McHenry County Blog

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.)

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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.

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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.)

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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)

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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.)

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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).

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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

Yes, I used the word “persecuted” in the headline, rather than “prosecuted.”

This case charges, accurately, I believe, that Bianchi and his staff members who were criminally charged were “victims of politically and financially motivated criminal investigations and prosecutions,” as the court documents charge, “…the product of a conspiracy, initiated by Bianchi’s political enemies, to remove Bianchi from office.”

Naturally, the language used in the case reflects most favorably upon the Bianchi side of the fight.

With the $157,500 settlement by Special Prosecutor Henry Tonigan in the suit brought by McHenry County State’s Attorney Lou Bianahi and his employees, it seems to me that the court filing by his attorney Terry Ekl deserves to be easily found.

I have the feeling that the document will be referenced more than once in the coming months.  That’s the nature of the beast.

In the terms of the media, this story “has legs.”

For that reason, I am going to post about ten pages a day of the 47-page filing.

Below are the first ten pages. I apologize in advance for the formatting problems.  I have added paragraphs to make it easier to read on your screen.  I have also added formatting to make it easier to read.  Where there were lists identified by letters, I have changed them to number because the program I use does not format in letters.

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS,
EASTERN DIVISION
LOUIS A. BIANCHI,
JOYCE A. SYNEK,
RONALD J. SALGADO, and
MICHAEL J. McCLEARY
Plaintiffs,
v.

No.: 12-cv-00364

Judge Elaine E. Bucklo
Magistrate Judge Nan R. Nolan

HENRY C. TONIGAN, III,
THOMAS K. MCQUEEN,
DANIEL JERGER,
ROBERT SCIGALSKI,
JAMES REILLY,
PATRICK HANRETTY,
RICHARD STILLING,
QUEST CONSULTANTS INTERNATIONAL, LIMITED, an Illinois Corporation,
KELLEHER & BUCKLEY, LLC, an Illinois Limited Liability Company, and<
UNKNOWN COCONSPIRATORS
Defendants.

FIRST AMENDED COMPLAINT

The Plaintiffs, Louis A. Bianchi, Joyce A. Synek, Ronald J. Salgado, and Michael J. McCleary, by and through their attorneys, Ekl, Williams, & Provenzale LLC, complain of the Defendants, Henry C. Tonigan, III, Thomas K. McQueen, Daniel Jerger, Robert Scigalski, James Reilly, Patrick Hanretty, Richard Stilling, Quest Consultants International, Limited, an Illinois
corporation, and Kelleher & Buckley, LLC, an Illinois limited liability company, as follows:

INTRODUCTION

This action is brought pursuant to the First, Fourth and Fourteenth Amendments to the United States Constitution and under Illinois State Law. Plaintiff Louis A. Bianchi, the State’s Attorney of McHenry County (hereinafter “Bianchi”), and three of his employees were the victims of politically and financially motivated criminal investigations and prosecutions orchestrated by Defendants Henry C. Tonigan, III and Thomas K. McQueen, in their roles as taxpayer funded special state’s attorneys in McHenry County, in concert with their co-Defendant private investigators, acting as special state’s attorney investigators.

The investigations and prosecutions were the product of a conspiracy, initiated by Bianchi’s political enemies, to remove Bianchi from office by fabricating false criminal charges and prosecuting Bianchi and his employees for criminal offenses, despite the lack of probable cause or credible evidence to support such charges.

To accomplish this goal, Defendants manufactured and fabricated

• false evidence,
• concealed exculpatory evidence,
• presented perjured testimony to a grand jury, and
• engaged in gross investigative and prosecutorial misconduct.

As a result, Defendants obtained two highly publicized criminal indictments against Bianchi and a criminal indictment against three of his employees, Plaintiffs Joyce Synek, Ronald Salgado, and Michael McCleary, all of which were wholly unsupported by probable cause or credible evidence.

The conspiracy crumbled when Bianchi resisted pressure to resign from office and instead proceeded to trial where he and Plaintiff Synek were acquitted of all charges by a directed finding, and where the charges against Plaintiffs Salgado and McCleary were dismissed by the trial court.

Despite Defendants’ failure to force Bianchi from office, Plaintiffs suffered significant severe and permanent damages based on the constitutional and state law violations that resulted from Plaintiffs’ unlawful arrests, indictments, and prosecutions.

JURISDICTION AND VENUE

1. This Court has original jurisdiction over this matter pursuant to 28 U.S.C. § 1331 and §1343(a)(3), as the federal claims are brought under 42 U.S.C. §1983. Venue is proper pursuant to 28 U.S.C. §1391(b), as all or some of the parties reside in the Northern District of Illinois and the events giving rise to the claims occurred in this district. The Court has supplemental jurisdiction over Plaintiffs’ state law claims pursuant to 28 U.S.C. §1367(a).

THE PARTIES

2. The Plaintiff, Louis A. Bianchi, is a resident of the Northern District of Illinois. At all times relevant, Bianchi has been the elected State’s Attorney of McHenry County. Bianchi brings this action in his capacity as a private citizen.

3. The Plaintiff, Joyce A. Synek, is a resident of the Northern District of Illinois. At all times relevant she was employed as an Executive Administrative Assistant to Bianchi.

