meter’s report was tendered on September 29, 2011.

= = = = =

Van Meter’s report was used as a basis for Sheriff Nygren’s decision not to punish any of the officers who falsified and/or “misidentified” the race of ticket recipients.

In other words, out of all the officers who misidentified race, only the Plaintiff should be

• punished,
• criminally prosecuted and
• terminated.

Given the importance of understanding disparate treatment as the cornerstone to discrimination cases, FN3 Plaintiff should be able to re-take the deposition of Sheriff Nygren and inquire as to how Dr. Van Meter’s newly disclosed opinions and report influenced the Sheriff’s decision to give all seventeen of the offending officers a pass but to seek prosecution and termination of the Plaintiff.

= = = = =

FN3 Bio v. Fed. Express Corp., 424 F.3d 593, 597 (7th Cir. 2005), Dear v. Shinseki, 578 F.3d 605, 610 (7th Cir. 2009).

= = = = =

Plaintiff asks that this Court compensate Plaintiff’s counsel for the time necessary to retake Sheriff Nygren’s deposition and costs associated therewith.

As above, Defendants should not be allowed to benefit from withholding information to the Plaintiff’s detriment. Alternatively, Plaintiff asks that, as a Rule 37 sanction, Defendants should be prohibited from introducing any evidence at trial as to the explanation for the disparate treatment that was afforded the other officers who misidentified race.

Pattern of Non-Disclosure

As this Court may remember, Defendants withheld 5,000 tickets that were generated by McHenry County Sheriff Deputies.

Those tickets demonstrated that Jeremy Bruketta fabricated the race on at least 100 additional ticket recipients. As a result of the late disclosure, Deputy Bruketta’s deposition was retaken pursuant to order of the Court.

Defense Counsel has withheld

• e-mails,
• reports and
• data reflecting Defense Counsel’s involvement in the internal investigation of 51 officers.

This matter is currently pending before this Court.

In sum,

• 5,000 tickets,
• a video of the Plaintiff,
• an expert’s report and
• Defense Counsel’s investigatory materials

have been withheld from Plaintiff and/or tendered at the eleventh hour.

Consequently, Plaintiff prays that this Court enter an order which requires that Defense Counsel and Defendants certify that all discovery in connection with Plaintiffs’ Request to Produce has been complied with. Plaintiff prays that Defendants comply with this request prior to any further discovery is undertaken.

Motion to Supplement Discovery

Sheriff Nygren has lost three court battles relating to the reinstatement of the Plaintiff.

This weekend’s news reports reveal that Sheriff Nygren now seeks to appeal to the Illinois Supreme Court his most recent loss. Sheriff Nygren’s stated goal is to prevent the re-employment of the Plaintiff.

Nygren’s conduct is purely retaliatory, since he knows that the Plaintiff has been off work and as a result has great difficulties supporting himself.

Plaintiff seeks to disclose an expert as to the low likelihood of success on a Petition for Leave to Appeal to the Illinois Supreme Court, which would support the contention that Sheriff Nygren’s conduct is retaliatory.

Local Rule 37.2 Compliance

Plaintiff’s Counsel Blake Horwitz spoke to Defense Counsel Liz Barton on October 10, 2011. During this conversation both attorneys addressed the re-production of Defendants

• Lutz,
• Miller and
• Nygren

for deposition. Ms. Barton advised that she objected to the re-production of these witnesses.

WHEREFORE, Plaintiff respectfully requests that this Court grant the following relief:

1. order the retaking of the depositions of Sheriff Nygren, Miller and Lutz;
2. order the Defendants to pay for the new transcripts and attorney time for the subsequent depositions;
3. permit Plaintiff leave to disclose an expert;
4. order the Defendants to certify that their discovery materials in connection with Plaintiff’s requests to produce are complete; and
5. enter an order for any and all other alternative relief the Court deems just under the circumstances.

/s/ Blake Horwitz
Blake Horwitz, Esq.
One of Plaintiff’s Attorneys
The Blake Horwitz Law Firm, Ltd.
39 South LaSalle Street, Suite 1515
Chicago, Illinois 60603
Telephone: (312) 676-2100
= = = = =
James Sotos is the lead attorney for Sheriff Keith Nygren.