McHenry County Blog

That headline pretty much summarizes the final question Federal Judge Frederick Kapala had to decide in whether or not to dismiss former McHenry County Sheriff Deputy Scott Milliman’s wrongful termination suit.

The Judge points out it had to determine “whether the constitutional right violated was clearly established when defendants engaged in their retaliatory actions…

“In this case, it means that Milliman must show that the law was clearly established that a sheriff could not terminate a deputy sheriff for providing true testimony, pursuant to a subpoena and while under oath, that the sheriff and other deputies had engaged in illegal and otherwise corrupt activities.”

The Judge then cites the 2007 case of Morales v. Jones.

The case found that a police chief could not take retaliatory action against a subordinate for exposing corruption by the chief in a sworn deposition in a civil case.

“Accordingly, based on the facts as alleged in the complaint,” Kapala wrote, “Milliman has met his burden to demonstrate that the law was clearly established at the time of the violation, and therefore this court declines to dismiss Milliman’s complaint based on [a concept called] ‘qualified immunity.’”

Milliman’s wrongful termination suit was filed in December, 2011.

He was fired on August 17, 2011.

To read the entire decision, click here.

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Article one is here.

Article two is here.

While half of Scott Milliman’s court case counts were dismissed by Federal Judge Frederick Kapala, three remain.

Two are based on unconstitutional violations of former McHenry County Sheriff’s Deputy Scott Milliman’s rights of free speech under the First Amendment.

To put it in the Judge’s words, “This court finds that Milliman’s complaint plausibly sets out a claim for relief as to the first element of the Connick-Pickering test [whether "the speech in question addresses a matter of public concern"].

“The context of Milliman’s speech centered around illegal actions allegedly being performed by the McHenry County Sheriff and his deputies. The content of Milliman’s speech, then, unquestionably concerns matters of public concern.”

As the case states, “Speech that accurately exposes official impropriety or corruption may certainly be described as highly critical of the officials it targets, yet it has generally been accorded the greatest level of First Amendment protection.

“The context of the speech, at least alleged in the complaint, was that Milliman was subpoenaed to testify in a deposition and…his speech was mandatory and required to be truthful under penalty of perjury,” the decision continues.

“There is nothing in the instant case to suggest that Milliman has had any personal stake in the accusations against Nygren and other deputies.

“Finally, in a verbal deposition provided under subpoena…courts typically consider [it] a protected form of expression.

“Accordingly based on the allegations in the complaint which this court is required to accept as true at this stage the complaint plausibly sets out a constitutional violation.”

Judge Kapala lays out the six elements of the “Pickering” case balancing test:

1. whether the speech would create problems in maintaining discipline or harmony among co-workers
2. whether the employment relationship is one in which personal loyalty and confidence are necessary
3. whether the speech impeded the employee’s ability to perform (his) responsibilities
4. the time, place and manner of the speech]
5. the context within which the underlying dispute arose
6. whether the speaker should be regarded as a member of the general public

“Defendants argue that, because Milliman made particularly vicious claims in his deposition testimony–including accusing Nygren of solicitation of two murders and human trafficking–and that police agencies are given more leeway to discipline employees given the rigid structure of police command…that his court should set aside the fact that there is little on the record to perform the Pickering balance test and dismiss the case nonetheless.

“The court notes, however, that the fact Milliman made potentially damning accusations against Nygren cuts both ways.

“In his complaint, Milliman alleges that all of his deposition testimony was truthful.

“Accepting that allegation as true, as the court is required to do at this point, Milliman’s exposure of murderous and felonious activities carried out by the McHenry County Sheriff and his deputies would receive extra protection under the First Amendment as being of particular concern to the general public and vital to informed decision-making.

“Accordingly, although those allegations may be extra disruptive to police discipline, truthful allegations of the same behavior would illuminate a serious deficiency in a public official of significant authority and trust.

“Nevertheless, there are still many issues in this case that are not yet sufficiently developed to permit the court to do any intelligent analysis of the factors set out in Gustafson.

“Accordingly, because the complaint sets that Milliman’s speech is a matter of public concern and because it is not possible on this record to determine whether the employer interest in maintaining discipline outweighed Milliman’s interest in free speech, the court finds that the complaint plausibly alleges a constitutional violation.”

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Part one is here.

Article two is here.

Article three is here.

Federal District Court Judge Fredrick Kapala refused to dismiss a second case brought by two men fired by McHenry County Sheriff Keith Nygren, this time the one brought by Scott Milliman.

Milliman was fired by Nygren for testifying in a required deposition in the case of now-reinstated Deputy Zane Seipler.

In his testimony, Milliman, to put it in the words of Monday’s decision, “alleged

1. excessive force used by other deputies
2. retaliation that Milliman and other deputies faced for reporting unlawful conduct
3. Nygren’s involvement in ‘ticket fixing’
4. Nygren’s acceptance of bribes
5. Nygren’s involvement in a fraudulent scheme to procure SBA [Small Business Administration] loans and then share the proceeds while permitting the loans to go into default
6. ‘general corruption’ within the Sheriff’s Office”

“Milliman also accused Nygren of soliciting him to commit two murders on Nygren’s behalf and of receiving payment to smuggle illegal aliens into the country.”

Retaliation up to and including firing are alleged by Milliman in his request for reinstatement and damages.

The Judge dismissed three of six counts, gave permission to explicitly name Undersheriff Andrew Zinke in another county and denied permission to include, along with Nygren, Zinke, John Miller, Steven Schmitt and Ken Nielson in two deprivation of First Amendment rights counts.

The Court also refused to rule out the possibility that Milliman might be reinstated in his job as Sheriff’s Deputy.

“Defendants boldly state, without further explanation or citation to any particular portion of the complaint, that ‘reinstatement would not be reasonable or feasible under the facts pleaded in the complaint,’” the decision reads.

“The court is not persuaded,” the next sentence reads.

“The command structure at the MCSO could change in the interim during this litigation…Nygren is an elected official who could be voted out of office, or choose to retire, prior to any order of reinstatement being issued…that portion of defendants’ motion is denied.”

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Article one is here.

Article two is here.

Article three is here.

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.

That’s what I read from the following summary of McHenry County Sheriff Keith Nygren’s attorney James Sotos’ attempt to obtain dismissal of Deputy Sheriff Zane Seipler’s wrongful termination suit.

This case involves a dispute between plaintiff, Zane Seipler, and defendants, Sheriff Keith Nygren and other members of the McHenry County Sheriff’s Office (“MCSO”).

Plaintiff alleges, among other things, that defendants have retaliated against him for exercising his First Amendment rights by speaking out against what he perceived to be racial profiling that was taking place within the MCSO. But the court is far from resolving the merits of that dispute.

Instead, since at least June 2011, the case has taken a substantial detour as the parties have vigorously fought over whether plaintiff violated a protective order by uploading confidential discovery documents to one or more blogs that he created and then lied to the court in order to conceal his actions.

Because defendants are seeking dismissal of the entire case as a sanction for plaintiff’s alleged misconduct, the court held an evidentiary hearing on the matter. FN1

That hearing spanned a total of nine days, was very contentious and revealed deep-seated resentment and bitterness among the parties, FN2 and brought into question whether plaintiff was truly interested in vindicating his rights in this matter or was merely using the court as a public forum for his efforts to disgrace and discredit Sheriff Nygren. FN3

Currently before the court is defendants’ supplemental motion for sanctions pursuant to Federal Rule of
Civil Procedure 37(b) and the court’s inherent authority. FN4 The court also reviewed plaintiff’s response in opposition to the motion and defendants’ reply; defendants’ previous two motions for sanctions and the responses, replies, and supplemental submissions thereto; the transcript of the evidentiary hearing as well as the exhibits admitted into evidence during the hearing; and the parties’ post-hearing briefs  FN5

Based on this review, and as discussed in further detail below, the court declines to dismiss the entire case as a sanction but finds that a monetary sanction against plaintiff is warranted.

I. LEGAL STANDARDS

“The district court may dismiss a case for discovery violations or bad faith conduct in litigation under Federal Rule of Civil Procedure 37 or under the inherent authority of the district court.” Greviskes v. Univs. Research Ass’n, Inc., 417 F.3d 752, 758 (7th Cir. 2005). “[C]onsidering the severe and punitive nature of dismissal as a discovery sanction, a court must have clear and convincing evidence of willfulness, bad faith or fault before dismissing a case.” Maynard v. Nygren, 332 F.3d 462, 468 (7th Cir. 2003); see also Salmeron v. Enter. Recovery Sys., Inc., 579 F.3d 787, 793 (7th Cir. 2009) (“Sanctions meted out pursuant to the court’s inherent power are appropriate where the offender has willfully abused the judicial process or otherwise conducted litigation in bad faith.”). “The quantum of proof required for specific sanctions varies depending on the severity of the sanction,” and therefore, a less drastic sanction “which reduces prejudice to the non-offending party, requires only a preponderance of the evidence.” FN6 Larson v. Bank One Corp., No. 00 C 2100, 2005 WL 4652509, at *9 (N.D. Ill. Aug. 18, 2005) (quotation marks omitted). In their post-hearing briefs, the parties agree that current Seventh Circuit precedent requires the court to apply the “clear and convincing” standard in
determining whether dismissal is appropriate. FN7

The Seventh Circuit has cautioned that “a dismissal with prejudice is a harsh sanction which should usually be employed only in extreme situations . . . .” Marrocco v. Gen. Motors Corp., 966 F.2d 220, 224 (7th Cir. 1992) (alteration and quotation marks omitted); see also Wade v. Soo Line R.R. Corp., 500 F.3d 559, 564(7th Cir. 2007) (recognizing that “dismissal should not be used lightly”); Dotson v. Bravo, 321 F.3d 663, 667 (7th Cir. 2003) (explaining that “to dismiss for discovery violations is perceived as a ‘draconian’ measure” and “should be employed sparingly”). Therefore, “although a district court has the discretion to fashion an appropriate sanction for misconduct that occurs before it, in selecting the powerful option of terminating the underlying action in favor of one party, the court must be guided by a certain measure of restraint.” Barnhill v. United States, 11 F.3d 1360, 1367 (7th Cir. 1993).

As a general rule, “the severity of a sanction should be proportioned to the gravity of the offense.” Allen v. Chi. Transit Auth., 317 F.3d 696, 703 (7th Cir. 2003); see also Wade, 500 F.3d at 564 (“The punishment should fit the crime, so fees and fines-which can be scaled as appropriate-often are the best sanctions.”); Tama Plastic Indus. v. Pritchett Twine & Net Wrap, L.L.C., No. 1:11–cv–783–JMS–DKL, 2012 WL 1912578, at *5 (S.D. Ind. May 25, 2012) (“[S]anctions for violations of protective orders must be proportionate, practical, and compatible with other important interests such as deciding claims on their merits, achieving correct decisions, and maintaining the efficiency of litigation and judicial decision-making.”). Therefore, before dismissing a case as a sanction, the court must first “consider[] and explain[] why lesser sanctions would be inappropriate.” Maynard, 332 F.3d at 468; see also Brown v. Columbia Sussex Corp., 664 F.3d 182, 192 (7th Cir. 2011) (“The district court should consider less severe sanctions than dismissal for a party’s noncompliance with court orders . . . unless there exists a clear record of delay or contumacious conduct or when less drastic sanctions have proven ineffective.” (emphasis and quotation marks omitted)). But see Dotson, 321 F.3d at 667 (“[I]t is axiomatic that the appropriateness of lesser sanctions need not be explored if the circumstances justify imposition of the ultimate penalty-dismissal with prejudice.”).

