McHenry County Blog

Sheriff Keith Nygren’s motion for legal fees to be paid by Deputy Zane Seipler in his wrongful termination suit total $227,905.

There is an addition $32, 252.16 in “costs and expenses” for the contempt of court hearings.

Judge Frederick Kapala ordered Seipler to pay legal fees and costs, but did not dismiss Seipler’s case in his opinion of a month ago.

The court document for legal fees and costs was filed last Thursday by James Sotos associate Elizabeth Baron.

Seipler is represented by attorney Blake Horwitz.

Besides violating the confidentiality court order in former Sheriff’s Deputy Zane Seipler’s wrongful termination case, his attorney Blake Horwitz argues in his motion for sanctions that defendant McHenry County Sheriff’s lawyer James Sotos has wrongfully withheld a long video interview made of Seipler by the Department.

As before, paragraphing and formatting has been added in the text to make the text easier to read on a computer screen.

“The Video Recording

“This Court recently granted Plaintiff leave to re-take the deposition of two Defendants, Lutz and Miller, given Defendants’ failures in producing a lengthy video taken of the Plaintiff during the Plaintiff’s internal investigation into racial profiling and ticket writing. See Order, Dkt No. 311, October 12, 2011.

“Plaintiff desires to remind the Court that three affidavits were filed in support of the Defendants’ position that the video was somehow lost. (Exhibit J, Affidavits of Defendants Miller and Lutz and Affidavit of Elizabeth Barton). These affidavits were filed by party defendants and their counsel (Ms. Barton) in response to Plaintiffs motion to compel and this Court’s order (Dkt No. 134) [Foot Note 3].

James Sotos

“This Court will recall Mr. Sotos’ recent oral argument before the Court, where he stated that the hour long video was recently ‘found’, but only after the Plaintiff’s deposition was taken.

“During Mr. Sotos’ argument, this Court on repeatedly referenced the ‘convenient’ post-deposition find and then granted Plaintiff’s motion to compel as to the two Defendants.

“Notably, Defendant Affiant Seith stated that she gave the CD to the Sotos law firm (Exhibit J, pg 5, para 6) but then the video became ‘missing’ (Id. para. 8).

“Ms. Barton, a Sotos Associates states that she performed a ‘reasonably search’, including Mr. Sotos’ involvement, to obtain the video (Exhibit J, para 5 and 7).

“Apparently, the search became more reasonable after the Plaintiff testified.”

= = = = =

Foot Note 3 – “As to Plaintiff’s motion to compel the production of an audio-video recording of the internal investigation of Plaintiff, Defendants are ordered to complete a reasonable search to produce the compact disc. According to the Defendants’ affidavit, a copy of the disc was sent to Heidi Parker, but no explanations have been proffered as to efforts to locate this copy, or any other copies that may exist. Within 21 days, Defendants shall either produce a copy of the compact disc, or submit an affidavit to the court to explain why Ms. Parker’s copy is unavailable.”

= = = = =

In addition to asking for sanctions, Seipler attorney Horwitz asks for “attorneys’ fees for having prevailed with regard to depositions of Miller and Lutz (concerning the newly found video).”

= = = = =

More tomorrow.

= = = = =
Other articles in the series:

• Point, Counter Point – Sotos, Horwitz Both Request Sanctions – Part 1
• Point, Counter Point – Sotos, Horwitz Both Request Sanctions – Part 2
• Point, Counter Point – Sotos, Horwitz Both Request Sanctions – Part 3
• Point, Counter Point – Sotos, Horwitz Both Request Sanctions – Part 4

I have a new toy.  It’s called Pacer.

It’s a portal to all Federal court filings. Eight cents a page to look and download documents. (Up to ten cents next year.)

The suit I am looking at today is Zane Seipler’s wrongful termination suit against Sheriff Keith Nygren.

On June 13, 2011, Nygren’s attorney James Sotos’ law associated Elizabeth Barton filed a motion titled,

“MOTION by Defendants County Of McHenry, Anton Cundiff, William Lutz, John Miller, Keith Nygren, Popovits, Sheriff of McHenry County, Kathleen Sieth for sanctions For Violation of Court Order,”

along with nine exhibits.