4. The Plaintiffs, Ronald J. Salgado and Michael J. McCleary, are residents of the Northern District of Illinois. At all times relevant, they were employed as investigators for the McHenry County State’s Attorney’s Office (hereinafter “SAO”).

5. The Defendants, Henry C. Tonigan, III and Thomas K. McQueen are residents of the Northern District of Illinois.

At all relevant times they were attorneys, appointed as a taxpayer funded McHenry County special state’s attorney and an assistant to the special state’s attorney, respectively, and were acting under the color of law and with the same power and authority as a duly elected state’s attorney with respect to matters committed to their discretion.

This action is brought against Tonigan and McQueen in their individual capacities.

6. The Defendant, Kelleher & Buckley, LLC, at all relevant times was an Illinois limited liability company doing business as a law firm in the Northern District of Illinois. At all relevant times, Tonigan was employed as an attorney by Kelleher & Buckley and was acting within the scope of his employment and/or agency.

7. The Defendant, Quest Consultants International, Limited (hereinafter “Quest”), at all relevant times was an Illinois corporation doing business in the Northern District of Illinois. At all relevant times, Quest and its employees were retained by Tonigan and McQueen as taxpayer funded special investigators to the special state’s attorney. As such, Quest and its employees acted under the color of law and with the authority and power to exercise police powers and conduct criminal investigations.

8. The Defendants, Robert Scigalski, Daniel Jerger, James Reilly, Patrick Hanretty, and Richard Stilling, at all relevant times were employees of Quest, retained by Tongian and McQueen as taxpayer funded special investigators to the special state’s attorney, and appointed by the Circuit Court of McHenry County as agents and investigators of the special grand jury. As such, these Defendants acted under the color of law, with the authority and power of peace officers, and within the scope of their employment with Quest.

FACTS COMMON TO ALL COUNTS OF THE COMPLAINT
BACKGROUND OF THE CONSPIRACY TO REMOVE BIANCHI FROM OFFICE

9. In November of 2004, Plaintiff Bianchi was elected State’s Attorney of McHenry County after having previously defeated Glenn Gable in the March 2004 Republican primary.

10. Upon taking office on December 2, 2004, Bianchi promptly began reforming the SAO by inter alia:

(a) Eliminating the abuse of plea bargaining with politically connected defense attorneys;

(b) Increasing the amount of hours that all SAO employees were required to work each day;

(c) Refusing to give special deals to

• political operatives,
• contributors, and
• friends of the previous administration; and

(d) Terminating the employment of SAO employees who were unqualified or unwilling to competently perform their assignments.

11. As a result of these reforms, Bianchi frustrated political operatives in McHenry County who had obtained more favorable accommodations with the previous administration and other McHenry County departments.

12. In March of 2007, Bianchi announced his intention to run for re-election in the November 2008 State’s Attorney’s election.

13. Bianchi was opposed in the February 2008 Republican primary by Daniel Regna, a former assistant state’s attorney (ASA) under the previous administration, whom Bianchi had refused to hire.

14. The 2008 Republican primary campaign between Bianchi and Regna was highly contentious, and sharply divided supporters of Bianchi’s reforms and the political operatives who supported Regna in an effort to return the SAO to its prior mode of operation.

15. Bianchi won the February 2008 primary against Regna, prevailed again in the November general election, and in December of 2008, began his second term as State’s Attorney of McHenry County.

16. After failing in their efforts to legally remove Bianchi from office during the 2008 election, Bianchi’s political opponents initiated a politically motivated conspiracy to override the election and force Bianchi from office. The objective of this conspiracy was to

• arrest,
• indict, and
• publicly smear Bianchi,

thereby causing him to resign his office, irreparably tarnish his public reputation, and allow his political opponents to install a State’s Attorney who would do their bidding.

The Manipulation of Amy Dalby and
the Appointment of a Special Prosecutor by Bianchi’s Political Enemies

17. From June 2004 until she resigned in July of 2006, Amy Dalby was employed as a secretary in the SAO.

18. Prior to resigning, Dalby stole approximately 5000 documents from a SAO computer, including confidential and sensitive documents concerning pending investigations and prosecutions.

19. Dalby stole the documents from the SAO at the suggestion of Kristen Foley, an ASA whom Bianchi had demoted from her position as Chief of the Civil Division. In the summer of 2007, Foley began actively working on the political campaign of Bianchi’s 2008 primary opponent, Daniel Regna.

20. In October 2007, Dalby gave the stolen documents to Kristen Foley for use in Regna’s campaign. Foley then disclosed the stolen documents to the media.

21. In November of 2007, Bianchi learned of the theft and petitioned a court to appoint a special prosecutor, independent of the SAO, to investigate, and if necessary, prosecute the responsible individual.

22. In March of 2009, Dalby was arrested and charged with six felony offenses. On or about June 1, 2009, Ms. Dalby pled guilty to computer tampering.

23. In the meantime, on February 23, 2009, in the Circuit Court of McHenry County, Daniel Regna filed a politically motivated petition to appoint a special prosecutor to investigate Bianchi, alleging that Dalby performed political work while working in the SAO.