II. FACTUAL FINDINGS

A. Disciplinary Files

In order to fully understand the dispute in this matter, it is important to trace the history of the confidential documents that were ultimately disclosed to the public and became the subject of defendants’ sanctions motion. In 2010, plaintiff made a discovery request for the disciplinary files of eighteen former and current law enforcement officers from the MCSO. See Tr. at 44; Defs.’ Ex. 1; Doc. 91 at 1. Because of the sensitive and confidential nature of the information contained in these documents, the parties agreed to the entry of an amended protective order to prevent this information from being disclosed to the public. Doc. 91 at 1-2. Within the amended protective order, the parties agreed that “the disciplinary files of any former or current employee of the McHenry County Sheriff’s Office . . . shall be designated ‘Confidential’ . . . [and] shall further be designated ‘For Attorney and Parties’ Eyes Only.’” Doc. 94 ¶ 7. With limited exceptions not applicable here, the parties further agreed that “these [disciplinary] files and the information contained therein will not be disclosed to any person not a party to the instant matter or his or her attorney . . . .” Id.

With an agreement in place on the amended protective order, FN8 defense counsel retrieved approximately 3,000 pages of disciplinary files from the MCSO that were responsive to plaintiff’s discovery request. Tr. at 44. A paralegal assigned to the case scanned each document into a computer and redacted certain confidential material, such as names of arrestees, dates of birth, and Social Security numbers. Tr. at 45, 173. The documents were then stamped “CONFIDENTIAL: FOR ATTORNEY & PARTIES’ EYES ONLY IN CASE NO. 08-50257” and given a Bates stamp number. Tr. at 48, 173; see also Defs.’ Ex. 10. These documents, with the redactions and confidential designation, were uploaded to a CD and tendered to plaintiff’s counsel in electronic format. Tr. at 48, 174. Defense counsel never disclosed the redacted version of the disciplinary files to anyone other than plaintiff’s counsel. FN9 Tr. at 176-77. Thereafter, plaintiff’s counsel provided the files to plaintiff either via an email with an attachment or on a disk, and plaintiff downloaded the files to his computer. Tr. at 280. Plaintiff testified that he printed out more than one hundred of these files in preparation for various depositions and either carried them around with him to various meetings with his attorney or kept them at home near his computer. Tr. at 281, 283-84.

On June 6, 2011, one of defendants’ attorneys, Elizabeth Barton, discovered a new blog on the Internet known as “The Real MCSO Exposed,” which was available at http://www.realmcsoexposed.blogspot.com and contained several documents that appeared to be official documents from the MCSO. Tr. at 174-76; Defs.’ Ex. 9. After reviewing the documents posted on the blog, including the enlarged view of each document, Barton determined that these documents were part of the confidential disciplinary files that were provided to plaintiff’s counsel during discovery. Tr. at 177-78, 182. Specifically, Barton noticed that the documents on the blog were redacted in the same manner as the documents that she had provided to plaintiff’s counsel during discovery. Tr. at 176, 180. According to Barton, a side-by-side comparison of the documents revealed that the documents posted on the blog were the same as the documents produced during discovery, except that the confidential stamp and the Bates numbering had been removed from the documents on the blog. Compare Defs.’ Ex. 9 at 15-45 with Defs.’ Ex. 10; see also Tr. at 181-82.

Based on the foregoing sequence of events and the court’s independent comparison of the documents posted on The Real MCSO Exposed blog, Defs.’ Ex. 9, with the documents produced during discovery, Defs.’ Ex. 10, it is clear that these were the same documents. FN10

The redacted disciplinary files were only disclosed to plaintiff’s counsel, who in turn passed them along to plaintiff. Therefore, when the same redacted documents were posted on The Real MCSO Exposed blog at http://www.realmcsoexposed.blogspot.com, it was evident that these documents somehow originated from the discovery materials that were sent to plaintiff’s counsel and that an intentional disclosure of these documents would be a violation of the agreed protective order.

B. Defendants’ First Motion for Sanctions

On June 7, 2011, Barton sent plaintiff’s counsel a letter explaining her discovery of the documents posted on The Real MCSO Exposed blog and her belief that there was a violation of the protective order. See Defs.’ Ex. 6 (“It is clear that you or your client either posted the information on the blog directly or provided these materials to a person not a party to this lawsuit.”). After plaintiff’s counsel denied that either he or his client had posted those documents on the Internet, defendants filed their first motion for sanctions regarding the disclosure of the disciplinary files. Tr. 185-86; see also Doc. 238. In the motion, defendants argued that the documents must have been given to a third person in violation of the protective order either by plaintiff’s counsel or by plaintiff. FN11 Doc. 238 at 7. Defendants asked the court to find that plaintiff had violated the protective order and also that he “flagrantly and inappropriately misused this litigation to pursue his own agenda of smearing the Sheriff, the department and individual officers.” Id. at 8. As a sanction, defendants asked that plaintiff be precluded from introducing into evidence any of the disciplinary matters that were improperly disclosed, and that plaintiff, his counsel, or both be ordered to pay defendants the reasonable expenses, including attorney’s fees and costs, associated with filing their motion. Id.

In his response, filed on June 21, 2011, plaintiff argued that defendants’ accusations were “devoid of evidence,” and that neither he nor his counsel had any knowledge “as to who has disclosed the documents to the unknown blogger.” Doc. 249 ¶ 1. In support of his position, plaintiff submitted an affidavit in which he swore to the following:

1. I do not know who owns the website, http://realmcsdexposed.blogspot.com/. I have not knowingly had a conversation with the owner of this website.
2. I did not disseminate the documents that are the subject of Defendants’ Motion for Sanctions to any individuals, including the owner of the above referenced website.
3. Additionally, I do not know how the owner of the website http:/realmscdexposed.blogspot.com/ [sic] was able to obtain the documents from my civil case.

Id. at Ex. A. The court notes that the web address listed in plaintiff’s affidavit is not the same as the web address for The Real MCSO Exposed blog where the offending documents were discovered, but both plaintiff’s counsel and plaintiff conceded at the evidentiary hearing that this was merely a typographical error. Tr. at 37-38, 447-48. Therefore, for purposes of the current motion for sanctions, the court will assume that plaintiff intended to refer to the website http://www.realmcsoexposed.blogspot.com in his affidavit. Plaintiff’s attorney, Blake Horwitz, submitted a similar affidavit, although the web address listed in his affidavit also was incorrect when it referenced “http://mcsdexposed.blogspot.com/.” FN12 Doc. 249 at Ex. A.

In his response, plaintiff also directed the court’s attention to another new blog known as Shadow’s MCSD, available at http://shadowmcsd.blogspot.com. Id. ¶¶ 2-3; see also Defs.’ Ex. 31. This blog contained some of the same disciplinary files that had been posted to The Real MCSO Exposed blog, as well as portions of the personnel file for Sheriff’s Deputy Scott Milliman. Tr. at 187. Plaintiff relied on the discovery of the newly created Shadow’s MCSD blog in order to cast doubt on defendants’ accusations that he was responsible for the documents posted on The Real MCSO Exposed blog. According to plaintiff, the fact that “another blogger . . . has surfaced” demonstrated that there was “unrest at the department,” and he claimed that the MCSO has many defectors who are willing to reveal departmental documents in order to “expose the misconduct of the Sheriff and his staff.” Doc. 249 ¶¶ 2-4.

C. Computer Evidence

While defendants’ first motion for sanctions was still pending, defendants received additional evidence that they had subpoenaed from Google, Yahoo!, and Comcast regarding the various web addresses, e-mail addresses, and IP addresses at issue in this case. As outlined below, this evidence provided compelling support for defendants’ claim that plaintiff had violated the protective order, as all of the evidence pointed directly to either plaintiff or plaintiff’s home computer.

First, plaintiff admits that he created the e-mail address zaneseipler@yahoo.com. Tr. at 275. This fact is confirmed by the subpoena response from Yahoo!. See Defs.’ Ex. 21 at SUBP. – YAHOO 000010. The evidence received from Yahoo! also indicates several IP addresses that were associated with this account, including the IP address 98.206.53.78. Id.

Next, plaintiff admits that he created the e-mail address SKNout4good@gmail.com. FN13 Tr. at 275. The evidence received from Google confirms that Zane Seipler, using a secondary e-mail address of zaneseipler@yahoo.com, created this account in November 2009. Defs.’ Ex. 17 at SUBP. – GOOGLE 000027; see also Defs.’ Ex. 33 ¶¶ 3-7. The response from Google also indicates that, on several occasions in June and July 2011, the SKNout4good@gmail.account was accessed from IP address 98.206.53.78. Defs.’ Ex. 17 at SUBP. – GOOGLE 000027.

Plaintiff’s e-mail address SKNout4good@gmail.com is the link that appears to tie plaintiff directly to The Real MCSO Exposed blog that was the subject of defendants’ first motion for sanctions. According to Google, on May 27, 2011, someone with the username SKNout4good@gmail.com created the blog located at http://www.realmcsoexposed.blogspot.com. Defs.’ Ex. 16 at SUBP. – GOOGLE 000009; Defs.’ Ex. 33 ¶ 20. At the time this blog was created, and at the time a post was made to the blog, Google captured the IP address 98.206.53.78. Defs.’ Ex. 16 at SUBP. – GOOGLE 000009; Defs.’ Ex. 33 ¶¶ 21, 23. The same blogger account, identified by User Key 1039390951953, that created the blog located at http://www.realmcsoexposed.blogspot.com also had created, but then later deleted, a blog located at http://mcsoexposed.blogspot.com. Defs.’ Ex. 16 at SUBP. – GOOGLE 000009; Defs.’ Ex. 33 ¶¶ 18-19.

Additional evidence from Google indicates that Zane Seipler’s Blog, located at http://mcsdexposed.blogspot.com, was also created by someone with the username SKNout4good@gmail.com, the User Key 1039390951953, and the IP address 98.206.53.78. Defs.’ Ex. 25 at SUBP. – GOOGLE 000044; Defs.’ Ex. 33 ¶¶ 27-29. Plaintiff has admitted, and there is no disputing, that this was plaintiff’s personal blog. Tr. at 304; see also Defs.’ Ex. 32. This evidence from Google also indicates that the owner of Zane Seipler’s Blog was the same as the owner of the blog located at http://mcsoexposed.blogspot.com. Defs.’ Ex. 25 at SUBP. – GOOGLE 000044; Defs.’ Ex. 33 ¶ 28. At a previous hearing before the magistrate judge, plaintiff’s counsel stated that plaintiff had created the blog at http://mcsoexposed.blogspot.com “a couple years ago.” Defs.’ Ex. 23 at 13.

The final piece of evidence that establishes plaintiff’s link to The Real MCSO Exposed blog comes from the subpoena response from Comcast. This evidence demonstrates that plaintiff subscribed to Comcast’s High Speed Internet Service in June 2011 and was assigned the following IP address: 98.206.53.78. Defs.’ Ex. 26. This is the same IP address that is linked to both of plaintiff’s e-mail addresses and all of the blogs created with the username SKNout4good@gmail.com. Based on all of this evidence, it is clear that The Real MCSO Exposed blog was created with plaintiff’s e-mail address,  SKNout4good@gmail.com, it was created from the same blogger account with User Key 1039390951953 that was used to create plaintiff’s two personal blogs, and it was created from plaintiff’s home computer with the IP address of 98.206.53.78.

The remaining computer evidence relates to the Shadow’s MCSD blog located at
http://shadowmcsd.blogspot.com. According to Google, this blog was created on June 18, 2011, by someone with the username shadow.mcsd@gmail.com. Defs.’ Ex. 30 at SUBP. – GOOGLE 000018; Defs.’ Ex. 33 ¶ 33.Business records from Google indicate that the e-mail address shadow.mcsd@gmail.com was created the same day, on June 18, 2011, by someone with a fictitious name, Shadow D, and a nickname of “Screw You Nygren.”  Defs.’ Ex. 22 at SUBP. – GOOGLE 000035; Defs.’ Ex. 33 ¶¶ 11-12. At the time both the e-mail address and the Shadow’s MCSD blog were created, and at the time posts were made to that blog, Google captured the IP address 98.206.53.78. Defs.’ Ex. 22 at SUBP. – GOOGLE 000035; Defs.’ Ex. 30 at SUBP. – GOOGLE 000018; Defs.’  Ex. 33 ¶¶ 13, 34, 37. Based on this evidence, and in particular the IP address that was captured by Google at each stage of its creation, the court finds that the Shadow’s MCSD blog was also created by someone with access to plaintiff’s home computer.