Nygren’s motion says Zane Seipler wrote on his blog:

“The Federal Magistrate made a ruling and decided that he would not hold Miller orNygren in contempt for violating the ‘CONFIDENTIAL’ protective order.1 This ruling didn’t surprise me because I had heard the Magistrate’s opinion regarding this‘CONFIDENTIAL’ protective order. As I understood it, he didn’t think it was necessary and that all the information regarding this case should be made public. So basically, there are no consequences for violating the ‘CONFIDENTIAL’ protective order.”

This was after Seipler filed for sanctions against Nygren, et al, for allegedly releasing Scott Milliman’s deposition to persons unknown who gave it to the Northwest Herald.

Last December, McHenry County Blog printed the transcript (links to all those stories here) of the hearing when Seipler attorney Blake Horowitz described what was in the deposition. Shortly after Sheriff’s Deputy Scott Milliman was put on administrative leave.   Since then he has been let go.

March 8, 2011,  Seipler’s request for sanctions was denied by Magistrate Michael Mahoney. He found that there was “no evidence of an intentional violation of a protective order or discovery order in this case.”

Zane Seipler, who ran against Sheriff Nygren in the 2010 Republican primary election, has written extensively on his now inactive blog, which he called “McHenry County Sheriff’s Office Exposed.”

An amended confidentiality agreement, dated August 10, 2010 is quoted:

The signatories will abide by the following terms and conditions: Specifically, with respect to the disciplinary file of any former or current employee of the McHenry County Sheriff’s Office (hereinafter “disciplinary file” or “disciplinary files”), the parties agree that such records shall be designated “Confidential” as described herein. The parties also agree that the disciplinary files shall be further designated “For Attorney and Parties’ Eyes Only,” and that these files and the information contained therein will not be disclosed to any person not a party to the instant matter or his orher attorney, with the exception of court reporters, any expert witness as designated in this Order, or the current or former employee who is the subject of said records for purposes of that employee’s deposition.

And, then, Nygren’s attorney points to a second blog, “The Real McHenry County Sheriff’s Office Exposed,” and claims,

On June 2 and 6,2011, the blog posted 38 documents that came from Defendants’ 2010 production and 13 documents that came from another one of Defendants’ productions.

An Exhibit G is referred to with the following note:

“The first 13 pages of Exhibit G reflect the blog as it appears online. However, the images as they appear are illegible. Therefore, for convenience, the remaining pages of Exhibit G are close-ups of the images that appear on the blog in “expanded view.”

McHenry County Blog has copied all but page 13 (production glitch on my end) of that exhibit and you can find it here.

The argument continues:

“Specifically, a side-by-side comparison revealed that the redactions Ms. Barton placed on the documents in Defendants’ productions were identical to the redactions that appeared on the documents the blog had posted. (See Exhibit H, filed under seal.) The only person to whom these documents were released was Mr. Horwitz.”

“On June 8, 2011, Mr.Horwitz informed Ms. Barton during a telephone conversation that neither he nor his client had released the documents,” the court filing continues.

“There is only one explanation for the release of these documents,” the motion continues. “The documents were produced by defense counsel’s office to only one person, Mr. Horwitz. Therefore, either Mr.Horwitz, someone from his office, or Plaintiff gave those documents to a third person in violation of the Amended Protective Order.”

Now the plot thickens. Sotos’ law firm “subpoenaed Google, the company that maintains the blog, for information related to the identity of the individual who posted the documents.”

This filing doesn’t say so, but I’ve read on Gus Philpott’s blog, Woodstock Advocate, that Google revealed that Seipler’s email address was used as a secondary contact point for “The Real McHenry County Sheriff’s Office Exposed.”  Philpott, the Green Party candidate against Nygren in 2010, pointed out that he could put Nygren’s email address on his blog.  In short, a secondary email address meant nothing.

So, what’s in Exhibit G?

It appears to be a lot of the top secret, hush, hush internal documents that the Sheriff doesn’t want made public.

The first one that can be read starts on page 15 of Exhibit G.

Let’s see what it’s all about.

Revealed for all to see in a Federal Court filing is a February 8, 2007, memo from Equal Employment Officer Kathleen Seith to Undersheriff Gene Lowery and Patrol Captain Anton Cundiff. Seith and Cundiff are plaintiffs in Seipler's wrongful termination lawsuit.