24. Likewise, on April 23, 2009, at the direction and/or with the assistance of Bianchi’s political enemies, Dalby herself filed a petition for appointment of a special prosecutor to investigate her allegation that she performed political work while working in the SAO from December of 2004 until July of 2006.

25. The three year statute of limitation on any allegations made in Amy Dalby’s petition expired no later than July 2009, three years after Dalby left the SAO.

Nonetheless, on September 4, 2009, McHenry County Circuit Court Judge Gordon Graham granted Dalby’s petition to appoint a special prosecutor.

26. Judge Graham also granted McHenry County’s Petition to Intervene and allowed the State’s Attorney’s Appellate Prosecutor’s Office to represent the interests of McHenry County in the matter.

27. On September 18, 2009, Judge Graham appointed Defendant Tonigan as a special state’s attorney and appointed Defendant McQueen to “assist” Tonigan.

28. Judge Graham’s order limited Defendants Tonigan and McQueen’s authority to investigating and/or prosecuting Dalby’s allegation that she performed political work at the SAO from December 2004 until July 2006.

29. The court file in the case appointing Defendants Tonigan and McQueen was later sealed and McHenry County, despite having an appearance on file, was not served with notice of a motion to seal the file and was not heard on the matter.

30. Furthermore, Defendants Tonigan and McQueen convinced Judge Graham, in an ex parte fashion, and without any input from McHenry County or its attorney, to compensate each of them at a rate of $250 an hour. This agreement violated 55 ILCS 5/3-9008, which, in order to avoid abuses of the public fisc, prohibits special state’s attorneys from exceeding the compensation of the elected state’s attorney, in a given year.

31. In October of 2009, Defendants Tonigan and McQueen interviewed Dalby and learned, by that time, at the very latest, that the statute of limitations barred any prosecution of Bianchi, or anyone else, for the allegations made by Dalby, even if true.

October-November 2009: Tonigan and McQueen Illegally Expand Their Investigation

32. Despite having a legal obligation to do so, Defendants Tonigan and McQueen did not terminate their investigation in October of 2009. Instead, Defendants Tonigan and McQueen unilaterally began an illegal taxpayer funded investigation into Bianchi and the SAO that grossly exceeded their limited legal authority. Defendants Tonigan and McQueen’s illegal investigation included misrepresenting themselves as special state’s attorneys and interviewing individuals regarding matters that far exceeded the scope of their limited appointment.

33. In order to continue the illegal investigation of Bianchi, fabricate a timely charge, an continue billing McHenry County exorbitant fees, in November of 2009, Defendants Tonigan and McQueen sought to expand their investigative authority. In order to conceal their conduct and prevent a challenge to the unwarranted expansion, Defendants Tonigan and McQueen decided not to properly petition the court, as required by Illinois law.

34. Instead, on November 18, 2009, Defendant Tonigan wrote Judge Graham an ex parte letter which, in violation of the Rules of Professional Conduct, was not sent to the County or its attorney, who had an appearance on file in the case. Tonigan’s letter was written on the letterhead of his employer, Defendant Kelleher & Buckley.

35. In the letter, Defendant Tonigan claimed that he and Defendant McQueen had already interviewed a number of witnesses and based on those interviews asked Judge Graham to “expand the order defining the role of our investigation.”

36. In order to expand his authority and persuade Judge Graham that Bianchi should be investigated for crimes that were not time-barred, Defendant Tonigan’s letter contained the following blatantly false statements regarding Bianchi:

1. Dalby stated that she trained her successor [Joyce Synek], to perform political work on County time;
2. There is a likelihood Synek provided secretarial services for Bianchi’s political interests on County time at least until September or October of 2007;
3. Witnesses provided information about possible illegal acts by Bianchi related to his misuse or theft of County funds; and
4. A witness indicated that Bianchi utilized County vehicles for his personal and political use.

37. Based upon those false representations, on January 7, 2010, Judge Graham signed an order, provided by Defendant Tonigan, granting Defendants Tonigan and McQueen the authority to investigate and prosecute Bianchi and “any and all persons” relative to any misappropriation or theft from “2005 and thereafter.”

December 2009-May 2010 Investigation: The Special Prosecutors and Quest Investigators Collaborate to Fabricate Evidence

38. Around December of 2009, the Defendant law firm of Kelleher & Buckley, acting through its agent Defendant Tonigan, retained an investigative firm, Defendant Quest, to investigate Bianchi.

A billing arrangement was determined and agreed to, on an ex parte basis, by Defendant Tonigan, Defendant Quest, and Judge Graham, without any participation by McHenry County, the entity that was ordered to pay Defendant Quest’s bills.

It was determined that each of Defendant Quest’s employees would be billed at an exorbitant rate for police investigators of $135 an hour, an hour.

39. After being appointed as special investigators, Quest employees, including, but not limited to, Defendants

• Jerger,
• Scigalski,
• Reilly,
• Hanretty, and
• Stilling

(hereinafter collectively referred to as “Quest Investigators”) participated, with Defendants Tonigan and/or McQueen, in a wide ranging politically and financially motivated investigation of Bianchi and the SAO.