D. Defendants’ Second Motion for Sanctions

As the computer evidence began to unfold linking plaintiff’s e-mail address and IP address to The Real MCSO Exposed blog, defendants filed a second, or supplemental, motion for sanctions. FN14 In this motion, filed on August 11, 2011, defendants alleged that plaintiff was the author of The Real MCSO Exposed blog and that he lied to the court when he submitted his affidavit disclaiming any knowledge of how the confidential documents appeared on that blog. See Doc. 266 at 3. Based on these allegations, defendants argued that plaintiff “flagrantly abused the judicial process, displaying willfulness and bad faith,” that his conduct was “abhorrent,” “perjurious,” and “egregious,” and that dismissal of the case, as well as imposition of attorney’s fees and costs, was an appropriate sanction for this type of misconduct. FN15 Id. at 5-9.

Despite the serious nature of defendants’ second motion for sanctions, plaintiff filed a very brief response on September 7, 2011, that was largely irrelevant, see Doc. 285 ¶¶ 2-3, or plagued by inaccuracies, see id. ¶¶ 6-7.

Critically, however, plaintiff made the following statements:

4. Plaintiff previously submitted an affidavit explaining his position relative to Defendants’ pending motion. Plaintiff’s affidavit was not perjurious.

5. Based on Plaintiff’s affidavit, Defendants’ motion for sanctions, claim of perjury and fees should be denied.

Id. ¶¶ 4-5. Thus, despite the new evidence that had surfaced linking his e-mail address to The Real MCSO Exposed blog, plaintiff continued to rely on his affidavit in which he claimed to have no knowledge of who created that blog or how the owner of that blog was able to obtain copies of the confidential discovery documents.

On September 23, 2011, plaintiff’s attorney, Blake Horwitz, made a similar argument before Magistrate Judge Mahoney:

What [defense counsel has] done is he’s presented a lot of information from Google. There’s not one affirmative statement from anybody saying anything. The only affirmative statement that you can accept, based upon notions of Federal Rules of Evidence, is an affidavit that you’ve received. My client has specifically set forth in the affidavit exactly what he has said.  And all the rest of what you hear is simply an attorney talking.

Defs.’ Ex. 23 at 10. FN16 Later, when the court asked Horwitz how an anonymous blogger could have gotten the confidential documents, the following exchange occurred:

Mr. Horwitz: I’m not saying they got these documents. I am just simply saying to you that – -

The Court: Didn’t the documents show up on the websites?

Mr. Horwitz: Yes.

The Court: Well, then how would somebody that just made up their own blog have the documents to begin with to put them there?

Mr. Horwitz: I don’t have an answer to that question. What I can say to you is how is it that the deposition transcript of Scott Milliman got to the paper? How is it that – - which as I understood was confidential before it was tendered to the newspaper. How is it that the confidential police report concerning my client and his wife was given to multiple police officers. How is it that things happen. I’m just giving you a rhetorical answer to the question.

Id. at 13-14.

In a memorandum opinion and order, Magistrate Judge Mahoney reviewed defendants’ pending motions for sanctions and found “circumstantial evidence that Plaintiff is or has been involved with the blogs in question, and circumstantial evidence that it was Plaintiff who posted the confidential documents to the particular blog.” Doc. 316 at 6. Because the Magistrate Judge also found that this evidence “rises to a level where the sanction of dismissal merits consideration,” he transferred the motions to this court for further ruling. Id. at 7.

E. Plaintiff’s Explanation at the Evidentiary Hearing

If the foregoing was the only evidence presented, the court would have no trouble finding by clear and convincing evidence that plaintiff created The Real MCSO Exposed blog, posted confidential disciplinary files to that blog in violation of the protective order, lied to the court in his affidavit when he disclaimed any knowledge about that blog, and intentionally tried to deceive the court by creating and then referencing the Shadow’s MCSD blog in his response to defendants’ first motion for sanctions. After all, defendants have presented definitive proof that The Real MCSO Exposed blog was created with plaintiff’s e-mail address, that it was created from plaintiff’s home computer, and that the confidential disciplinary files posted to that blog were the same redacted files that were disclosed to plaintiff during discovery. However, that is not the only evidence before the court.

At the evidentiary hearing, plaintiff presented an alternative explanation for how the disciplinary files came to be posted on The Real MCSO Exposed blog, namely that his wife, Rosalinda Seipler, created the blog and posted the documents without his knowledge. FN17 See Tr. at 318-19, 334-35, 1385, 1397, 1463-65, 1489-90. Specifically, Rosalinda testified that she found some documents in an office area in the upstairs loft, started reading them, and then decided to post those documents on the Internet so that “people will see . . . that all this information has been covered up about these deputies.” Tr. at 1386. Rosalinda “felt that [posting these documents] would keep [her] family safe” because “if the attention was focused on [the MCSO], [she] didn’t think they would do anything else to bring any more attention to themselves.” Tr. at 1585, 1597-98.

When asked to describe the process of creating the blog, Rosalinda first testified that she scanned the documents into the computer and saved them as image files. Tr. at 1391. She later explained that, in order to remove the confidential designation from the bottom of each page, she “took each page, and . . . laid it on [her] scanner . . . in such a way that the bottom part was not showing.” Tr. at 1528. Rosalinda also explained that in order to create the blog

you just type in like Google blogspot dot com or something like that, and then what will pop up is like a step-by-step how to create a blog. It gives you the templates, the settings, colors. You know, whatever you want to design it with, it gives you everything that you need.

Tr. at 1392; see also Tr. at 1393-94 (“[I]t’s very simple. I mean, you just follow the steps, the instructions.”). She also testified that, at the time she created The Real MCSO Exposed blog, the computer was already signed in to Google and she did not need to input any e-mail address or password in order to create the blog. Tr. at 1392-93, 1465. However, when Rosalinda tried to create a second blog a couple of weeks later, the Shadow’s MCSD blog, she had to create a new profile (which she did by using fictitious information) and log in to Google before she could create this new blog. Tr. at 1464-66, 1469.

At the hearing, plaintiff attempted to have Rosalinda demonstrate the blog-creation process to the court by using a courtroom computer that was connected to the Internet. See Tr. at 1703-13. During the demonstration, Rosalinda stated that she had “several” accounts with Google, but she was unable to remember the passwords or otherwise log in to any of these accounts. Tr. at 1706-07. Instead, Rosalinda created a new account named todayscourt@gmail.com and was able to log in to Google under that account. Tr. at 1707-10. However, when she was then asked to “create a blog,” she was not able to do so, and in fact, she could not even navigate to the correct website that was used to create the blogs that are at issue in this case. Tr. at 1712-13. After a short break, plaintiff abandoned the demonstration and instead entered into a stipulation with defendants that someone could create a new blog without being required to log in if the user of the Google account had previously logged in on that same computer. Tr. at 1714-16. Later, during plaintiff’s testimony, a similar demonstration was conducted, except that this time plaintiff was able to quickly and easily create several new blogs for the court, including multiple blogs without being required to first log in to Google. See Tr. at 1807-17; see also http://todayscourt2.blogspot.com/.

During the hearing, Rosalinda testified that she did not initially tell plaintiff that she had created these blogs because the two of them “had argued quite often about [Rosalinda] posting stuff through previous years” and plaintiff “didn’t want [Rosalinda] posting anything on the Internet. So, [she] didn’t tell anybody.” Tr. at 1397, 1473. However, Rosalinda said that she did eventually confess to plaintiff sometime in August 2011, after she heard him arguing with his attorney on the telephone. Tr. at 294, 1493-94; see also Tr. at 700-02. Rosalinda interrupted plaintiff while he was on the phone and told him that she had posted the documents. Tr. at 569. Rosalinda explained that she told plaintiff because she thought he was in “really big trouble” and “was going to be criminally charged” for posting the documents on the Internet. Tr. at 1494. Both plaintiff and Rosalinda testified that this revelation led to a “heated” argument that lasted all night, where plaintiff was angry and Rosalinda was crying. Tr. at 569-70, 1494.

Sometime during the same evening, Rosalinda spoke with plaintiff’s attorney, Blake Horwitz, who asked her “in a roundabout way” through the use of “hypothetical scenarios” whether Rosalinda knew who posted the documents. Tr. at 1495. Although Rosalinda told Horwitz that she would “go tell the judge anything,” she refused to tell him whether she had posted the documents or not. Tr. at 704, 1495. In response, Horwitz recommended that Rosalinda should get a lawyer, and, at that point, he suspected or believed it was possible that she had something to do with the documents being posted on the Internet. Tr. at 705, 724, 734, 1670.

Based on his belief that there were ethical concerns and a potential conflict of interest, Horwitz did not “push the issue” any further and just “left it at that,” even though he believed that Rosalinda “could have provided . . . information that would be a defense” to the sanctions motion. Tr. at 724-27, 734. The prospect of retaining a lawyer for Rosalinda had also been raised by plaintiff sometime during their argument that night and Rosalinda had independently thought that she should not talk to anybody without a lawyer. Tr. at 570. Later, when asked why she did not just tell defense counsel that she had posted the documents, she explained that she “just didn’t know if [she] was in trouble or not” and thought that she “needed to speak to [her] lawyer first.” Tr. at 1500. Rosalinda eventually retained an attorney and was represented by counsel at the hearing. FN18

III. LEGAL CONCLUSIONS

A. Sanctions under Rule 37(b)

Based on the factual record discussed above, the court finds, by clear and convincing evidence, that plaintiff willfully and in bad faith violated the agreed protective order by posting confidential discovery documents on The Real MCSO Exposed blog or by directing his wife to post the documents. FN19 See Maynard, 332 F.3d at 468.

However, given the nature of this violation and its tangential relationship to the merits of the instant litigation, the court concludes that the “harsh sanction” of dismissal is not appropriate in this case. Marrocco, 966 F.2d at 224; see also Tama Plastic, 2012 WL 1912578, at *5 (“[S]anctions for violations of protective orders must be proportionate, practical, and compatible with other important interests such as deciding claims on their merits, achieving correct decisions, and maintaining the efficiency of litigation and judicial decision-making.”). It is worth noting that defendants initially only sought a modest sanction of barring plaintiff from introducing any evidence of the disciplinary matters that were improperly disclosed and their fees and costs associated with that motion.

As noted above, the court agrees that there is a substantial amount of circumstantial evidence to indicate that plaintiff created the blogs in question and posted the confidential documents in order to expose what he perceives to be inequities at the MCSO. The unique nature of the redacted documents coupled with the computer evidence showing that The Real MCSO Exposed blog was created with plaintiff’s e-mail address, his home computer’s IP address, and the same blogger account that was used for plaintiff’s personal blogs is very compelling evidence in support of defendants’ motion for sanctions. In addition, plaintiff’s familiarity with the process of creating a blog, which he was easily able to show to the court (in stark contrast to his wife’s feeble attempt at doing the same), clearly demonstrated to the court that plaintiff, either directly or through his wife,
was the person responsible for the creation of both The Real MCSO Exposed blog and Shadow’s MCSD blog.

The court recognizes that plaintiff presented contradictory evidence that his wife was solely responsible for the creation of these blogs, but the court found this testimony to be thoroughly unconvincing for many reasons. For example, Rosalinda testified that she just “found” the documents that were eventually posted on The Real MCSO Exposed blog in an upstairs office area and “just started reading them.” Tr. at 1386. There is no good explanation, however, for how these particular documents – out of approximately 3,000 electronically transmitted disciplinary files – happened to be printed out and left where Rosalinda could find them. FN20 Rosalinda also tried to explain how she created the blog, but her testimony that it was “very simple” to do and only required her to follow a “pop up” with “step-by-step” instructions, Tr. at 1392-94, was quickly belied by her failed attempt to demonstrate the process to the court, Tr. at 1712-13. Furthermore, Rosalinda’s alleged motivation for posting the documents in order to keep her family safe did not make any sense and was not believable. Tr. at 1585, 1597-98. Specifically, the court fails to see how posting old disciplinary files of MCSO officers could provide any sort of protection, assuming for the sake of argument that such protection was needed, given that the documents were posted to an anonymous blog, and if Rosalinda was truly afraid of Sheriff Nygren, it does not make much sense to provoke him either.