The second page of the February 8, 2007, Sieth memo continues.

The third page of the Feb. 8, 2007, Seith memo.

Feb, 8, 2007's fourth page.

The last page of EEO Seith's Feb. 8, 2007, memo.

If this is such secret information, why would Sheriff Nygren’s attorney put it in the public domain in a court document that anyone can access?

If you have the answer to that question, please put it in the comments below.

The document just filed does look exactly as I received it (different formatting), but I bet some readers will find it interesting.

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

Zane Seipler

ZANE SEIPLER,
Plaintiff
V.
CAPTAIN ANTON CIINDIFF,
LIEUTENANT JOHN MILLER #1431,
LIEUTENANT WILLIAM LUT Z,
SERGEANT POPOUTS, KATHLEEN
SIETH, KEITH NYGREN, individually and in
his offrcial capacity as SHERIFF OF
MCHENRY COUNTY, and the COUNTY OF
MCHENRY, Defendants.

JUDGE KAPALA
MAGISTRATE MAHONEY
No.08-cv-50257

PLAINTIFF’S MOTION FOR MISCELLEANOUS RELIEF

NOW COMES the Plaintiff Zane Seipler, by and through his attorney, Blake Horwitz of The Blake Horwitz Law Firm, Ltd., and respectfully requests this Court to grant Plaintiffs Motion. In support of same, Plaintiff states the following:

1. Many matters need to be resolved. Plaintiff shall try to succinctly point out the material issues.

Keith Nygren

2. The deposition of Sheriff Nygren completed on August 30, 2011. The deposition was to take place for an hour. During the deposition, Defense counsel gave lengthy objections intended to use up precious deposition time and the Deponent, an experienced witness, feigned confusion over simple questions.

At the end ofthe deposition, Plaintiff’s counsel sought out three additional minutes of questioning with regard to the racial profiling and acts of misconduct of officers.

The Sheriff walked out of the deposition, encouraged by his counsel Mr. Sotos.

Plaintiffs counsel requested three more minutes of questioning on five occasions and called this Court for intervention. The Court was not available but a record was made. Plaintiff prays that this Court allow five additional minutes of questioning and that Defense counsel be ordered to refrain from lengthy speech
objections.

Plaintiff also prays for costs/fees in connection with the prosecution of this matter.

3. Plaintiff filed an emergency motion to move the August 31,2011 status date so that the parties could take two depositions on said date: Jose Rivera and Captain Cundiff. The dates for Captain Cundiff were limited, pursuant to the dates ofFered by Defense counsel.

Plaintiff proffered August 31, 2011, after the Rivera deposition, however, Defendants declined, arguing that August 31, 2011 status date can not be moved absent a Court order and Defendants were unable to agree to move the date. Plaintiff submitted an emergency motion but learned from speaking to this Court’s minute clerk that this Court will not entertain emergency motions over the telephone. Hence, Plaintiff presents said motion in the instant submission.

4. The deposition of Deputy Tim Matteson began and was continued, mid-way through at the request of defense counsel, so that other depositions could be taken. The other depositions were taken and completed; however, Deputy Matteson’s deposition was not completed. Plaintiff seeks to complete the deposition of Tim Matteson.

Additional Discovery Concerning Jim Sotos and Elizabeth Barton

5. Unfortunately, hidden from Plaintiff s counsel was a recent revelation that grew out of the Deposition of Sheriff Nygren (yesterday) and Commander Cedergren (the day before). This Court is well aware of the internal investigation that was undertaken relative to the 51 officers.

James Sotos Associate Elizabeth Baron leaving Federal Court in Rockford.

Jim Sotos and Elizabeth Barton (Defense Counsel) guided, managed and/or organized this investigation. The Defendants sought out and secured the services of Mr. Sotos and Ms. Barton to learn how a racial profiling investigation should be performed. Mr. Sotos provided a 30-45 minute presentation on this score in the first
meeting that Defendants undertook to sort out the racial profiling issues. Ms. Barton was present during this meeting. Subsequently, Mr. Sotos and Ms. Barton counseled Cedegren and Patanaude to guide them through the process of investigating the racial profiling that took place in this case. The record could reflect up to 50 telephone calls between Ms. Barton, Cedegren and Patanaude, in connection with the investigation.