40. Defendants Tonigan and/or McQueen, along with Defendant Quest investigators, and other as yet unnamed co-conspirators, met and agreed, through explicit and/or implicit means, to manufacture and fabricate evidence for the purpose of removing Bianchi from office by charging and prosecuting Bianchi and other SAO employees for criminal offenses, despite the lack of probable cause or credible evidence.

41. In furtherance of that agreement, Defendants Tonigan and/or McQueen interviewed individuals for the purpose of obtaining rumor and hearsay information to support their predetermined decision to prosecute Bianchi and remove him from office.

42. Defendants Tonigan and/or McQueen also directed the Defendant Quest Investigators to conduct certain interviews for the purpose of manufacturing and fabricating evidence.

43. The Defendant Quest Investigators represented themselves to witnesses as McHenry County Special Investigators who had been engaged by Defendant Tonigan to conduct an investigation into the official misconduct in the SAO.

44. After conducting interviews, the Defendant Quest Investigators informed Defendants Tonigan and/or McQueen of information related during the interviews.

More tomorrow.

In a fight to determine whether Deputy Sheriff Zane Seipler’s case will be dismissed because of the release of secret court documents by his wife on a blog, Seipler’s attorney Blake Horwitz and Sheriff Keith Nygren’s Attorney James Sotos faced off Wednesday.

Seipler was the only one to take the stand. He did so for about three hours.

It seemed to me that both sides were trying to tie up loose ends.

“If confidential information has been made public, I knew it wasn’t me,” Seipler again testified. “They are the ones who had the history of releasing confidential information.”

Sotos seemed to be laying groundwork for a “gotcha” moment, perhaps when Seipler’s wife Rose finally (after sitting outside missing work for three days) takes the stand. He did his best to create a timeline of when Seipler finally knew that the blog came from his computer.

He wanted to know how long the argument lasted after Seipler found out about his wife’s posting.

“All night. From 8 to 1 in the night.”

Later, Seipler said, “The argument is going on to this day.”

Horwitz took pains to show that his client knew nothing of the posting of Sheriff’s Department disciplinary documents that ended up on a blog that his wife wrote.

“I told her not to even comment on the internet,” he said.

But, he added, “She does what she does. She told me she wouldn’t. That’s why I believed she wouldn’t.”

Much was made of Seipler’s not having stepped forward to tell Magistrate Michael Mahoney of the lapse.

And much was made of a Woodstock Police Department domestic abuse report, secret according to state statute, that was posted all over the McHenry County Courthouse just before the 2010 primary election for Sheriff in which Seipler faced off against Nygren.

The report appeared after the Sotos law firm obtained it as part of defending Nygren in the wrongful termination case Seipler filed. Seipler testified that the Woodstock Police Chief said that the Sotos firm was the only entity that obtained the report.

The making public of the secret deposition of former Deputy Scott Milliman, fired by Nygren as was Seipler, took a lot of time.

And the list of alleged illegal activities of Sheriff Nygren was again presented to Judge Frederick Kapala.

This is the deposition that ended up being partially reported in the Northwest Herald, as was pointed out by Seipler, and given to one of the people mentioned in the deposition as having engaged in illegal acts. (For the second court hearing, Milliman was sitting outside awaiting his turn to be a witness.)

Judge Kapala can hardly have missed the point that Horwitz seemed trying to make, that is, the Sheriff’s disciplinary reports were far from the only documents that had been improperly released.

Seipler’s respect for the Sotos law firm was evident in his reply as to why he thought his wife would need an attorney after he found out that she had posted the documents:

Seipler: “Because she was going to have to answer to you…for posting the documents.”

Sotos: “What kind of a lawyer?”

Seipler: “Someone who could stand up to Jim Sotos and Associates. I wasn’t going to let her go in there without protection…

“The Sotos law firm will do whatever it has to to protect the Sheriff’s Department.”

At that point Seipler made reference to the deposition leaked to the Northwest Herald and the domestic violence police report:

“I believed that everybody was subject to the protective order.”

He later compared the internal disciplinary reports that his wife made public to the Scott Milliman allegations made public by Nygren’s Sheriff’s Office:

“The documents reflected cops behaving badly versus cops who could spend the rest of their life in jail.”

Asked about Milliman’s reliability, Seipler told of his being an officer with one of the highest records of arrest.

“He was a good cop. All the supervisors said that.”

As to his credibility, Seipler reported that Milliman had told him Nygren “thought of him as a son.”

Concerning the alleged criminal activity mentioned in his deposition, Seipler said,

“He was there when it was happening. He said he went to the FBI. He could get in big trouble.”

Horwitz asked if the information revealed was “potentially incriminating.”

“Right. Yes. The only ones who do that are ones who are coming clean.”

Horwitz brought up Dave Bachmann’s having revealed that Sheriff Nygren had two Homestead Exemptions and how after than Sheriff Nygren had called Milliman and said he wanted…

At which point Judge Kapala interrupted saying in a questioning voice, “Dave Bachmann is the one that Sheriff Nygren told Scott Milliman to kill.”

Getting an affirmative nod or facial expression, the Judge continued, “That’s all I need to know about that.”

This was one of several times the Judge indicated that he thought that more questions were being asked than was necessary to make the point being made.

At one point, he said, “This hearing’s going to take years if we’re going to go into that.”