The court also finds unbelievable the testimony that Rosalinda was able to somehow keep her alleged blogging activities a secret from plaintiff for over two months, and that plaintiff was oblivious to what was going on. This case is clearly an important event in their lives and the court finds it incredible that, given this significance, plaintiff and Rosalinda did not discuss the pending sanctions motions or talk about how the allegedly anonymous author of the blogs (from plaintiff’s perspective, at least) could have obtained and posted the confidential disciplinary files that had been tendered to plaintiff during discovery. Moreover, because The Real MCSO Exposed blog was created under plaintiff’s Google account – the same account he was actively using for his personal blog FN21 – it seems unlikely that this new blog would have gone unnoticed by plaintiff.

Finally, the court had the opportunity to carefully observe the manner and demeanor of plaintiff and Rosalinda while they were testifying, and the court finds that neither one of them was telling the truth. Although plaintiff and Rosalinda testified consistently with one another, their testimony seemed to be based on a fabricated narrative that conveniently explained what had transpired, as opposed to testifying truthfully to what actually happened. There is no justification for such a blatant disregard of the oath that they each took, and their willingness to repeatedly lie to the court in order to protect this case from the possibility of being dismissed is an affront to the integrity of this court.

For all these reasons, the court finds that a sanction against plaintiff is warranted based on his willful and bad faith violation of the agreed protective order. Pursuant to Rule 37(b), there are a number of possible sanctions that could be imposed based on plaintiff’s disobedience, including dismissal of this case. As noted above, however, the court finds that dismissal is not appropriate under the circumstances of this case. Instead, because plaintiff’s conduct caused an enormous amount of delay and resulted in additional legal expenses for defendants, whose attorneys had to prepare for and participate in nine days of hearings on this issue, the court finds it appropriate to order, pursuant to Rule 37(b)(2)(C), that plaintiff “pay the reasonable expenses, including attorney’s fees,” that were caused by his misconduct. Fed. R. Civ. P. 37(b)(2)(C); see also Wade, 500 F.3d at 564 (explaining that an award of fees is often the best sanction). Due to the length and expansive nature of these proceedings, the court expects that defendants’ attorney’s fees and costs will be substantial, but plaintiff’s misconduct was serious: he caused an invasion of privacy to MCSO personnel and exposed them to public ridicule, and his lack of integrity harms the court system and threatens the administration of justice. As such, the court believes that a substantial penalty is warranted.

Accordingly, defendants shall submit to the court within 30 days a detailed listing and supporting documentation of all reasonable fees and costs they incurred as a result of plaintiff’s violation. Within 30 days thereafter, plaintiff may file a written response with specific objections, if any, to the proposed fees and costs.

B. Sanctions under Inherent Authority

In their motion, defendants also seek dismissal as a sanction pursuant to the court’s inherent authority. See, e.g., Barnhill, 11 F.3d at 1367 (discussing a court’s “inherent power to sanction”). In order to grant this requested relief, the court would have to find that plaintiff “willfully abused the judicial process or otherwise conducted litigation in bad faith,” and that plaintiff’s “misconduct is serious enough to justify dismissal with prejudice.” Salmeron, 579 F.3d at 793. For the same reasons discussed above, the court does not believe that dismissal is appropriate in this case.

The fact that the court is unwilling to dismiss this case, however, does not mean that plaintiff is without fault or that some type of sanction should not be imposed. Even if the court were to assume that plaintiff and Rosalinda testified truthfully and that there was no violation of the protective order, plaintiff still knew sometime in August 2011 that his wife had created The Real MCSO Exposed blog and posted the confidential discovery documents on that blog, yet he did nothing at that time to alert the court to this fact or otherwise help bring about a speedy resolution to the pending sanctions motions. To make matters worse, in his September 7, 2011 response to defendants’ second motion for sanctions, plaintiff , through counsel, FN22 intentionally misled the court when he argued that defendants’ motion for sanctions should be denied based on his previously filed affidavit. See Doc. 285 ¶¶ 4-5. Plaintiff was similarly disingenuous at the September 23, 2011 hearing before the Magistrate Judge when his counsel again advanced plaintiff’s affidavit as “[t]he only affirmative statement that you can accept, based upon notions of Federal Rules of Evidence,” and failed to provide an adequate answer to the Magistrate Judge’s question about how somebody that just made up a blog could have obtained the discovery documents. Defs.’ Ex. 23 at 10. At the time these various statements to the court were made, even under plaintiff’s own version of the events, plaintiff already knew that his wife had obtained the documents and created The Real MCSO Exposed blog, and therefore, he knew that his affidavit was no longer accurate. If plaintiff had explained to the court what had happened instead of directing the court to evidence that he knew was inaccurate, this entire sanctions issue could have been resolved much more expeditiously. Plaintiff had no good faith basis to hide the truth from the court, and his unfounded fear of some sort of retribution against his wife by Sheriff Nygren or defense counsel is not a valid excuse.

Accordingly, even if the court’s credibility assessment was erroneous and a sanction under Rule 37(b) was not appropriate, the court would still find that an award of defendants’ reasonable attorney’s fees and costs would be an appropriate sanction against plaintiff. See Chambers v. NASCO, Inc., 501 U.S. 32, 45 (1991) (explaining that “an assessment of attorney’s fees is undoubtedly within a court’s inherent power” to impose as an appropriate sanction).

The court also considered whether there was any basis to sanction plaintiff’s attorney, Blake Horwitz, for his conduct in this case, as argued by defendants in their supplemental motion for sanctions. While there is some evidence to suggest that Horwitz improperly advanced plaintiff’s affidavit at a time when he knew, or at least strongly suspected, that it was no longer accurate, the court cannot find that Horwitz “willfully abused the judicial process or otherwise conducted litigation in bad faith.” Salmeron, 579 F.3d at 793. Based on Horwitz’s testimony, it appears that plaintiff and Rosalinda placed him in an awkward situation that raised the potential of a conflict of interest and other ethical concerns. Although Horwitz could have perhaps done more investigation into these concerns, FN23 the court cannot say that his advice to Rosalinda to talk to her lawyer or his subsequent interactions with the court were necessarily sanctionable acts. It is quite possible that plaintiff and Rosalinda withheld relevant information from Horwitz, which made it especially difficult for him to do his job.  Nevertheless, as this case moves forward, Horwitz, who acknowledges that he is an “officer of the court,” must always keep in mind that he has a duty to the court to “not knowingly misrepresent, mischaracterize, misquote, or miscite facts or authorities in any oral or written communication to the court.” See Standards for Professional Conduct within the Seventh Federal Judicial Circuit: Lawyer’s Duties to the Court, available at http://www.ilnd.uscourts.gov/HOME/_assets/_documents/rules/spc_pg3.pdf.

Based on the foregoing, the court denies defendants’ supplemental motion for sanctions to the extent it seeks dismissal of the lawsuit but grants the motion to the extent it seeks an award of attorney’s fees. As stated above, pursuant to both Rule 37(b)(2)(C) and this court’s inherent authority, plaintiff shall pay the reasonable expenses, including attorney’s fees and costs, caused by his misconduct, to be determined by the court after briefing on the issue is completed. Failure to pay these fees, once imposed, may result in future sanctions, including the case being dismissed.

As a final matter, and in the interests of judicial economy, the court strikes without prejudice any remaining motions that are currently pending. See Moser v. Universal Eng’g Corp., 11 F.3d 720, 723 (7th Cir. 1993) (“The inherent authority of the district court to . . . control its docket is well established.”). As noted earlier, the pending motions that were filed by plaintiff appear to be either a veiled response to defendants’ motions for sanctions or deal with issues that have already been litigated before the Magistrate Judge. The court is hopeful that this case can get back on track toward a resolution on the merits of plaintiff’s claims and none of the pending motions appear to advance that objective. To be clear, however, if plaintiff deems any of the motions that were stricken by this order necessary to an expeditious resolution of this case, he shall be free to refile them as needed. This case is referred back to Magistrate Judge Mahoney to resume litigation of the underlying complaint.

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Footnotes

1. In transferring defendants’ motion for sanctions to this court for ruling, the Magistrate Judge had already found that “the circumstantial evidence accompanying Defendants’ allegations rises to a level where the sanction of dismissal merits consideration.” Doc. 316 at 7. Based on this assessment, the court felt that an evidentiary hearing was the best way to guarantee that both sides were able to present all arguments for or against the requested sanction.

2. For example, plaintiff testified about times when he was scared that Sheriff Nygren might try to kill him, Tr. at 329, 339; plaintiff’s wife testified that she hated Sheriff Nygren, was afraid for her life and for her family, and felt like they were fighting the police, Tr. at 1358, 1456; and even plaintiff’s counsel testified to his belief that “people vehemently hated Zane just with a passion, vehemently hated that man. The sheriff hated him,” Tr. at 775.

3. Some of the court’s concern about plaintiff’s motivations for this lawsuit came from its review of “Zane Seipler’s Blog,” which was created and maintained by plaintiff and was available at http://mcsdexposed.blogspot.com. For example, a post dated June 24, 2010, reveals the following: “Zane will sit back and giggle as he continues the lawsuit proceedings. MCSDEX POSED will continue to annoy and anger department members by exposing whatever current nonsense they are wrapped up in. It will continue on for awhile and then after some more time and embarrassment the court battles will be over. Zane will return to work . . . to survey all the damage the Sheriff could have avoided. It will be wonderful.” Defs.’ Ex. 32 at 53.

In another post dated June 30, 2010, plaintiff references this case and asks for “[i]nformation about anything you may have experienced, seen or heard about regarding” the defendants. Id. at 76-77. Plaintiff professes that “[t]his information is the key to changing MCSD from what it is, to what it should be. It is the key to showing that Nygren doesn’t have a clue as to what is going on inside that place because he is never there. (It maybe [sic] the key to getting a new Sheriff.).” Id. at 77.
Plaintiff then goes on to say: “But these clowns don’t get it. The more we expose the better the chance some of them never work as police officers or EEO’s again. Maybe some of them will even go to jail.” Id.

These examples demonstrate plaintiff’s intent to annoy, anger, and embarrass members of the MCSO, to effectuate change at the MCSO, up to and including getting a new sheriff, and to cause others to either lose their jobs or go to jail based on their alleged misconduct. It is not clear, however, whether these intentions are in addition to his desire to prevail in this litigation, or if this merely demonstrates plaintiff’s true motives for pursuing this lawsuit. Nevertheless, the concerns noted here did not play any role in the court’s resolution of defendants’ supplemental motion for sanctions.

4. Defendants’ current motion, which was filed on February 2, 2012, is actually their third motion on this subject. At the time the court began the evidentiary hearing on January 26, 2012, it had before it defendants’ original motion for sanctions, filed on June 13, 2011, and their supplemental motion for sanctions, filed on August 11, 2011. At the hearing, plaintiff orally “move[d] to bar introduction of any evidence and . . . to preclude argument that anything after June 21st is a subject matter of any sanction.” Tr. at 128. In order to alleviate plaintiff’s concerns about a lack of notice and avoid such an arbitrary limitation, the court ordered defendants to supplement their sanctions motion with any additional allegations of plaintiff’s contumacious conduct. Tr. at 131.

