IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
v. ) Case No. 08 c 50257
Cundiff, et al., ) Honorable Judge Frederick J. Kapala
DEFENDANTS’ POST-HEARING BRIEF IN SUPPORT OF SANCTIONS
Defendants County of McHenry, the McHenry County Sheriff’s Office (“MCSO”),
Nygren, Cundiff, Miller, Lutz, Popovits, and Seith (“Defendants”), by and through their attorneys, The Sotos Law Firm, P.C., submit their Post-Hearing Brief in Support of Sanctions.
“Oh, what a tangled web we weave / When first we practice to deceive.” Scott, Sir Walter.
Marmion: A Tale of Flodden Field, Canto VI, XVII (Edinburgh: Printed by J. Ballantyne and Co., 1808). Plaintiff would have been well served to heed Scott’s warning about the entanglements, carnage, and regret that inevitably stem from a conspiracy of lies, when he swore to the Court on June 21 that he had no responsibility for or knowledge of the creation and posting of documents on www.realmcsoexposed.blogspot.com (hereafter referred to as “Real MCSO”). (See Ex. 12.) [FN1] In refusing to accept the comparatively benign consequences Defendants initially sought for his intentional violation of this Court’s protective order, Plaintiff’s affidavit triggered an unseemly fraud on this Court, which ultimately ensnared his own wife and attorney and consumed enormous judicial resources. As a result of the calculated scope of that fraud, no remedy short of dismissal will effectively deter parties who avail themselves of the Court’s remedial powers from perpetrating such schemes in the future.
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FN1 All exhibits admitted at the hearing were introduced by Defendants and are cited as “Ex.”
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The burden to sustain dismissal of a suit as a sanction for abuse of the litigation process is an area where policy and consensus favor one result, but precedent nonetheless dictates another. While the Seventh Circuit has repeatedly doubted the viability of its holding in Maynard v. Nygren, 332 F.3d 462, 468 (7th Cir. 2003) that such claims must be proven by clear and convincing, as opposed to a preponderance of, the evidence, it has always found the moreSee Wade v. Soo LineR.R. Corp., 500 F.3d 559, 564 (7th Cir. 2007); Ridge Chrysler Jeep LLC v. Daimler Chrysler Financial Services Americas LLC, 516 F.3d 623, 625-26 (7th Cir. 2008); see also Ty, Inc. v. Softbelly’s, Inc., 517 F.3d 494, 498-99 (7th Cir. 2008) (stating “we are led to doubt that there is any utility in insisting on proof by clear and convincing evidence” in Rule 37 cases).
A related issue concerns the burden to prove Plaintiff’s last minute effort to blame the postings on his wife. While the Seventh Circuit and Illinois district courts are silent on the issue, other courts have held once a party seeking sanctions has established non-compliance with a discovery order, the burden shifts to “the disobedient party to avoid the sanctions sought under [Rule] 37(b) by showing the inability to comply or special circumstances render the particular sanctions unjust.” Cox v. West Virginia, 460 S.E.2d 25, 31-32 (W.Va. 1995) (quoting Bell v. Inland Mut. Ins., 332 S.E.2d 127 (W.Va. 1985)); see also Kendall Lakes Condo. v. Pac. Ins. Co., No. 10-24310, 2011 WL 6190160, at *5 (S.D. Fla. Dec. 2, 2011). Additionally, Rule 37(b) provides that “[i]nstead of or in addition to the orders above, the court must order the disobedient party…to pay the reasonable expenses…caused by the failure, unless the failure was substantially justified or other circumstances make an award of expenses unjust,” which is the disobedient party’s burden to establish. FED. R. CIV. P. 37(b)(2)(c); Webb v. CBS Broad., Inc., No. 08 C 6241, 2010 WL 2104179, at *4 (N.D. Ill. May 25, 2010); see also Dixon v. United States, 548 U.S. 1, 8 (2006) (upholding jury instructions requiring criminal defendant to establish duress by preponderance).
Against that backdrop, once Defendants proved the discovery violation, the burden shifted to Plaintiff to prove his affirmative defense. Nonetheless, the allocation of burdens here is a matter of semantics because clear and convincing evidence establishes Plaintiff was responsible for the confidential postings and lied about his responsibility in an affidavit.
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Part 3 tomorrow.