Why did Seipler think his wife needed an attorney after learning of her posting of the disciplinary reports?

“It (the publishing of the protected documents) did not feel right. [It felt like] she was doing something wrong. I was concerned there was some kind of a breach of the court order.

“I was not comfortable with her just running out and saying, ‘I did it.’”

Rose Seipler did not hire an attorney immediately. Testimony was elicited that indicated financial problems were part, if not most, of the reason.

“We’re always late with our mortgage.”

By this time Seipler had won his arbitration case to go back to work at the Sheriff’s Department, but Nygren kept appealing until turned down by the Illinois Supreme Court, depriving the family of two incomes.

The relationship between Sheriff Nygren and Seipler was explored.

“Did you feel like the Sheriff was out to get you?” Horwitz asked.

“Yes,” was the terse answer.

Seipler again recounted Nygren’s having told him to “get good insurance” in the lobby of the Northwest Herald building before the joint editorial board appearance.

Discussing Milliman’s fall 2010 deposition in Seipler’s case, Horwitz asked, “What effect did that have [on you]?”

“What he said in the deposition scared me. We’re scared of the same people, including Sheriff Nygren.”

The phrase “squash you like a grape” came up.

“I don’t want to be squeezed like a grape.

“This is a very serious thing going on here.”

Seipler testified that he was scared after Scott Milliman’s brother “was shot dead.”

Horwitz sought the reason Seipler thought it significant that Scott Milliman’s brother was killed in unincorporated McHenry County.

“It was convenient,” Seipler said. “The agency that was to be tasked with the murder of Scott Milliman’s brother was the Sheriff’s Department.

He added that the woman in the house “was a CI [confidential informant] or her sister was a CI. I have no verification of either except what I’ve been told by other cops.

“She was there when he bled out,” Seipler said. [The shooting was right down the street from the Woodstock Hospital.]

Seipler also revealed that he took his concerns about the Sheriff’s Department racially profiling those to whom tickets were issued to the

• State Police
• FBI
• Equal Employment Opportunity Commission
• Department of Human Rights

It was brought up that the Sotos law firm was deeply involved in a Sheriff’s Department study of racial profiling.

“Basically, the Department investigated itself,” Horwitz asserted.

Agreeing, Seipler pointed out that the study came after the Chicago Tribune ran a 2010 front page story on racial profiling in the Sheriff’s Department.

In the courtroom was the Sheriff Department’s new Affirmative Action Officer, Don Leist.

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

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

“The Video Recording

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

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

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

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

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

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

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

= = = = =

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

= = = = =

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

= = = = =

More tomorrow.

= = = = =
Other articles in the series:

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

 

I have a new toy.  It’s called Pacer.

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

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

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

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

along with nine exhibits.

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

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

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

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

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

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

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

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

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

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

An Exhibit G is referred to with the following note:

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

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

The argument continues:

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

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

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

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

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

So, what’s in Exhibit G?

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

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

Let’s see what it’s all about.

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

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

Woodstock defense attorney Mark Gummerson was the man that Algonquin attorney Jason Smiekel got to represent him when Federal agents from the Bureau of Alcohol, Firearms and Explosives arrested him in a murder-for-hire plot the first week of August.

Gummerson withdrawal from the case was approved on August 26.

That day he was replaced by three Chicago attorneys:

• Darryl Goldberg
• Ralph Meczyk
• Mark Martin

Monday, Smiekel asked to be released from jail for the second time.

The first time Magistrate Michael Mahoney agreed with the idea, but the U.S. Attorney’s Office appealed and won a decision from Judge Frederick J. Kapala to continue pre-trial detention.
As was the case in second week of August, his request was denied.

Below is the ruling by Judge Kapala:

Defendant, Jason W. Smiekel, an attorney licensed in the State of llinois, is charged by indictment with seven counts of the use of interstate commerce facilities in the commission of murder for hire in violation of 18 U.S.C. § 1958.

These offenses are class C felonies punishable by terms of imprisonment of not more than 10 years on each count.

On August 11, 2011, this court ordered defendant detained pending trial after revoking the pretrial release order issued by the magistrate judge on August 10, 2011. Defendant now moves pursuant to 18 U.S.C. § 3145 to revoke the detention order. The motion is denied.

On August 11, 2011, this court held that the government proved by clear and convincing evidence that no condition or combination of conditions will reasonably assure the safety of any other person and the community. Specifically, in consideration of the applicable § 3142(g) factors, this court found that

1. the charged offense qualified as a crime of violence, see 18 U.S.C. § 3156(a)(4)(A), and defendant had not argued otherwise;
2. the government’s case against the defendant is strong;
3. defendant’s favorable history and characteristics do not outweigh the other factors strongly weighing in favor of detention; and
4. the nature and seriousness of the danger in the case is of the gravest type, the possible loss of human life.

The court agreed with the government that the ordered conditions of pretrial release,1 including home incarceration under electronic monitoring, were not conditions that would reasonably assure the safety of any other person because they were reactionary measures which would not prevent defendant, who had demonstrated a persistent willingness to terminate the life of people who interfere with his desires, from continuing his efforts to have the intended victim killed.

In support of the instant motion, defendant takes issue with two of this court’s previous rulings.