5. There are also seven additional motions that were filed by plaintiff and are currently pending before the court. Plaintiff’s motion to bar witnesses [296] was previously denied as moot, Tr. at 4-5, although that disposition was never reflected on the docket. As for the remaining motions, it is apparent to the court that most, if not all, of these motions were strategically filed as a sort of quasiresponse to defendants’ request for dismissal of the action as a sanction. In other words, through these miscellaneous motions, plaintiff attempted to accuse defendants and defense counsel of unclean hands presumably in order to convince the court that it should not dismiss the case based on plaintiff’s alleged misdeeds.

6. Imposing a punitive (as opposed to compensatory) monetary sanction, like a dismissal with prejudice, is a severe sanction that requires clear and convincing evidence. Larson, 2005 WL 4652509, at *9; see also Ty Inc. v. Softbelly’s, Inc., 517 F.3d 494, 498 (7th Cir. 2008)(distinguishing a punitive monetary sanction from one that is merely compensatory).

7. The court recognizes that the Seventh Circuit has called into doubt its own precedent in this area. See Ridge Chrysler Jeep, LLC v. DaimlerChrysler Fin. Servs. Ams. LLC, 516 F.3d 623, 625-26 (7th Cir. 2008) (“Neither a statute nor the Constitution requires an elevated burden for dismissal as a sanction, when the burden in the underlying suit is the preponderance of the evidence. But we need not decide today whether the time has come to overrule Maynard, as the district court’s findings suffice on any standard.”); Wade v. Soo Line R.R. Corp., 500 F.3d 559, 564 (7th Cir. 2007) (expressing “doubt” that the “clear and convincing” standard set forth in Maynard is required for dismissal, but noting that the issue was not presented to the Court); see also Watkins v. Nielsen, 405 F. App’x 42, 44 (7th Cir. 2010) (“We have not resolved definitively whether a finding of willfulness must be premised on clear and convincing evidence or simply a preponderance.”).

8. Some of the disciplinary files were tendered to plaintiff before entry of the amended protective order based on an agreement between counsel that they would “abide by the contents of the agreed order before it was actually entered.” Tr. at 172. At the hearing, plaintiff’s attorney conceded that he “received the documents pursuant to a protective order.” Id. Accordingly, the court will assume that all of the disciplinary files at issue in this case were covered by the amended protective order, regardless of the date on which those documents were tendered.

9. At various times throughout these proceedings, plaintiff has suggested that the documents posted on the Internet could have come from one of the defendants or someone else at the MCSO. See, e.g., Tr. at 34; Doc. 249 ¶¶ 3-5. The court rejects this argument, as there has never been anything presented other than speculation to support this claim.

10. As the court noted at the beginning of the evidentiary hearing, there were four places on one of the documents posted on the blog where a name – later determined to be Les Lundsman – was inserted in place of, or typed over, a redacted portion of the document. Tr. at 29-30; see also Defs.’ Ex. 9 at 23-24, 27. This alteration was not in the original discovery production. Tr. at 174.  Nevertheless, it is clear that this document came from the discovery production and that these redactions were subsequently altered for some reason.

11. Based on the argument in their first motion for sanctions, it appears that, at least at that time, defendants did not believe that plaintiff or his counsel had directly posted the documents on the Internet.

12. The mistake by plaintiff’s counsel was especially confusing because the web address he listed,  http://mcsdexposed.blogspot.com, was actually the correct web address for Zane Seipler’s Blog.  There has never been any dispute that plaintiff owned and maintained Zane Seipler’s Blog as his personal blog. Thus, on its face, Horwitz’s affidavit appeared to be either false or misleading. He later admitted at the hearing, however, that this was just a mistake and that he intended to reference the blog at issue in defendants’ motion for sanctions. See Tr. at 789.

13. Plaintiff explained that the e-mail address, SKNout4good@gmail.com, was created as part of his political campaign against Sheriff Nygren and meant “Sheriff Keith Nygren Out 4 Good.” Tr. at 1817.

14. Defendants’ second motion for sanctions initially relied only on the evidence from Google regarding The Real MCSO Exposed blog and the SKNout4good@gmail.com e-mail address. See Doc. 266 at Exs. B, D. The remainder of the computer evidence was subsequently provided in defendants’ reply brief and in a supplemental submission. See Docs. 288, 314.

15. Defendants also urged the court to refer this matter to the United States Attorney’s Office for a criminal perjury investigation. Doc. 266 at 9. After consideration, the court declines to do so.

16. It is worth noting that, during this exchange, Horwitz did not mention or rely on his own previous affidavit.

17. In their post-hearing brief, defendants appear to argue that they have met their burden of proof with respect to the alleged violation of the protective order, and therefore, that the burden of proof has “shifted to Plaintiff to prove his affirmative defense.” The court disagrees. “An affirmative defense is defined as a [respondent’s] assertion raising new facts and arguments that, if true, will defeat the [movant’s] claim, even if all allegations in the complaint are true.” Cottle v. Falcon Holdings Mgmt., LLC, No. 2:11-CV-95-PRC, 2012 WL 266968, at *2 n.4 (N.D. Ind. Jan. 30, 2012) (alterations and quotation marks omitted). In this case, plaintiff is not raising an affirmative defense, but rather is offering a different version of events that, if believed, negates the allegations in defendants’ motion. Thus, the burden of proof remains with defendants to prove a violation of the protective order or other sanctionable conduct.

18. Rosalinda first spoke with attorney John Nelson, who had previously represented her on an issue arising out of this case relating to her assertion of the Fifth Amendment privilege against selfincrimination at her deposition. Tr. at 836. It is noteworthy, however, that Rosalinda did not meet with Nelson until October 26, 2011, which was approximately one week after the Magistrate Judge had referred the matter to this court for consideration of the sanction of dismissal. Tr. at 845, 1497; see also Doc. 316. At the hearing, Rosalinda was represented by attorney Dennis Giovannini. Tr. at 834, 1399, 1498.

19. Dismissal under Rule 37(b) would also be appropriate if there was evidence that plaintiff was at “fault” for the violation of the protective order. See Maynard, 332 F.3d at 468. Fault is conceptually different than willfulness or bad faith, and it “only describes the reasonableness of the conduct-or lack thereof-which eventually culminated in the violation.” Marrocco, 966 F.2d at 224.  Because the court has already found that plaintiff willfully or in bad faith violated the protective order, the court need not consider whether he could also be sanctioned based on fault.

20. Plaintiff testified that he had printed out “more than a hundred” of the discovery documents to “use them as exhibits and make highlights for . . . depositions,” and that these documents were kept in “a big box of lawsuit stuff” that he would leave close to his computer. Tr. at 281, 284. However, plaintiff did not provide the court with any more precision on this topic or demonstrate how or why the documents that were posted to the blog were the same documents that he had printed in preparation for various depositions.

21. Plaintiff made several posts to Zane Seipler’s Blog during June and July 2011, at the time he allegedly did not know that The Real MCSO Exposed blog had been created under his blogger account. See Defs.’ Ex. 32 at 568-613.

22. “Attorneys’ actions are imputed to their clients, even when those actions cause substantial harm. A litigant bears the risk of errors made by his chosen agent.” Wade, 500 F.3d at 564. Therefore, any arguments or statements made by counsel speaking on behalf of plaintiff will be treated as if they were made directly by plaintiff.

23. As Rosalinda’s counsel explained at the hearing, the confidentiality order did not apply to Rosalinda, a non-party to this litigation. Tr. at 1411. Therefore, there would have been no legal risk to Rosalinda if Horwitz had advised his client to come forward with any information he had concerning her involvement with the blogs.

A bit more than a month ago Rockford Federal Judge Frederick Kapala gave McHenry County Sheriff Keith Nygren’s attorney James Sotos and re-instated Deputy Sheriff Zane Seipler (who had the audacity to challenge Nygren in the GOP primary after being fired) a month to file 20 pages apiece.

The documents were to tell why Sotos thought Seipler’s case should be tossed and why Seipler attorney Blake Horwitz thought Sotos’ motion for contempt of court should be dismissed.

Since Seipler’s brief is shorter, I’ll run it first, a couple of the 15 pages each. Then, I’ll get to the Sotos brief.

PLAINTIFF’S MEMORANDUM OF LAW IN SUPPORT OF DENYING DEFENDANTS’ SANCTIONS MOTION

Now comes the Plaintiff by and through his counsel, Blake Horwitz and Dan Dorfman, and hereby responds to Defendants’ Motion for sanctions.

INTRODUCTION

Even after lengthy and exhaustive evidentiary hearings, Defendants’ motion remains grounded largely in conclusory allegations, innuendo, and speculation, but little substantive evidence. As the evidence shows, Defendants have simply not met their burden and their motion should be dismissed.

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Part 2 tomorrow

LEGAL STANDARD

Dismissing a case as a sanction is a “draconian” measure that “must be infrequently resorted to by district courts.” Rather, “the interests of justice are best served by resolving cases on their merits . . . .” Long v. Steepro, 213 F.3d 983, 986 (7th Cir. 2000) (internal citations omitted). Thus, “clear and convincing” is indisputably governing law in the Seventh Circuit:

[C]onsidering the severe and punitive nature of dismissal as a discovery sanction,
a court must have clear and convincing evidence of willfulness, bad faith or fault before dismissing a case. . . . In all circumstances, to justify dismissal as a sanction, there must be clear and convincing evidence.

Maynard v. Nygren, 332 F.3d 462, 468 and fn. 3 (7th Cir. 2003); Prima Tek II, L.L.C. v. Klerk’s Plastic Indus., 525 F.3d 533, 542 (7th Cir. 2008) (requiring “clear and convincing” evidence to hold party in civil contempt for violation of court order). [FN1] Defendants will likely contend that, because several subsequent Seventh Circuit decisions have “questioned” Maynard, the lesser, preponderance-of-the-evidence standard governs. See Ridge Chrysler Jeep, LLC v. DaimlerChrysler Fin. Serv. Americas LLC, 516 F.3d 623, 625-26 (7th Cir. 2008); Wade v. Soo Line R.R. Corp., 500 F.3d 559, 564 (7th Cir. 2007). This argument is unavailing. Maynard has not been overruled and remains the governing standard in this circuit.

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FN1  See also FTC v. Asia Pac. Telecom, Inc., 788 F. Supp. 2d 779, 790 (N.D.Ill. 2011) (“Clear and convincing evidence has been the traditional standard required by the Seventh Circuit for ordering a default judgment as a discovery sanction”); Stewart v. Illinois, 2003 U.S. Dist. LEXIS 14076 (N.D.Ill. Aug. 11, 2003) (holding that dismissal of a case as discovery sanction requires clear and convincing evidence); REP MCR Realty, L.L.C. v. Lynch, 363 F. Supp. 2d 984, 999 (N.D.Ill. 2005) (same).

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Accordingly, this Court must apply the clear-and-convincing standard to Defendants’ motion to dismiss. See JFB Hart Coatings, Inc. v. Am. General, LLC, 764 F.Supp. 2d 974, 981 (N.D.Ill. 2011). It is black-letter law that district courts must apply the law as expressly stated by the Circuit Court in their jurisdiction and not rule based on speculation as to how the Court might rule in the future. See Hastert v. Illinois State Bd. of Election Comm’rs, 1994 U.S. App. LEXIS 13101 (7th Cir. June 1, 1994) (“When a district court overlooks . . . relevant, binding precedent, its decision cannot stand”). Specifically, a district court does not have the authority to decide that governing precedent has been overturned or altered “by implication” in subsequent appellate decisions. See Levine v. Heffernan, 864 F.2d 457, 461 (7th Cir. 1988). As the great Judge Learned Hand explained:

[W]e have not been oversuccessful in attempting ‘to embrace the exhilarating opportunity of anticipating a doctrine which may be in the womb of time, but whose birth is distant.’ and I think it would be the part of wisdom to desist here….
Quoted in Sommerfield v. City of Chicago, 252 F.R.D. 407, 415, fn. 5 (N.D. Ill. 2008) (holding that the cases like Soo Line that question the clear-and-convincing standard have no precedential value).

