McHenry County Blog

This is the final installment of Zane Seipler’s attorney Blake Horwitz’ request that sanctions be levied against McHenry County Sheriff Keith Nygren for actions taken by Nygren, his staff and his attorney James Sotos.

Paragraphing and formatting has been added in the text to make the text easier to read on a computer screen as we move to the sanctions that are requested.

Concluding the court filing is a plea for

“Sanctions

“Defendants’ conduct warrants a Rule 37 sanctions in the form an entry of a default judgment against Defendants and/or a ruling as to their affirmative defenses. Fed. R. Civ. P. 37 authorizes the court to sanction a party for failing to obey an order or ruling to provide discovery. Fed. R. Civ. P. 37(b)(2)(A).

“Such sanctions may include

• ‘prohibiting the disobedient party from supporting . . . designated . . . defenses,’
• ‘striking pleadings in whole or in part’ or
• ‘rendering a default judgment against the disobedient party.’

“Fed. R. Civ. P. 37(b)(2)(A)(ii), (iii) and (vi); see also Newman v. Metropolitan Pier & Exposition Auth., 962 F.2d 589, 591 (7th Cir. 1992)(approving entry of default judgment as sanction for defendant’s failure to comply with orders).

“For purposes of Rule 37(b) sanctions, “order” or ‘ruling’ are broadly construed. See Brandt v. Vulcan, Inc., 30 F.3d 752, 756 (7th Cir. 1994).

“A formal, written order by the court is not required. See Govas v. Chalmers, 965 F.2d 298, 301 (7th Cir. 1992)(Rule 37(b) sanctions imposed on party that engaged in ‘evasive and dilatory discovery tactics’). Also see Godlove v. Bamberger, 903F.2d 1145, 1148 (7th Cir. 1990) (granting the Court broad discretion); Thomas Consol. Indus., Inc. v. Herbst, 456 F.3d 719, 724 (7thCir. 2006) (citing Maynard v. Nygren, 332 F.3d 462, 467-68 (7th Cir. 2003).

Also see Sameron v. Enter. Recovery Sys., Inc., 579 F.3d 787, 795 (7th Cir. 2009) (tendering sensitive documents to a member of the press demonstrates a willful violation).

“Sheriff Nygren misrepresented himself to this Court to induce this Court to believe that he had not tendered the deposition transcript to the Northwest Herald.

“This misrepresentation can result in severe sanctions. Montaño v. City of Chicago, 535 F.3d 558, 564 (7th Cir. 2008).

“Regardless of the Nygren fraud upon the Court, Sheriff Nygren and the other officers, including Defendant Miller, clearly tendered the deposition transcript to third parties (Zinke, Rivera and Ellis).

“The parties, as officers, knew that the deposition was confidential and sensitive but flaunted that knowledge and did what they wanted. The intent and motive is clear – if you speak out against the Sheriff, you will be punished.

“The distribution of the confidential police report preceded the Milliman episode.

“The distribution violated Illinois Statutory law. 20 ILCS 2630/7.

“The Sotos firm received the document and the Defendants distributed it to fellow officers to taint their perspective of Mr. Seipler.

“Terminating sanctions is appropriate for flagrant violation of this Court’s order. Greviskes v. Univ. Research Assoc., Inc., 417 F.3d 752, 754 (7th Cir. 2005).

“The above record demonstrates that terminating sanctions is in order.”

Judge Frederick J. Kapala will be the one to decide on both McHenry County Sheriff Keith Nygren’s attorney’s request for sanctions against Zane Seipler and Seipler’s attorney’s counter request against Nygren.

This is Part 2 of former Deputy Sheriff Zane Seipler’s lawyer Blake Horwitz’ request for sanctions against Sheriff Keith Nygren.

This motion was filed in response to a request for sanctions against Seipler by Nygren attorney James Sotos in Seipler’s Federal wrongful termination case.

Most of the post consists of direct quotes from the Seipler motion for sanctions.

“Plaintiff asks that his Court entertain a dispositive disposition in connection with this motion in the form of default and/or the striking of affirmative defenses,” the introduction of the filing reads.

Circumstances of the three instances of Defendants’ alleged violation of the Court’s Protective Order are then discussed. (Paragraphing and formatting has been added to make the text easier to read on a computer screen.)

“Milliman Transcript

“The Defendants submitted confidential and/or sensitive materials to third parties. Scott Milliman testified that Sheriff Nygren and Jose Rivera committed serious crimes, as this Court may remember. The transcript was tendered to

• non-party civilian Jose Rivera,
• Sgt. Ellis and
• Undersheriff Zinke (Exhibit A) and
• a reporter for the Northwest Herald.

“In the Herald’s expose, a scathing editorial was drafted, comparing Scott Milliman to a Sesame Street character (Exhibit B). The Herald’s attack is now available for all to see since December of 2010.

“A quick review of the article demonstrates its chilling effect on any other officer who could and/or would testify in this matter.

“Five officers have come forward and testified, under oath, that they were fearful of testifying in this cause due to the repercussions of testifying against Sheriff Nygren [Foot Note 1].

= = = = =
Foot Note 1 – “Deputies Gerald Bodden, Cynthia Matteson, Timothy Matteson, Scott Milliman and Jill Tutt. Scott Milliman was terrified during his deposition. He was afraid that he too was going to be killed for his testimony. His eyes watered and had difficulty answering certain questions. If Defendants contradict this representation, Plaintiff’s counsel shall order the transcripts and demonstrate same to the Court. Plaintiff seeks to limit public dissemination of this information due to the fear these officers experienced in the depositions.”
= = = = =

“Their fears were justified.

“The transcript was tendered to three nonparties and the Northwest Herald. Milliman was fired for his comments.

“Further, there can be no justification for tendering a transcript concerning alleged criminal activity to a purported coconspirator in crime (Jose Rivera). This is particularly true and obvious as applied to a Sheriff’s Department. To be clear, the Court’s Confidentiality Order required non-dissemination:

“’Confidential Matter [includes] … information that is of a sensitive or non public-public nature regarding …. Defendants, non party witnesses…’ (Exhibit C). This Court now has direct evidence of a willful disregard for this Court’s authority. The affidavits (Exhibit A) speak for themselves…

“Blake Horwitz certifies that he received the Milliman transcript on January 20, 2011, via e-mail and did not disseminate the transcript to anyone. Jensen Court reporters, via Laura Davis, state that the transcript was tendered to Defense Counsel on December 7, 2010.

“Circumstantial evidence demonstrates that Defendants tendered the transcript to the Northwest Herald. Just as it published a scathing review of Deputy Milliman, the Herald is a weekly mouthpiece for the Sheriff, espousing his point of view on a variety matters, including this litigation.”

= = = = =

More tomorrow.