• First, he argues that the government has not proven that no set of release conditions will reasonably assure the safety of any other person and the community.
• Second, he argues that this is not a case in which the government is authorized to seek detention because the crime set forth in § 1958 is not a “crime of violence.”

In response to defendant’s motion, the government argues that defendant has failed to meet the standard for reopening a detention hearing. The court agrees.

Section 3142(f) provides:

The hearing may be reopened, before or after a determination by the judicial officer, at any time before trial if the judicial officer finds that information exists that was not known to the movant
at the time of the hearing and that has a material bearing on the issue whether there are conditions of release that will reasonably assure . . . the safety of any other person and the community. 18 U.S.C. § 3142(f). Defendant maintains that he is now in a position to proffer additional matters not previously presented:

1. his grandmother will post her unencumbered home valued at approximately $250,000;
2. he consents to the government monitoring his mother’s home telephone;
3. he agrees not to possess, use or access any computer;
4. he will not have any visitors other than counsel and U.S. Pretrial Services Officers;
5. he agrees not to engage in electronic communications of any kind; and
6. he offers additional third-party custodians.

Although these newly suggested conditions of release are material to the question of whether there are conditions of release that will reasonably assure the safety of any other person and the community, the court cannot conclude that they are based on information unknown to the defendant at the time of his detention hearing before the magistrate judge on August 10, 2011, or when this court revisited the issue de novo on August 11, 2011.

Defendant’s agreement to consent to additional release conditions (2) through (5), as well as his suggestion that three additional individuals will serve as third-party custodians, do not constitute information that was not known to him at the time of the earlier proceedings.

Likewise, as to additional condition (1), defendant must have known about his grandmother’s home and, at minimum, knew of the potential that she would post the asset in an effort to secure his release.

Defense counsel argues that defendant’s former counsel chiefly practices in state court where pledging real estate is very uncommon and, consequently, did not think to suggest this condition earlier.

Whether defendant’s former counsel actually knew about this possibility is unknown. Nevertheless, the standard is knew or should have known. See United States v. Taylor, No. 1:06CR111-1, 2007 WL 580627, at *2 (N.D. W. Va. Feb. 21, 2007) (applying should have known standard in § 3142(f)(2) new information analysis). This court judicially notices that defendant’s former counsel has been a member of this court’s trial bar since 1985 and as such is certainly charged with knowledge of § 3142(c)(B)(xi).2 Consequently, the court concludes that defendant has produced no new information that was not known to the him at the time of the earlier proceedings. This being so, defendant has failed to establish that the detention hearing should be reopened.

Even assuming for argument’s sake that defendant has satisfied the criteria for reopening a detention hearing, and assuming that the suggested conditions could be implemented, these conditions would not change the judgment of this court that there are no conditions of release which will reasonably assure that defendant will not harm any other person or the community. In addition to the findings this court already made in its order of August 11, as discussed below, the court makes additional findings regarding the applicable § 3142(g) factors using the clear and convincing evidence standard of § 3142(f)(2).

As an initial matter, the court notes that, in addition to the conditions of release previously ordered and those suggested by defendant, the court has considered all the conditions of release listed in 18 U.S.C. § 3142(c)(B)(i) through (xiv) in order to comply with its obligation to consider the possibility of less restrictive alternatives to detention. The court is mindful that defendant is presumed innocent during these proceedings.

See 18 U.S.C. § 3142(j). However, the court continues to believe that the evidence presented by the government in its evidentiary proffer demonstrates a strong case.

Defendant argues that this court overlooked the nature of the right to bail by basing its decision on only the nature of the offense and the strength of the evidence.

This is not true.

The court balanced all the applicable § 3142(g) factors and concluded that no set of conditions of release could reasonably assure the safety of the intended victim because:

[s]uch measures are reactionary and not preventative and defendant has demonstrated a willingness to terminate the life of people who interfere with his desires, including the intended victim and ostensibly the two hit men who took his money. Even under home confinement and electronic monitoring defendant would have at his disposal various ways of continuing his efforts to have the intended victim killed.

While the investigation of any harm done to the intended victim or any witness in this case would certainly be focused on defendant, any deterrent effect this creates is overshadowed by defendant’s persistence over the past seven months to have the intended victim killed.

The newly suggested conditions, like those previously ordered, are also reactionary and do not provide the court with a reasonable assurance of the intended victim’s safety in view of defendant’s persistent effort to take another’s life over a seven-month period as discussed in this court’s previous order.

The most vigorously debated new condition is the suggestion that defendant’s grandmother would agree to forfeit her $250,000 home should defendant violate a condition of release. Defense counsel calls this condition “moral suasion,” explaining that defendant is not likely to do anything to jeopardize his grandmother’s retirement.

However, in the court’s view, the fact that defendant’s grandmother is willing to pledge her home to secure defendant’s release says much about how important defendant is to her, but says nothing about defendant’s affection for his grandmother.

Counsel’s “moral suasion” argument, like his argument that it is very unlikely that defendant, now standing accused, will do anything to make his situation worse, does not hold up if defendant actually considers himself backed in a corner with nothing to loose.