Accordingly, Defendants must prove by clear and convincing evidence that this action may be dismissed as a discovery sanction for Plaintiff’s purported misdeeds. However, the palpable paucity of proof presented by Defendants in support of their motion requires denial of the motion whichever standard of proof this Court applies.

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Part 3 tomorrow.

ARGUMENT

A. The transcript of September 23, 2011 hearing before Judge Mahoney. Utilizing speculation and unsupported conjecture, Defendants argue that Plaintiff’s counsel deliberately misled the Court.

Blake Horwitz

The passage at issue is a colloquy between Judge Mahoney and Mr. Horwitz in a hearing on September 23, 2011. [FN2] Defendants presume to know what Mr. Horwitz meant by his answer to Judge Mahoney’s question: Under the provocative heading “[II.](C) Perjury, Misdirection and Deception” in their second supplemental motion to dismiss, Defendants assert that in that hearing:

Plaintiff’s counsel deceptively stated, in an attempt to mislead and deceive the court, that he “[did not] have an answer” to the Magistrate Judge’s question as to how the owner of the offending blog obtained the confidential what Mr. Horwitz meant by his answer to Judge Mahoney’s question: Under the provocative heading “[II.](C) Perjury, Misdirection and Deception” in their second supplemental motion to dismiss, Defendants assert that in that hearing:

Plaintiff’s counsel deceptively stated, in an attempt to mislead and deceive the court, that he “[did not] have an answer” to the Magistrate Judge’s question as to how the owner of the offending blog obtained the confidential document.)

= = = = =

FM2 Mr. Horwitz: So moving on, Google’s response is – with regards to MCSO [E]xposed, that’s what Google’s response is. My client created that website a couple years ago. Not [R]eal MCSO [E]xposed. There’s a lot of websites out there that have many different names – I’m sorry. There’s a lot of websites that have – at least from what I understand. They’ve got lots of bloggers out there. A lot of people are very critical of the department and all that, and they’re saying lots of different things, and they have similar names to them. That’s just what I remember.

The Court: How would they get the documents?

Mr. Horwitz: I’m not saying they got these documents. I am just simply saying to you that – - -

The Court: Didn’t the documents show up on the websites?

Mr. Horwitz: Yes.

The Court: Well, then how would somebody that just made up their on blog have these documents to begin
with to put them there?

Mr. Horwitz: I don’t have an answer to that question. What I can say to you is how is it that the deposition transcript of Scott Milliman got to the paper? How is it that – which I understand was confidential before it was tendered to the newspaper. How is it that the confidential police report concerning my client and his wife was given to multiple police officers. How is it that things happen. I’m just giving you a rhetorical answer to the question.

= = = = =

Part 4 tomorrow.

Contrary to Defendants’ spin, Mr. Horwitz made clear to Magistrate Judge Mahoney what he meant: At the time the disputed documents were posted on the suspect blogs, Mr. Horwitz did not know how third parties could get “the documents . . . to put them up [on the Internet]” and thus could not provide a definitive answer to the question. There were a number of reasons for this conclusion:

James Sotos

In his testimony, Mr. Sotos acknowledges that, with regard to Judge Mahoney’s use of the plural (“websites”), two websites were at issue — the Real MCSO and Shadow blogs. Mr. Sotos agreed that it was not unreasonable, let alone misleading or deceptive, to believe that the disputed confidential documents were uploaded to blogs by third parties. (Transcript of Sotos Testimony (“Sotos TR.”) at 1222.)

Most significantly, Mr. Sotos admits that he could not be sure how the disputed documents got onto the blogs at issue, which is precisely how Mr. Horwitz responded to Judge Mahoney’s question. Mr. Sotos agrees that an unhappy sworn member of the MCSO, Deputy Milliman, gave confidential materials to Mrs. Seipler that had been produced by the Defendants to the Plaintiff. (Id. at 1230, 1232-1234.) Mr. Sotos further agrees that Sgt. Pyle, with his highly developed computer skills, knew how to hack into computers and he could believe that Sgt. Pyle had done so. (Id. at 1018. [FB3]) Mr. Sotos also grants that documents can be uploaded onto a website by a third party, with the website-owner’s permission, but states that he did not know whether such permission had been granted by the owner of the Shadow website. (Id. at 1232.)

= = = = =

FN3 18 Q. If I told you that Sergeant Pyle has actually told members of the department that he goes into computers, hacks into them, and can upload information onto the Internet, would that surprise you?

A. Not really, no. After what I’ve heard about Sergeant Pyle, I guess you could say nothing would surprise me. (Sotos Tr. at 1018)

= = = = =

Part 5 tomorrow.

Conceding that Judge Mahoney referred to “websites” in the plural, Mr. Sotos nevertheless maintains that the Judge was referring only to one website, Real MCSO, because that was the subject of Defendants’ motion. (Id. at 1224, 1227, 1231, referring to Defendants’ Exh 23 at 13:17-19.) Mr. Sotos admits that this is just his interpretation of Judge Mahoney’s reference to “websites” in the plural. (Id. at 1225.) Yet, Mr. Sotos still maintains that Mr. Horwitz “tried to misdirect the court . . .” (Id. at 1225.) Mr. Sotos is confident that Judge Mahoney had in mind only the Real MCSO, despite no support in the hearing transcript.

Nonetheless, for some reason, Mr. Sotos argues that one would have to ask Judge Mahoney directly whether the Judge was referring to any other website, in particular the Shadow website, where some of the disputed documents appeared. (Id.at 1225-1226, 1238:-1239.)

Defendants insist that Judge Mahoney’s question was crystal clear and thus, because Mr. Horwitz must have known what the unambiguous question referred to, his response was patently deceptive. (Id. at 1238.) Astonishingly, Defense counsel, Ms. Ekl, objects to Mr. Horwitz posing Judge Mahoney’s own question to Mr. Sotos. Ms. Ekl contends that the question is “vague.” (Id. at 1236-1237.) Explaining the reasons for her objection, Ms. Ekl makes a statement that would be comical, if its implications were not so serious: “Judge, again, I object to the vagueness of this question. We’ve been talking about multiple documents from multiple productions, multiple sources, and multiple websites.” (Id. at 1237). But these are exactly the reasons that Mr. Horwitz gives for his answer to Judge Mahoney’s question, reasons that Defendants have insisted for months and months proved Mr. Horwitz’s answer was a deliberate attempt to mislead and deceive the Court:

There’s a lot of websites that have – at least from what I understand. They’ve got lots of bloggers out there. A lot of people are very critical of the department and all that, and they’re saying lots of different things, and they have similar names to them. That’s just what I remember. (Defs. Exh. 23 at 13:8-13.)

= = = = =

Part 6 tomorrow.

Defendants will likely argue that Plaintiff’s counsel was aware that Ms. Seipler indicated she had knowledge of how the information was uploaded onto the websites. However, undermining his own position, Sotos acknowledges that the August, 2011 conversation, in which Mr. Horwitz could have learned of this information, implicated the spousal privilege.[FN4 ]At no time did Ms. Seipler state that she told Mr. Horwitz that she uploaded the documents. Although Mr. Horwitz and the Plaintiff did have a heated conversation about who uploaded the confidential documents onto the Internet, Ms. Seipler never advised Mr. Horwitz that she had done so. Indeed, she specifically stated that she desired to speak to a lawyer and would not tell Mr. Horwitz what happened. [FN5] (Id. at 1494-1495).

= = = = =

FN4 Q. Okay. So, you accept that a privileged conversation could 21 have taken place in August 2011, correct? Where an issue concerning spousal privileges could have arisen; is that correct?

A. Sure. (Sotos Tr. at 983.)

FN5 In September, 2011, Mrs. Seipler contacted John Nelson, her attorney at that time. (Rosalinda Seipler Testimony, Transcript at 1496.) Later she secured the services of Dennis Giovanni. (Id.) Mr. Horwitz asked Mr. Nelson if Mrs. Seipler posted the materials and Mr. Nelson advised that he would not disclose that matter to Mr. Horwitz.

Ultimately, Mr. Horwitz learned from Dennis Giovanni that Mrs. Seipler posted the materials. (Horwitz, Tr., 808-809).

Furthermore, Mr. Nelson agrees that it would have been unethical for Mr. Horwitz to invade her relationship with Mr. Nelson, subject to review by the ARDC. (Nelson TR. at 843-844, 849-851). Moreover, obvious conflicts prevented Mr. Horwitz from inquiring further; even if Mrs. Seipler did not ask for a lawyer, Mr. Horwitz was obligated to advise her that she should secure the services of a lawyer, as Mr. Nelson testified. (Id. at 862-863).

= = = = =

Mr. Horwitz properly answered Judge Mahoney’s question and was not deceitful. Thus, Defendants’ accusation that Plaintiff and his counsel sought to mislead the Court on September 23, 2011 rings hollow and is contradicted by the evidence. The motion should be denied.

= = = = =

Part 7 tomorrow.

B. The Plaintiff did not upload the documents onto the web or pressure his wife to do so. Mrs. Seipler uploaded the documents out of anger, fear and concern for her family.

Defendants claim that either Plaintiff posted the disputed documents on the Internet or his wife did so at his direction. The evidence does not support these contentions. It is undisputed that Rosalinda Seipler (“Rosa” or “Mrs. Seipler) created two blogs in May-June 2011 and posted some confidential personnel documents on these blogs. Mrs. Seipler testified that: For three years, she felt angry, worried, and helpless in the face of MCSO’s harsh treatment of husband, which was destroying her family financially and emotionally. (Rosalinda Seipler Testimony, Transcript (“R. Seipler TR.”) at 1467-1468). Mrs. Seipler selected the offending documents from a box that was organized for the depositions that were taking place (Z. Seipler, Tr. 343, 468-471) (R. Seipler, Tr., 1383).

MCSO was “targeting” her husband for reporting racial profiling in the department, while doing nothing about the profiling that Zane reported. (Id. at 1442, 1445.) After all, the department removed Zane from the SWAT team, no longer employed him as a Field Training Officer or a First Aid Trainer and ultimately placed him on administrative leave. It seemed that the department was more determined to demote Zane that to investigate Zane’s allegations of racial profiling. (Id. at 1443-1446. ) Indeed, at the time Mrs. Seipler put the disputed documents up onto the web, the MCSO had still not reinstated Zane too the department, even though he had won his job back three times.

Rosa became aware that an internal investigation of 51 deputies, led by Mr. Sotos’ law firm, determined that only seventeen of the officers had deliberately misidentified the race of drivers they ticketed. (Id. at 1448-1449). Rosa was concerned that Mr. Sotos was purportedly investigating the same officers and department that he represented as an attorney. (Id. at 1446-7.)

The department did not impose any disciplinary action on any of the seventeen officers, including Jeremy Bruketta, who had misidentified the race of drivers on hundreds of tickets in one year. (Id. at 1451). In disturbing contrast, Defendant Sheriff Nygren sought to arrest Zane for filling out two tickets incorrectly. (Id. at 1455.)

= = = = =

Part 9 tomorrow.

Mrs. Seipler felt like “we didn’t have a chance” and “we were battling something.” She was “very pissed… [and] afraid.” (Id. at 1447.) Rosa believed that the truth about the MCSO was not going to come out. (Id. at 1447, 1456). Mrs. Seipler put the information up on the web because she had become “paranoid,” fearing that something was going to happen to Zane, her, or her children. Deputy Milliman’s brother, Kurt, was murdered only six months after the Deputy was deposed, and Rosa believed that Kurt Milliman’s death was payback to stop Deputy Scott Milliman from speaking out. (Id. at 1457, 1467, 1557). At the time, Mrs. Seipler had three children under the age of six. (Id. at 1334-1335.) In addition, at that time and for several months prior Mrs. Seipler had been barricading the doors to her house (Id. at 1491-1492). Guns were strategically placed in the house to defend the family and the shades were drawn so that the children could not be seen from the outside. (Id.) Rosa was also afraid that the Sotos law firm, with its unlimited resources, was going to “come after her” and she would lose her job. (Id. at 1501.) Rosa believed that publishing the information on the internet might make her family safer. (Id. at 1467-1468).

