McHenry County Blog

The following motion was filed this week in the Federal wrongful terminiati0n suit of Zane Seipler against the McHenry County Sheriff’s Department.

Two items might be of particular interest:

• that Sheriff Keith Nygren’s stated intention to appeal his third loss in his attempt to keep Seipler from being reinstated should be considered “purely retaliatory” in nature.  Comparison is made to what happened to other deputies whose infractions concerning the mislabeling of race on traffic tickets were worse than Seipler’s.
• that a one-hour video of an internal investigation interview of Seipler by Deputies Lutz and Miller was withheld until after depositions (sworn testimony) of Lutz and Miller occurred.

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

ZANE SEIPLER, Plaintiff,
v.
CAPTAIN ANTON CUNDIFF,
LIEUTENANT JOHN MILLER #1431,
LIEUTENANT WILLIAM LUTZ,
SERGEANT POPOVITS, KATHLEEN
SEITH, KEITH NYGREN, individually and in
his official capacity as SHERIFF OF
MCHENRY COUNTY, and the COUNTY OF
MCHENRY,
Defendants.

No. 08-cv-50257
Judge Kapala
Magistrate Judge Mahoney

PLAINTIFF’S MOTION TO COMPEL AND FOR OTHER RELIEF

NOW COMES the Plaintiff, by and through his attorneys, Blake Horwitz, Esq. of The Blake Horwitz Law Firm, Ltd., and respectfully moves this Honorable Court for miscellaneous relief. In support of this motion, Plaintiff states the following:

Introduction

At the last moment of the most recent of several discovery closure dates, Defendants submitted new and essential information.

Just days before the October 3, 2011 discovery closure date, Defendants tendered an hour-long video tape of the Plaintiff, Defendants Lutz and Miller as well as a report from an “expert” who reviewed the internal investigation of 51 officers accused of racial profiling.

Juxtaposing Defendants’ repeated battle cry that Plaintiff seeks additional time for the completion of discovery with Defendants’ continued 11th hour disclosures (or nondisclosures), this Court can appreciate that Defendants have set forth arguments regarding the status of discovery that are disingenuous, at best.

Accordingly, Plaintiff respectfully asks this Court for relief, as set forth below.

Motion to Compel the Depositions of Defendants Lutz and Miller

An hour-long video-taped internal investigation of the Plaintiff was withheld from Plaintiff during discovery until ten days ago.

The internal investigation involved the Plaintiff and Defendants Miller and Lutz. During this internal investigation, Miller and Lutz interrogated Plaintiff in great detail as to the misidentification of race of two drivers that Plaintiff ticketed.

A lengthy and argumentative discussion ensued during the interrogation, with such force that the parties had to take a break to cool down. The relevance of this exchange cannot be understated.

Deputy Bruketta was promoted after having falsified the racial-profiling data on 100-150 tickets.

The Plaintiff, in sharp contrast, was fired and submitted for criminal prosecution.

Seventeen other officers were also given a pass for their false representations of race; none were subjected to videotaped interrogations regarding the hundreds of tickets they falsified. FN1

= = = = =
FN1 See Exhibit A, Deposition Transcript of Commander Cedegren at 52-54. Cmdr. Cedegren conducted the racial profiling internal investigation. The deposition excerpt provides the names of seventeen officers who “misidentified race” in a meaningful fashion.
= = = = =

The video-taped interrogation by Miller and Lutz clearly establishes the disparate treatment that Plaintiff received.

Revealingly, Defendants withheld the video tape until after Lutz’s and Miller’s depositions were completed and after Plaintiff’s supplemental deposition, which was completed two weeks ago.

The video tape, disclosed ten days after Plaintiff’s supplemental deposition, was essential to all three depositions.

No witness in this case was deposed after the video tape was released. Defendants’ technique cannot be allowed.

Plaintiff prays that this Court order that both Defendant Miller and Defendant Lutz be required to sit for one-hour depositions and that Defendants must pay for Plaintiff Counsel’s time in retaking the deposition as well as the associated costs, including but not limited to, the cost of transcripts.

Motion to Compel the Deposition of Sheriff Nygren

Sheriff Nygren’s deposition was reconvened by order of this Court in light of the supplemental internal investigation that was performed as to 51 Deputies in the Sheriff’s Office. Four weeks after Sheriff Nygren’s deposition and at the repeated urging of Plaintiff’s Counsel, Defendants disclosed the report of Dr. Van Meter for the first time. FN2

= = = = =

FN2 Dr. Van Meter’s report was tendered on September 29, 2011.