Newly suggested conditions (3) through (5) are not materially different than the conditions of release previously ordered by the magistrate judge and subsequently found insufficient by this court. In addition, the court notes that defendant is a lawyer and as such is charged with knowledge of the law including the law prohibiting the use of interstate commerce facilities in the commission of murder for hire.

Despite this knowledge, the government proffers a strong case that defendant persisted in his efforts to have the intended victim killed for a seven-month period.

As such, defendant’s proffer that he agrees to various conditions of release does not give the court any comfort that he will abide by them.

Condition (2), tapping and listening to defendant’s mother’s land line, which is necessary to operate any electronic monitoring device, was not previously suggested. The government states that monitoring this line would require an agent to work around the clock, cost thousands of dollars, and that it is not fair to place that burden on the government.

In response, defendant claims that there is software available which could be used to monitor the line such that 24-hour-a-day man power would not be required. Due to the uncertainty and lack of evidence on the feasibility of this condition, the court cannot determine if it could be implemented. However, even assuming that this condition could be utilized in a cost effective way, it is still a reactionary measure and does not afford the court sufficient assurance of the intended victim’s safety.

Condition (6), defendant’s offer of the services of three additional third-party custodians, would only provide the court with three additional people bound to report defendant’s deviations from the conditions of release. See 18 U.S.C. § 3142(c)(B)(i). However, should defendant continue his efforts to have the intended victim killed, whether there is one report of the violation or four, it will likely be too late to assure his safety.

In sum, based on the foregoing findings as well as those made in this court’s previous order, the court cannot conclude that the proposed conditions of release are sufficient to overcome the safety concerns previously stated. Clearly, detention may be ordered based upon a finding that the defendant is likely to continue to engage in criminal activity which poses a threat to the safety of the particular person. See, e.g., United States v. Daniels, 772 F.2d 382 (7th Cir. 1985).

As for defendant’s contention that this court erred in concluding that the offense charged qualifies as a crime of violence, it is without merit.

The federal murder-for-hire statute requires the government to prove that the accused intended for a murder to be committed “as consideration for the receipt of, or as consideration for a promise or agreement to pay, anything of pecuniary value.” 18 U.S.C. § 1958(a). Crime of violence means:

(A) an offense that has an element of the offense the use, attempted use, or threatened use of physical force against the person or property of another; [or]

(B) any other offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense. 18 U.S.C. § 3156(a)(4)(A) & (B).

Obviously, murder under Illinois law involves a substantial risk that physical force against the person of another may be used. See 720 ILCS 5/9-1. Consequently, one need not look beyond the plain language of § 3156(a)(4)(A) to conclude that the charged offense is a crime of violence.

In addition, the government points out that several courts have explicitly found that a violation of § 1958(a) is a crime of violence within the meaning of 18 U.S.C. § 3142(f)(1)(A). See United States v. Barnett, 986 F. Supp. 385, 395 (W.D. La. 1997); United States v. Ouedraogo, No. 1:08-cr-68, 2009 WL 3270076, at *3 (W.D. Mich. Oct. 8, 2009); United States v. Ross, No. 1:05-CR-160, 2007 WL 1295995, at *3 (W.D. Mich. Apr. 6, 2007). Thus, there was no error in determining that defendant is charged with a crime of violence and is thereby subject to pretrial detention.

For the foregoing reasons, the court denies defendant’s motion to revoke the detention order previously ordered by this court.

= = = = =

FN1. In addition to the standard conditions of pretrial release and a $4,500 recognizance bond, the magistrate judge imposed the following conditions: (1) the defendant must live at the residence of his mother and stepfather; (2) his mother to serve as a third-party custodian of the defendant; (3) the defendant surrender his FOID card and passport; (4) no firearms are allowed in his mother’s residence; (5) he have no contact with any potential witnesses or alleged intended victims; and (6) he is on “home incarceration” with electronic monitoring at defendant’s expense.

FN2. This section provides for the “execut[ion of] an agreement to forfeit upon failing to appear as required, property of a sufficient unencumbered value, including money, as is reasonably necessary to assure the appearance of the person as required, and shall provide the court with proof of ownership and the value of the property along with information regarding existing encumbrances as the judicial office may require.” 18 U.S.C. § 3142(c)(B)(xi)

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

And he won.  See

“Philpott Beats Nygren“

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

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

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

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

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

Zane Seipler

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

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

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

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

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

Judge Mahoney immediately asked the contents of the subpoena.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Philpott was given an opportunity to talk at this point.

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

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

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

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

McHenry County Blog sat though the Rockford hearing before Magistrate P. Michael Mahoney a week ago on December 15, 2010. While I took notes, I thought it best to wait until I could obtain a copy of the transcript of the day before publishing anything.

The underlying case is one in which former McHenry County Deputy Sheriff Zane Seipler, who ran unsuccessfully against Sheriff Keith Nygren in the spring GOP primary election, sued the department for wrongful termination. Racial profiling has been a centerpiece of the case.