Mrs. Seipler was aware that the Milliman deposition transcript had gotten to the Northwest Herald and to an associate of Sheriff Nygren, Jose Rivera, who, as she understood it, was involved in shady dealings with the department. (Id. at 1459-1460). Moreover, in January, 2010, after the domestic violence report was made public, Mrs. Seipler spoke to a sergeant of the Woodstock Police Department, who initiated an internal investigation to find out how the materials became public. The sergeant told her that only the Sotos law had received the documents, in response to a subpoena; other requests by various newspapers were denied. (Id. at 1511-1515). Ultimately, Rosa received a letter from the Woodstock Chief of Police confirming these details. (Id.)

Mrs. Seipler removed the confidential designation from the documents when she scanned them into the computer. After all, the domestic violence report had been distributed with the confidential designation and therefore Rosa understood this to be the proper procedure. She believed that the documents that she uploaded to the blogs were not confidential, since Judge Mahoney ruled that the domestic report and the Milliman deposition transcript were not confidential. (Id. at 1504-1509).

When Mrs. Seipler created the first blog, there was no need to log in or create a website; the computer was turned on and so she went in straight to Google. When creating the second blog, the computer was turned off, so she turned it on and had to log in. (Id. at 1465-1467). This presented no problem. Zane and Rosa shared the same password on the computer. They agreed, after Zane’s had a relationship with another woman, that there would be no secrets between them. For this reason, Zane could not create a password that would limit Rosa’s access to the computer. (Id. at 1485).

= = = = =

Part 9 tomorrow.

Nevertheless, Rosa did not tell Zane — or anyone else — that she posted the disputed materials. Mrs. Seipler had previously posted comments on a number of media websites, such as the Daily Herald, the Northwest Herald, and the Woodstock Advocate. Zane had told Rosa that he did not want her to post information on the web and they had often argued about this. (Id. at 1473). When Mrs. Seipler started posting in 2009, Zane objected, concerned that the material she posted could harm his campaign for Sheriff. (Id. at 1479-1481). Mrs. Seipler continued to post comments in late 2009-2010 but without posting her name, in order to avoid arguments about this with her husband. (Id. at 1483-1484). Rosa did not tell Zane that she posted the materials to the Real MCSO website or the Shadow Website until August, 2011 because she did not want to create “problems” between her and her husband. (Id. at 1488-1490).

When Mrs. Seipler overheard Zane telling his attorney in a telephone conversation that he had not posted the materials on the web, she felt compelled to tell her husband that it was she [w]ho had done so. She posted the documents, Rosa told Zane, because she feared that he was going to be criminally prosecuted and was in “big trouble” (Id. at 1494). That same evening, Mrs. Seipler and Mr. Horwitz spoke on the phone and Mr. Horwitz asked her if she knew who had posted the materials on the Real MCSO and Shadow websites. When Mrs. Seipler told Mr. Horwitz that she was not going to tell him. Mr. Horwitz posed certain hypotheticals to Mrs. Seipler and then advised her to consult with her own lawyer. (Id. at 1494-1495.)

In September, 2011, Mrs. Seipler contacted Mr. John Nelson, who was her attorney at that time. (Id. at 1497-1498). After she and Mr. Nelson spoke in October, 2011, she chose Mr. Dennis Giovanni to represent; she had come to the conclusion that Mr. Giovanni would be more zealous in her defense. She secured the services of another attorney who she felt was better suited, based on his level of interest in defense of Ms. Seipler, Dennis Giovanni. (Id. at 1497-1498). Mrs. Seipler engaged an attorney because she was not sure whether she would be criminally prosecuted and at that time, she was the family’s sole breadwinner. (Id. at 1499).

The evidence does not support Defendants’ contention that the Plaintiff posted the disputed materials onto the web or that he induced his wife to do so. The motion should be denied.

= = = = =

Part 10 tomorrow.

C. Defendants’ version of events makes little sense.

Defendants’ position is riddled with illogic. The Sotos law firm acknowledges that they were monitoring the Plaintiff’s MCSD Exposed website on a daily basis and Plaintiff knew this by means of a program called Site Meter (Z. Seipler, Tr. 398), which disclosed Sotos’ IP address and law firm’s daily observations of Mr. Seipler’s website. Consequently, Mr. Seipler was aware that the Sotos firm was aggressively monitoring a website that was generated from Plaintiff’s home computer and he could identify the firm’s IP address as well. Plaintiff was also aware that the Defendants had available the services of a computer forensic expert, then-Sergeant Pyle, who made no secret of his hatred for Mr. Seipler.7 (Seipler TR. at 340.) Zane knew that, as a computer forensic expert (Z. Seipler, Tr., 340, 554), Pyle knew how to access Mr. Seipler’s computer and track his internet uploads and IP address. Lastly, Mr. Seipler profoundly knew that Sheriff Nygren would use any and all means to attack and damage Mr. Seipler. After all, the Sheriff had Zane’s job away, criminally prosecuted him, threatened Zane by telling him to be sure that he has “good life insurance,” (Z. Seipler, Tr. 595) falsifying racial profiling studies, and appealing Zane’s termination at every possible level, from arbitration to the Illinois Supreme Court. [sic]

= = = = =

FN6 Mr. Sotos admits that he did not suspect Mr. Horwitz of wrong doing but asserted that Mr. Horwitz engaged in wrong doing (Sotos Tr., 1041).

FN7 Pyle maintained a website called the AntiWoodstock Advocate, where he widely disseminated his displeasure with Mr. Seipler with a repeatedly-posted obscene message directed at the Plaintiff, which read “Fuck You, Fuck You, Fuck You.” (Seipler TR. at 467, 622.)

= = = = =

Moreover, the Google subpoenas were sent to Plaintiff’s counsel on June 15, July 6, and August 1, 2011. (Sotos TR. at 1280, 1278, 1285, 1289-1290.) Plaintiff also knew that Defendants were seeking sanctions for his alleged posting of confidential material onto the web. However, the Shadow website, which contained the confidential documents (Sotos, Tr., 966) continued until approximately August 15, 2011 [FN8].

= = = = =

FN8 The last known date for the shutdown of the Shadow website is August 15, 2011. [Def. Ex. 31, Defs. Supp. R26 Disc. 006246]. The last publication to the website was August 8, 2011, Id. at 6245.

= = = = =

Defendants maintain that Plaintiff continued for two months to post confidential materials from his home computer to the web, either alone or in collusion with his wife – precisely the activity for which Defendants were seeking sanctions. This simply makes no sense.

Defendants’ construction of circumstantial evidence does not support their contention that the Plaintiff or the Plaintiff together with his wife posted the disputed materials on the Real MCSO Exposed or the Shadow websites. Clearly, as Defendants argue, if the Plaintiff got “caught”[FN9] he would not continue to post documents for two months after the June motion for sanctions. On the contrary, the evidence reveals Defendants’ version of events to be illogical.
The motion should be denied.

= = = = =

FN9 Sotos believed that Zane just got caught (Sotos, Tr. 1039).

= = = = =

D. Plaintiff and his counsel hid no information.

In the September 14, 2011 deposition of Mr. Seipler, Mr. Horwitz specifically asked Mr. Seipler clear, direct questions as to whether he uploaded the information onto the offending website. Mr. Sotos admits that the answers were clear. (Sotos TR. at 969.) Even though Defendants seeks sanctions regarding this deposition (Dkt No. 384, pg. 8, allegations 14-15), it is clear that Plaintiff was deliberate and straightforward in his answers.

E. Mr. Horwitz properly asserted a privilege in the September 14, 2011 deposition.

Defendants contend that Mr. Horwitz did not assert a valid privilege-objection in Mr. Seipler’s deposition, but was merely engaging in misdirection. (Dkt No. 384, pg. 8, allegations 14-15). Oddly though, Mr. Sotos admits that the spousal privilege was available [FN10]. John Nelson,Mrs. Seipler’s attorney, testified that if Mr. Horwitz violated the privilege, he could have been subject to discipline (Nelson TR. at 865.) Although Mr. Sotos asserts in writing that the privilege was vaguely asserted (Dkt No. 384 Id.), he admits that the spousal privilege could have been the privilege which Mr. Horwitz was invoking. (Sotos TR. at 981-982). Regardless, Defense counsel could have filed a motion to determine the nature of the privilege that Mr. Horwitz asserted, after complying with Local Rule 37.2’s meet and confer requirement, but chose not to.

= = = = =

FN10 Q. Okay. So, you accept that a privileged conversation could have taken place in August 2011, correct? Where an issue concerning spousal privileges could have arisen; is that correct?

A. Sure.
(Sotos, Tr., 983)

= = = = =

F. Plaintiff’s counsel committed a simple error in citing to the websites in question.

Plaintiff’s counsel admitted that he erred regarding the names and URLs of the websites when drafting Plaintiff’s response to Defendants’ initial motion for sanctions. Mr. Sotos acknowledges that Mr. Horwitz could simply have made a mistake in connection with the drafting [FN11]. Despite these errors, the affidavit that Plaintiff and his counsel submitted in response to Defendants’ original (June, 2011) motion for sanctions established that neither Plaintiff nor his counsel posted the materials to the websites at issue or knew who had done so. Further, the Plaintiff came forward in his September, 2011 deposition and very candidly explained, in very short and clear questions posed by his counsel that he did not post the materials to the internet.   The testimony and documents in this matter establish that there were many websites being addressed in this cause, including a website name, The Real MCSD, realmcsoexposed.blogspot.com and mcsoexposed.blogspot.com (Dkt No. 266-2, filed August 11, 2011).

= = = = =

FN11 Q. And you sure wouldn’t want an attorney like me writing stuff up on motions and messing up the website addresses, right?

A. I think it’s better that that doesn’t happen

Q. Can you accept that that was just a mistake on my part?

A. I don’t know whether it was a mistake. That may have been a  mistake. I don’t know.
(Sotos, Tr. 1100)

= = = = =

Interestingly, Defendants forensic expert erred as well (Sotos, Tr., 1048-1049) with regard to when the various blogs were created and Mr. Sotos also erred, calling the offending Blog realmcsdexposed whereas the correct address is realmcsoexposed [FN12]. The clerical errors were multiple in nature, but they were merely errors.

= = = = =

FN12 Q. Okay. And so, with regards to the question in the plural that the federal judge asked me about, which websites in the plural, when he says in the plural, what was he talking about?

A. My interpretation of that, as I’ve said, is that he was talking about the Real MCSD Exposed website on which the documents were posted (Emphasis Added).

= = = = =

G. Plaintiff’s frustrations referenced in his website do not amount to evidence of publication of confidential matters.

It is apparent that at times, Zane discussed his frustration at information being kept private. He mentioned his difficulty with the Pavlin situation (Seipler, Tr., 324, 331, 413-416) and the court’s resistance to make information regarding that situation public and how that approach will allow the department to maintain corruption. But Zane did not disclose confidential information. Later, he arrived at an idea to see which individuals would tender their e-mail address to him in order to secure information he could provide them (legally) regarding the Pavlins. (Z. Seipler, 413-416). However, nothing became of this approach.

CONCLUSION

For all the reasons stated above, Defendants’ motion fails to meet the clear-and-convincing evidentiary standard required of a motion to dismiss proffered as a discovery sanction. The motion should be denied.

December 5, 2012

/s/ Dan Dorfman
The Blake Horwitz Law Firm, Ltd.
39 S. LaSalle, Suite 1515
Chicago, Illinois 60603
Telephone: (312) 676-2100

Minute orders by Federal Judge Frederick Kapala, sitting in Rockford, announce a so-far undisclosed settlement of a case brought by 61-year old Peter Matwijiw against the McHenry County Sheriff’s Department.