= = = = =

Van Meter’s report was used as a basis for Sheriff Nygren’s decision not to punish any of the officers who falsified and/or “misidentified” the race of ticket recipients.

In other words, out of all the officers who misidentified race, only the Plaintiff should be

• punished,
• criminally prosecuted and
• terminated.

Given the importance of understanding disparate treatment as the cornerstone to discrimination cases, FN3 Plaintiff should be able to re-take the deposition of Sheriff Nygren and inquire as to how Dr. Van Meter’s newly disclosed opinions and report influenced the Sheriff’s decision to give all seventeen of the offending officers a pass but to seek prosecution and termination of the Plaintiff.

= = = = =

FN3 Bio v. Fed. Express Corp., 424 F.3d 593, 597 (7th Cir. 2005), Dear v. Shinseki, 578 F.3d 605, 610 (7th Cir. 2009).

= = = = =

Plaintiff asks that this Court compensate Plaintiff’s counsel for the time necessary to retake Sheriff Nygren’s deposition and costs associated therewith.

As above, Defendants should not be allowed to benefit from withholding information to the Plaintiff’s detriment. Alternatively, Plaintiff asks that, as a Rule 37 sanction, Defendants should be prohibited from introducing any evidence at trial as to the explanation for the disparate treatment that was afforded the other officers who misidentified race.

Pattern of Non-Disclosure

As this Court may remember, Defendants withheld 5,000 tickets that were generated by McHenry County Sheriff Deputies.

Those tickets demonstrated that Jeremy Bruketta fabricated the race on at least 100 additional ticket recipients. As a result of the late disclosure, Deputy Bruketta’s deposition was retaken pursuant to order of the Court.

Defense Counsel has withheld

• e-mails,
• reports and
• data reflecting Defense Counsel’s involvement in the internal investigation of 51 officers.

This matter is currently pending before this Court.

In sum,

• 5,000 tickets,
• a video of the Plaintiff,
• an expert’s report and
• Defense Counsel’s investigatory materials

have been withheld from Plaintiff and/or tendered at the eleventh hour.

Consequently, Plaintiff prays that this Court enter an order which requires that Defense Counsel and Defendants certify that all discovery in connection with Plaintiffs’ Request to Produce has been complied with. Plaintiff prays that Defendants comply with this request prior to any further discovery is undertaken.

Motion to Supplement Discovery

Sheriff Nygren has lost three court battles relating to the reinstatement of the Plaintiff.

This weekend’s news reports reveal that Sheriff Nygren now seeks to appeal to the Illinois Supreme Court his most recent loss. Sheriff Nygren’s stated goal is to prevent the re-employment of the Plaintiff.

Nygren’s conduct is purely retaliatory, since he knows that the Plaintiff has been off work and as a result has great difficulties supporting himself.

Plaintiff seeks to disclose an expert as to the low likelihood of success on a Petition for Leave to Appeal to the Illinois Supreme Court, which would support the contention that Sheriff Nygren’s conduct is retaliatory.

Local Rule 37.2 Compliance

Plaintiff’s Counsel Blake Horwitz spoke to Defense Counsel Liz Barton on October 10, 2011. During this conversation both attorneys addressed the re-production of Defendants

• Lutz,
• Miller and
• Nygren

for deposition. Ms. Barton advised that she objected to the re-production of these witnesses.

WHEREFORE, Plaintiff respectfully requests that this Court grant the following relief:

1. order the retaking of the depositions of Sheriff Nygren, Miller and Lutz;
2. order the Defendants to pay for the new transcripts and attorney time for the subsequent depositions;
3. permit Plaintiff leave to disclose an expert;
4. order the Defendants to certify that their discovery materials in connection with Plaintiff’s requests to produce are complete; and
5. enter an order for any and all other alternative relief the Court deems just under the circumstances.

/s/ Blake Horwitz
Blake Horwitz, Esq.
One of Plaintiff’s Attorneys
The Blake Horwitz Law Firm, Ltd.
39 South LaSalle Street, Suite 1515
Chicago, Illinois 60603
Telephone: (312) 676-2100
= = = = =
James Sotos is the lead attorney for Sheriff Keith Nygren.

Yesterday, McHenry County Blog posted the latest motion in the ongoing wrongful termination suit brought by former McHenry County Deputy Sheriff Zane Seipler against the man who fired him, Sheriff Keith Nygren.

That’s the suit involving racial profiling by Nygren’s deputies.  Seipler alleges he was fired for bringing up the subject.