6. With regard the results of the investigation, in the face of obvious evidence to the contrary, there is little mystery to the ultimate conclusion that was reached – that racial profiling did not occur asto any oflicers in the department.

7. There were of course, other law firms in the Chicago-land area that were available to Sheriff Nygren. Only the Sotos fum was chosen. The Sotos firm represents Sheriff Nygren and the other high ranking Defendant Ofhcers, in the pending litigation only.  The Sotos firm has no other litigation pending with these Defendants.

8.  Peculiarly, Defense counsel has inserted themselves as witnesses to this cause (for a fee) by manipulating facts and directing the large scale investigation. Perhaps this was the only way that the internal (versus external) investigation could be performed pursuant to the desires and goals of the Sheriff. Discovery on this score must be conducted.

9.  Plaintiff has requested a date for the deposition of Mr. Sotos and Ms Barton, by way of informal written correspondence, so that Defense counsel can submit their own dates and secure counsel of their choosing. Plaintiff has also requested that certain items be produced by way of request to produce (Exhibit A).

McHenry County Sheriff Keith Nygren Defense Counsel James Sotos on TV.

10. The depositions of Defense counsel is material to this case. The internal investigation, directed by these attorneys, was a sham. Though work was clearly generated relative to the misconduct of officers, the investigation was designed to hide and cover-up the true nature of hundreds of falsified tickets generated by Oflicer Bruketta – an officer that Plaintiff accused of racial profiling long before his termination. As of this day, Mr. Bruketta, enjoys a delightful increase in salary and promotion while the Plaintiff suffers from a long term job loss.

Defendants Pending Motion for Sanctions

11.  Regarding another matter, Defendants have filed a motion for sanctions, perjury, dismissal and costs. Defendants are still engaging in discovery on this score with regard to additional subpoenas (Yahoo, Comcast). Defendants will try to boot strap new arguments into their reply brief in connection with subpoenaed information they uncover.

Zane Seipler Attorney Blake Horwitz on television.

Plaintiff asks that this Court regulate this process and order Defendants to generate one submission in connection with their opening brief wherein the submission contains all the evidence relative to their motion. Plaintiff requests that only at that time should he be required to submit a response brief. Plaintiff was ordered to respond to the Defendants’ motion in 14 days, Plaintiff now seeks additional time to respond, given Defendants subsequent subpoena requests.

12.  Lastly, Plaintiff asks for a protective order in connection with the subpoenaed material.  Defense counsel, Jim Sotos has agreed to Plaintiff’s request. In their subpoenas, Defense counsel has requested the e-mail communications that have been generated by Mr. Seipler, the Plaintiff. Mr. Sotos, in a recent conversation with Blake Horwitz, Plaintiffs counsel, has agreed to limit the depositions to information not relating to e-mails. Hence, Plaintiff requests that this Court enter an order accordingly.

WHEREFORE, Plaintiff respectfully requests that the Court grant this Motion and provide any alternative relief deemed just under the circumstances.

Respectfully submitted,

/s/ Blake Horwitz

Blake Horwitz
One of Plaintiffs Attorneys
The Blake Horwitz Law Firm
Two First National Plaza
39 SouthLaSalle, Suite 1515
Chicago, Illinois 60603
Telephone: (312) 67 6-2104

Elizabeth Barton after the Rockford Court hearing on Gus Philpott's successful motion to suppress the subpoena for personal and Woodstock Advocate demails.

When Woodstock Advocate blogger Gus Philpott went to Rockford Federal Court to object to Sheriff Keith Nygren’s attempt to get all of his emails to and from any number of people, Philpott challenged the decision and won his motion to prevent enforcement of the subpoena.

And he won.  See

“Philpott Beats Nygren“

Contained within the hearing transcript (which you can find in full here) of Zane Seipter’s case against the McHenry County Sheriff’s Department is the following stunning admission by Sheriff Nygren attorney Elizabeth Barton:

“…Mr. Seipler was terminated for complaining about racial profiling.”

The case Seipler brought against the Sheriff’s Department charges wrongful termination.