Matwijiw was injured on July 3, 2009, by Deputy Robert Chamberlain and, then, arrested for resisting arrest and obstruction of justice.

On those charges, represented by a Public Defender, Matwijiw was found not guilty.

While the Sheriff’s Department sought dismissal of the case, Judge Kapala denied that request on May 4,2012.

On October 22nd, Judge Kapala entered the following order:

“MINUTE entry before Honorable P. Michael Mahoney: Settlement conference held on 10/22/2012.

“Counsel report cause settled as stated in open court.

“Court retains jurisdiction to enforce settlement.

“Parties to file stipulation to dismiss by 1/2/13.”

Then on October 23rd this order was entered:

“MINUTE entry before Honorable Frederick J. Kapala:”This case has been reported settled.

“The parties are directed to file a stipulation with the court by 1/2/2013, and to send a paper courtesy copy to the court.

“If the parties fail to file the stipulation and this court does not extend the period of time for filing the stipulation, the Clerks Office is directed to enter an order of dismissal with prejudice and judgment.

“Each party shall bear its own costs, unless otherwise provided in the settlement documents.

“Due to the settlement of this case, any pending motions are now moot and all court dates are canceled.

Asked to comment about the case, attorney Louis Meyer, who successfully represented the Pavlins in their illegal search case against the Sheriff’s Department, wrote,

“The settlement will be made public in December, of course after elections and a new county board.

“My client was Peter Matwijiw.

“He alleged excessive force against deputy Chamberlain and malicious prosecution.

“Peter was found not guilty of resisting and obstruction of justice.

“His face and shoulder were injured during the false arrest and excessive force.

“The incident resulted from a lack of communication between a 61 year old man that only has 30% hearing in one ear and overzealous deputy.

“After the misunderstanding was cleared up, instead of apologizing for the mistake, Deputy Chamberlain arrested Peter and brought false charges against him in an attempt to cover up his misconduct, i.e. the false arrest and excessive force.

“In this case justice prevailed and Peter was found not guilty and was able to bring a civil suit to recover damages he sustained.

“Thankfully, the public defender beat the bogus charges.

“The current Sheriff will not admit when his deputies screw up and that reinforces them to continue their conduct.

“I don’t think the Sheriff has ever said one of “his boys” did anything wrong and he will spend to no end to defend them.

“It has started to cost him and the taxpayers.

“He is from the old school days of cover up and favors for friends, hire unqualified deputies because who they know, etc!”

Below you can see Judge Kapala’s summary of the case in his May 4, 2012, decision not to dismiss it:

“In the complaint, plaintiff alleges the following facts, which are taken as true for purposes of the motion to dismiss.

“On July 3, 2009, plaintiff was at his home in Woodstock, Illinois.

“At approximately 1:00 p.m., Chamberlain arrived at plaintiff’s home in response to a 911 call and spoke to plaintiff, who was outside in front of his home.

“Plaintiff asked Chamberlain why he was there, and Chamberlain told plaintiff that he was there to investigate a 911 call.

“Plaintiff told Chamberlain that nobody had called 911 and that it must be a mistake.

“Although unknown to plaintiff at the time, plaintiff’s sister had accidentally dialed 911.

“Chamberlain told plaintiff that there had been a 911 call and that he needed to check the home.

“Plaintiff told Chamberlain that he would check the home, and then he turned from Chamberlain and began walking towards his home.

“At that point, Chamberlain grabbed plaintiff from behind and slammed him into a car.

“Chamberlain also knocked plaintiff to the ground and slammed a knee into plaintiff’s back.

“Chamberlain then handcuffed plaintiff and began to twist and pull on the handcuffs causing plaintiff extreme pain.

“Plaintiff was subsequently transported to the McHenry County Jail and charged with obstructing a police officer and resisting a peace officer.

“After a two-day trial, plaintiff was found not guilty on both counts.”

Louis J. Meyer represented Mr.Matwijiw.

The Sheriff was represented by the McHenry County State’s Attorney’s Office.

A press release from the U.S. Attorney’s Office:

HOME HEALTH CARE ADMINISTRATOR SENTENCED TO 20 MONTHS IN FEDERAL PRISON FOR HEALTH CARE FRAUD AND KICKBACK SCHEME

ROCKFORD — An Elmhurst, Ill., woman was sentenced today in federal court to 20 months in federal prison on her conviction for health care fraud and a kickback scheme. Merigrace Orillo, 45, co-owned and operated Chalice Home Healthcare Services, Inc., with her husband Virgilio Orillo. Chalice had offices in Chicago, Freeport, and Morris, Illinois.

Medicare is a national healthcare program which provides free or below-cost health care to eligible beneficiaries, primarily persons who are 65 years of age or older. Chalice was an enrolled provider with the Medicare program since 2004.

According to a written plea agreement, Chalice’s nurses, nurses aids, physical therapists, and occupational therapists provided services to patients in their homes. Chalice was usually paid for these services through the Medicare program.

Orillo admitted that from January 2007 through April 2010, she and her husband falsified documents in order to increase the payments Chalice received from Medicare.

The falsifications made Chalice’s patients appear to be sicker than they actually were and in need of greater care than they actually required.

Orillo also admitted that she knowingly assisted her husband in paying cash kickbacks to a Chicago doctor.

The kickbacks were paid in return for the doctor referring patients to Chalice for home healthcare services.

Orillo admitted that she withdrew cash from Chalice’s bank account and provided that cash to her husband to be used to pay these kickbacks. At the sentencing hearing, the court found that Orillo’s scheme caused a loss of more than $700,000 to the Medicare program.

The indictment, which was filed on February 15, 2011, charged both Orillo and her husband Virgilio with healthcare fraud.

The charges against Virgilio Orillo were dismissed after he died on August 30, 2011.

Today’s sentencing hearing was conducted by United States District Judge Frederick J. Kapala.

In addition to the 20 month federal prison sentence, Judge Kapala also ordered Orillo to pay $744,481 in restitution to the Medicare Trust Fund. Orillo will not be eligible for parole on her prison sentence.

The investigation was conducted by the Medicare Fraud Strike Force, which expanded to the Northern District of Illinois in 2011, and is part of the Health Care Fraud Prevention & Enforcement Action Team (HEAT), a joint initiative between the Justice Department and HHS to focus their efforts to prevent and deter fraud and enforce anti-fraud laws around the country.

The sentencing was announced by Gary S. Shapiro, Acting United States Attorney for the Northern District of Illinois; Robert D. Grant, Special Agent-in-Charge of the Chicago Office of Federal Bureau of Investigation; and Lamont Pugh, III, Special Agent-in-Charge of the U.S. Department of Health and Human Services, Office of Inspector General in Chicago.
The government was represented by Assistant U.S. Attorney Scott A. Verseman.

Meanwhile in an alternative universe, McHenry County Sheriff Keith Nygren told the Northwest Herald,

“Our officers did nothing wrong.

“Our people did the right thing, and I support them 100 percent.”

The headline above is excerpted from that part of Federal Judge Frederick Kapala’s decision which you can read below:

“B. Plaintiffs’ Motion for Partial Summary Judgment

“In their motion, plaintiffs request summary judgment on Count V of their complaint, claiming that defendants violated their Fourth Amendment rights by entering their house to arrest Carl and reentering and/or remaining in their house after Carl had been removed and placed in a squad car.

“Plaintiffs contend that no exigent circumstances existed to justify defendants’ warrantless entry into their house.

“In their response, Defendants claim that they did have probable cause to enter the home; that Carl was located in the threshold of the home, a public area; and that exigent circumstances existed because Carl attempted to shut the door and retreat into the house and because defendants needed to be sure the home was secure after the glass pane in the door was broken.

“Here, viewing the facts in the light most favorable to defendants, the court concludes that summary judgment is appropriate as to plaintiffs’ claim that defendants violated their Fourth Amendment rights by entering their house to arrest Carl.

“As in their motion for partial summary judgment, in their response to plaintiffs’ motion, defendants do not specify the exigent circumstances that warranted their entry into plaintiffs’ house, but seem to focus their argument on a claim that Carl was in the threshold of the house, a public place.

“As the court reasoned above, there is no evidence before the court to suggest that Carl was in the threshold of the home at the time of his arrest.

“Rather, the evidence before the court demonstrates that Carl was not in the threshold at the time of his arrest, as he opened the door only a few inches and did not stick his face in the door to see the officers.

“Further, defendants’ statement that Carl closed the door and “tried to escape into the house” is insufficient to establish that exigent circumstances existed to justify defendants’ entry into the house.

“While entry may be justified to prevent a suspect’s escape, an escape “into the house” is not an exigent circumstance.

“Rather, defendants would have to show that they had a concern that Carl would escape from, not into, the house, and would do so before defendants could obtain a search warrant for the house. United States v. Patino, 830 F.2d 1413, 1416 (7th Cir. 1987) (finding that exigent circumstances were not present where four police officers could have surrounded the suspect’s home to prevent a possible escape attempt while obtaining a telephonic warrant to search the suspect’s house); see also United States v. Green, 41 F.3d 1511, 1994 WL 622147, at *2 (7th Cir. 1994) (finding that exigent circumstances existed to prevent the escape of a suspect when officers learned that a person was hanging his foot, arms and head out of a second-floor window in an apparent escape attempt).

“Even viewing the facts in the light most favorable to defendants, defendants have not identified evidence to support their position that exigent circumstances existed to justify their otherwise unlawful entry into plaintiffs’ house.

“Plaintiffs’ motion for partial summary judgment is therefore granted.”

I quote the Fourth Amendment to the United States Constitution here.

You can read the entire decision here.

This is the third installment of how Zane Seipler’s attorney Blake Horwitz is defending against a motion for sanctions that, if granted, would end the wrongful termination suit that the now-reinstated Deputy has filed against McHenry County Sheriff Keith Nygren and others in the Department.

The subject moved from conflict of interest to spousal immunity.

Rose Seipler’s former attorney, John Nelson, is still on the stand.

Nelson won a motion previously in the case on that subject matter.

He there is “a certain immunity from disclosure.”

“It is an issue that attorney’s must tread very carefully with.”

“I represented Mrs. Seipler in a deposition. When did I stop [representing her]?” Horwitz asked.

“My memory was that you didn’t represent her in the deposition, just suggested to her she could assert her Fifth Amendment privilege.”

Nelson then explained that most clients think a lawyer who has previously represented them are their “attorney for life.

“You have to tell them when they may need other counsel.

“They don’t understand legal matt4ers.

“They trust you in matters of legal guidance.”

Horwitz pointed out that attorneys “also have to avoid the appearance of impropriety.”

“We have the responsibility to do the right thing,” Nelson said for the second time in the hearing.

“If I had called you, would you have told me what she (Rose Seipler) said?” Horwitz asked.

“No,” was Nelson’s immediate reply.

Horwitz asked when he and Nelson had met.

“Two or three court appearances ago” was the answer.

“Did she pay you?” Horwitz asked.

“She paid that day.”

“First time, too?”

“Yes. Retainer and paid a final bill.”

Horwitz then asked if there “came a time when Ms. Seipler told you about posting articles on the internet.”

An objection was made by Elizabeth Ekl, which Judge Frederick Kapala upheld.

At that point it was Nygren attorney James Sotos’ turn to question Nelson.

More tomorrow.

= = = = =
Articles explaining the dueling sanctions motions:

• Sheriff Seeks Sanctions for Privacy Violations, While Violating Privacy Order or “Do As I Say, Not As I Do”
• 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
• Point, Counter Point – Sotos, Horwitz Both Request Sanctions – Part 5
• Point, Counter Point – Sotos, Horwitz Both Request Sanctions – Part 6

Links to the articles containing the entire 10,000+ word transcript from December 15th, mainly about Sheriff Deputy Scott Milliman’s deposition, can be found at the links below:

• Part 1
• Part 2
• Part 3
• Part 4
• Part 5
• Part 6
• Part 7
• Part 8
• Part 9
• Part 10