There was an Exhibit A mentioned, which I now have and share with you below:

It mentions a Dr. Van Meter, a name that apparently came up in a recent deposition.

At least that is what I have been told Sheriff Keith Nygren did for the two Heralds.

No press release, but, predictably, the outcome of the investigation as to whether minorities were targeted for traffic tickets was, “NO WAY, JOSE!”

That issue, of course, is what is being litigated in former McHenry County Deputy Sheriff Zane Seipler’s Federal wrongful termination case in Rockford.

Somehow I don’t think an internal report is going to make a terribly large impact on the Federal judges in the case.

McHenry County Blog created quite a stir February 9th when it published the letter below concerning the internal probe. The letter is dated January 20, 2011.

You can find the Daily Herald article

Seipler also told the reporter,

“They can say whatever they want. It’s just an out-and-out lie and we’re going to prove it in court. They all know how it was supposed to be done. It’s not a training issue. It was those guys violating the law.”

WGN Shooting Tape of Former Deputy Sheriff Zane Seipler

A WGN-TV crew was in Woodstock recently shooting for a segment that will probably coordinate with a Chicago Tribune story.

You may remember that McHenry County Blog told you what the Tribune reporter sought through a Freedom of Information request from Keith Nygren’s McHenry County Sheriff’s Department:

• Tribune Seeks 4 Years of McHenry County Jail Booking Data
• Four Years of Racial Profiling Instructions Requested by Tribune
• Tribune Asks for 4 Years of Booking Photos from McHenry County Jail
• Tribune Probes 4 Years of Traffic Stops by McHenry County Sheriff’s Department
• Tribune Seeks Deputy Disciplinary Investigations for Improper Vehicle Code Logging

The last multi-media attention received in McHenry County concerned Lakewood’s McHenry County SportsPlex.

It’s amazing what pops into the in box of McHenry County Blog.

The latest is a January 20 2011, letter from McHenry County Sheriff’s Office Administrative Bureau Commander Lt. Duane Cedergren.

It’s about an internal investigation of racial profiling, the very subject that whistle blower former Deputy and unsuccessful Republican primary candidate for Sheriff Zane Seipler is basing his wrongful termination suit against the department.

The Commander talks about “extremely unusual circumstances, which necessitate further explanation.”

Take a read and draw your own conclusions.

In order to make the letter searchable, I reprint its text:

The purpose of this memo is to inform everyone of a department internal review that is currently pending. I know that many of you have some questions about what the review entails. These are extremely unusual circumstances, which necessitate further explanation.

As a result of a pending federal lawsuit that concerns allegations of racial profiling, a review of ALL of our traffic citations, written warnings, and stop cards from 2007, 2008, and 2009 was conducted. We identified three areas that require further review.

One: Not completing the racial profiling data on traffic tickets. Accurately filling out the racial profiling data on the back of a ticket is required both by the State of Illinois and McHenry County Sheriff’s Office General Orders. This data provides valuable information, and therefore, it must not only be recorded, but it must be done so accurately. We plan to re-train all officers in this area.

Two: Recording drivers with apparent Hispanic surnames as “Caucasian.” It has become clear that a number of officers are marking what appear to be Hispanic drivers (based on their surnames only) as “Caucasian” on the back of their traffic tickets. The law prevents you from asking any driver what their race is, but I want to emphasize that your perception needs to be as accurate as possible to reflect the race of the individual that is operating the motor vehicle. Therefore, we believe interviews and training on these issues are necessary.

Three: Any specific minority race that received a higher percentage oftickets than the department average. There are also a number of officers who have higher percentages of minority traffic stops than the departmental average. While we recognize there may be a variety of reasons why these officers have higher percentages of minority traffic stops than the departmental benchmark, this
review is part of the proactive measures we are taking to ensure that systematic racial profiling is NOT occurring.

A set of criteria was established to help decide who will be interviewed. With the guidance of our legal counsel, the following criteria or “benchmarks” were established for anyone that wrote a minimum of 45 citations, warnings, or stop cards in a respective year:

• For not completing any race profiling data: the benchmark was set at a minimum of 20% or more of the stops for the year (accident citations and multiple citations were identified and removed from the totals);
• For what appears to be the marking drivers with apparent Hispanic surname as “Caucasian”: a benchmark of 5% or more ofthe officers’ total stops for a particular year;
• When an officer had a higher percentage of minority traffic stops than the department average: the benchmark was set at 5% or more above the department average for each respective year.

Anybody that fell above these benchmarks has been issued a notice to be interviewed.