The first part of the transcript follows:

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
WESTERN DIVISION
ZANE SEIPLER, ) Docket No. 08 C 50257
)
Plaintiff, ) Rockford, Illinois
) Wednesday, December 15, 2010
v. ) 2:45 o’clock p.m.
)
CAPTAIN ANTON CUNDIFF, et )
al., )
)
Defendants. )
TRANSCRIPT OF PROCEEDINGS
BEFORE THE HONORABLE P. MICHAEL MAHONEY
APPEARANCES:

For the Plaintiff: THE BLAKE HORWITZ LAW FIRM, LTD.
(20 S. Clark Street, Suite 500, Chicago, IL 60603) by
MR. BLAKE WOLFE HORWITZ

For the Defendants: JAMES G. SOTOS & ASSOCIATES, LTD.
(550 E. Devon, Suite 150, Itasca, IL 60143) by
MR. JAMES G. SOTOS

Court Reporter: Mary T. Lindbloom
211 South Court Street, Rockford, Illinois 61101
(815) 987-4486

(The following is from a tape recording of proceedings:)

THE COURT: All right. 08 C 50257, Seipler v. Cundiff.

Good afternoon, counsels.

MR. HORWITZ: Good afternoon, Judge.

MR. SOTOS: Good afternoon, your Honor. Jim Sotos for the defendants.

MR. HORWITZ: Blake Horwitz for the plaintiff.

THE COURT: All right, counsels. I’ve got a lot of material here. Why don’t you just start off with tell me where  you think everything’s at at this point in time. Three minutes, though. Tell me where you think you’re at.

MR. HORWITZ: With regards to the status of discovery?

THE COURT: Status of discovery, where you think the case is going, what order you want me to take these motions on, anything you want to talk about. This should be just Merry Christmas to you.

MR. HORWITZ: Three minutes. Is it like a lawyer’s — is it a lawyer’s three minutes, or are we talking –

THE COURT: Well, you’ve already used up 15 seconds.  See, that’s always a mistake.

MR. HORWITZ: All right. So, generally speaking, we are prepared to be, I would say, close or at the end of discovery as of today. And as you read in the motion, which there’s an issue about it being under seal, which we need to  address. So, that’s question mark number one.

Where Deputy Milliman came forward and articulated that there was a long line of criminal activity that Sheriff Nygren was involved in. Some of the criminal activity would be 404(b) evidence. Other criminal activity would be 608 evidence.

Targeted criminal activity concerns the conduct of Sheriff Nygren and a gentleman by the name of Jose Rivera, which has an established — have established connection with the two of them.

In fact, they’ve recently gone on a meeting over in federal court, believe it or not, with Judge Barasa (phonetic), within the last week. So, they have a tight connection, the three of them — the two of them, excuse me — Jose Rivera and Sheriff Nygren and the criminal activity that they were engaged in.

One was to bring Hispanics undocumented over to McHenry County, actually to a particular apartment complex called the Stonelake apartment complex. That apartment complex is a place where officers engage in racial profiling. The officers that engage in racial profiling, the evidence would be, are Bruketta and Jones, the officers that we’ve talked about.

THE COURT: Wait a minute. You mean they lived there or what?

MR. HORWITZ: No. Stonelake Apartments is a place where many, many, many Hispanics, if not mostly Hispanics, live.  I haven’t taken a poll. But my client actually lives very close to there, and the facts are that it’s a place where there’s a very high percentage of Hispanics that live there, a very, very high percentage.

THE COURT: What’s this got to do with Bruketta?

MR. HORWITZ: Bruketta and Jones, especially Jones, there’s evidence that those officers actually stopped their vehicle at that location where the Stonelake Apartments are with the intention of developing a high number of arrests, which they benefit from, high number of arrests, and the arrests that they seek to undertake are those with regard to Hispanics. So, that’s racial profiling.

THE COURT: And they benefit because they advance as far as the Sheriff’s Department –

MR. HORWITZ: Yes.

THE COURT: — is concerned or they get priority as far as picking vacation days or something like that?

MR. HORWITZ: Officer Bruketta, for example, he was on the department I believe for a year or a little bit less than a  year, and his promotion was — and his self articulated promotion, meaning in his deposition said by being active performing arrests, generating lots of tickets, etc., I became a K-9 officer. That is a promotion at the department. So, each officer, though he’s not a sergeant, which we wouldn’t actually consider — I wouldn’t actually consider to be a promotion –

THE COURT: How does that come in? Your case that you’ve got pending here claims that your client’s First Amendment rights were violated because he complained publicly, which is what he’d have to, about racial profiling and got fired because of that, right?

MR. HORWITZ: Yes. He went to the Illinois State Police, FBI, the EEOC, his supervisors, etc., yes.

THE COURT: All right. Then he gets at least retaliated against. Okay?

MR. HORWITZ: Job demotions and termination.

THE COURT: That’s right. Now, now you’re sliding over and talking about this illegal activity. Now, the only way I can think that you can even try to connect this up with your lawsuit is to say what? One of the reasons the sheriff was so sensitive about this issue was because of this alleged illegal conduct, and so that’s why he fired your guy? In other words, counsel –

MR. HORWITZ: That is one of the bases.

THE COURT: Well, how does it fit into your lawsuit at this point? Your guy has a relatively straightforward lawsuit.

He says, “I saw racial profiling. I thought it was wrong. I complained about it. I went outside. I broke the code. And because of that, I was trampled on,” right?

MR. HORWITZ: Yes.

More tomorrow.