The following part of the transcript puts that statement into context:

THE COURT: No. The information would have to be pertinent to this lawsuit, not just the internal investigation to get to it.
MS. BARTON: Okay. There’s also information about the deputies at roll call who said on his blog or –

Zane Seipler

THE COURT: What date are we talking about? When Mr. Seipler was still there or not?
MS. BARTON: When Mr. Seipler was still there.
THE COURT: And what did the deputy say, according to the blog?
MS. BARTON: That Mr. Seipler was either making allegations against certain deputies for racial profiling or that he or she overheard other deputies telling the people in the roll call room –
THE COURT: Why do you want to know about that?
MS. BARTON: Because Mr. Seipler was terminated for complaining about racial profiling. So, it’s important to know who he complained to and who was aware of the allegations at the time.
THE COURT: But you could ask Mr. Seipler that and have at his deposition, haven’t you?
MS. BARTON: We have.
THE COURT: So, why does this person here have more information than Mr. Seipler’s given you?
MS. BARTON: Well, we’re looking for the identity of the deputies that were making those statements in the roll call room or anywhere else in the sheriff’s department, and so far we haven’t been able to determine who those deputies are.

The motion by Gus Philpott that led to the quashing of Keith Nygren attorney's subpoena. Click to enlarge.

Acting as his own attorney, Woodstock Advocate blogger Gus Philpott prevailed Wednesday in Magistrate P. Michael Mahoney against McHenry County Sheriff Keith Nygren lawyer.

James Sotos, Nygren’s attorney in former Deputy Sheriff Zane Seipler’s wrongful termination suit, sent his associate Elizabeth Barton to try to get the judge to enforce a February 24th subpoena seeking emails over a 27-month period to and from present and former Sheriff’s Department employees, among other, Zane Seipler, yours truly, etc.  The time period pretty much covered the entire sheriff’s campaign.

Philpott, who did not received the subpoena until three days before it was due argued in a motion filed March 9th that

• the three day period was inadequate,
• he was not a party to the case,
• what was requested was irrelevant to the case

Judge Mahoney immediately asked the contents of the subpoena.

Gus Philpott leaves the Federal Courthouse in Rockford free from a subpoenas asking for emails relating to the Sheriff's deputies, preset and past, Zane Seipler, Cal Skinner, etc.

It became clear quite quickly that Nygren’s defenders were seeking the names of deputies who may have provided information to Philpott which the Sheriff would rather have been kept secret, information that Sotos associate Elizabeth Barton said was “confidential to the Sheriff’s Department.”

How would the information be used, Magistrate Mahoney wanted to know.

“During depositions” was all I got down before Mahoney asked, “To impeach witnesses. I’m not quite sure (I understand).

James Sotos Associate Elizabeth Barton leaves the Federal Courthouse.

“You understand that he’s not a party?” he continued before asking about the 27-month period.

Barton said they were looking for “anything relevant to the (case) about what certain deputies may have said during roll call.”

Addressing Philpott, the judge said,
“If you had done a blog and you had put in the blog, ‘I know who robed a bank,’ obviously they could (subpoena that information)?”

After making that point, Mahoney said, “This seems to me awfully broad. You’re going to have to get more surgical in this. What do you want and why you’re after it.”

So, the Motion to Quash was granted because the scope of the information (emails) sought was overbroad– covering a 27-month period and thereby unduly burdensome on a non-party to the case.

“I’ll give you one more try. If you found information that was relevant…has to be relevant to this law suit.”

At this stage, Philpott started writing down what Barton said.

According to him, Barton said, “(Seipler) was terminated for complaining about racial profiling.”

If that’s what she said, it seems to me that’s what Seipler’s wrongful termination case is all about.

“But couldn’t you ask Mr. Seipler?” Mahoney asked.

“We’re looking for the identification of the deputies (who made the information public and so far we haven’t found them),” Barton replied.

Philpott was given an opportunity to talk at this point.

As soon as he mentioned that the subpoena was overly broad, the judge said, “I’ve got that.”

Philpott continued that “certain screen names are unfamiliar to me” (some commenters emails had been requested) and complained about the volume of emails over the 27-month period.

He didn’t get to say much before Mahoney ruled,
“I’m going to quash this subpoena and give you a second chance.”

He warned that it had to be “reasonable.” He also commented on the burden that it wold place on “a third party.”