I hope this letter has clarified some of the questions about our internal review. For those being interviewed, we apologize for the timing and miscommunication as this situation has progressed. As always, I am available to discuss any further questions or concerns.

Respectfully,

Lt. Cedergren
McHenry County Sheriff’s Office
Administrative Bureau Commander

Seeking four years of data, Chicago Tribune reporter Joe Mahr has filed a wide-ranging Freedom of Information request with the McHenry County Sheriff’s Department.

Whether this is part of a systematic comparison of arrest procedures through the Tribune’s circulation area or targeted only at McHenry County is unknown.

The fourth category of information sought concerns racial profiling polices and procedures, specifically,

Any policies and procedures (preferably electronic but, if not available, then in paper format) that discuss, instruct, or offer guidance to deputies on how fill out the racial profiling information required by the state under 625 ILCS 5/11 212. I am seeking current policies and procedures, as well any former policies in effect at any point since Jan. 1, 2007.

This is the type of information that may have relevance to former Deputy Zane Seipler’s wrongful termination case.

More tomorrow.

Christmas Eve, McHenry County Blog ran the first part of the December 15, 2010, transcript of a Rockford hearing before Magistrate P. Michael Mahoney.

December 25th, the second part was published with the third installment published Sunday. Part 4 went up Monday, Part 5 Tuesday, Part 6 Wednesday, Part 7 Thursday, Part 8 Friday and Part 9 Saturday.

January 2nd brings us to the last installment, Part 10. Whether or not to seal McHenry County Sheriff’s Deputy Scott Milliman’s deposition is the main topic.

MR. HORWITZ: Judge, the motion that I filed, I sent it to you with a footnote. The question is is that under seal, the motion that I submitted to you, the motion for extension of time.

THE COURT: The motion that you — the hard copy of a motion that you send to me never makes the court file. You have to CMF file.

MR. HORWITZ: I understand. I know that. I sent it to you for purposes of I was coming in right now and you saying –

THE COURT: Nothing you send to me ever reaches the court file. So, you don’t have to put anything under seal that you send me.

MR. HORWITZ: What I meant to say is I have not filed that motion because there’s issues in the motion that are sensitive. And so, I ask the question is that –

THE COURT: It sounds sensitive to me.

MR. HORWITZ: So, the question is whether or not that should be publicly disclosed information because people have a right to know, in my humble opinion, or whether or not that should be filed under seal. So, I’m here to ask you that question right now so I don’t violate any order.

THE COURT: I haven’t entered one yet.

MR. HORWITZ: Okay.

MR. SOTOS: We think the document should be under seal, Judge.

THE COURT: Boy, I tend to think the same thing, but I’m not sure the Seventh Circuit does.

MR. SOTOS: Well, these are some really –

MR. HORWITZ: Do you want to brief that issue?

MR. SOTOS: This stuff is coming up in the context of a lawsuit. Discovery is not public. These allegations are so far out there and potentially so damaging that we think it’s extraordinary enough that it should be kept under seal and that this shouldn’t turn into a big public brouhaha based on one person’s –

THE COURT: Do you want it under seal, too, or do you want it not under seal?

MR. HORWITZ: No. I think the public has a right to know.

THE COURT: I understand. You give me seven days to submit cases to me that says it should be under seal. You have the same seven days to submit cases that indicates that it shouldn’t be under seal.

MR. SOTOS: That’s fine, Judge.

THE COURT: They’re the same cases we all read in the Seventh Circuit, but I’ll want to take a look at them again.

You give whatever twist you think is appropriate for under seal, and you give yours. When do you want to come back here?

MR. HORWITZ: Whenever you like, Judge.

THE COURT: Well, I’m thinking late January. Do you want a special setting, or do you want me to put you with the general call? The case behind you at 2:00 o’clock would rather a special setting, I think, right now.

MR. SOTOS: I appreciate that, Judge. And if that suits the court better, we’re happy to do it that way.

MR. HORWITZ: My guess is — I don’t know, Judge. I really don’t know. My guess is we’ll –

THE COURT: My guess is you’re about done, and it’s not going to be that bad from this point forward. You don’t have much left.

MR. HORWITZ: I tend to agree.

THE COURT: What’s the 28th look like? Is that pretty light?

THE CLERK: January?

THE COURT: Yes. That still gives me some time to maneuver just in case you got a problem, somebody didn’t show up for the deposition.

THE CLERK: You already have something at 2:00 o’clock. You have a final pretrial conference. Right now it’s not heavy.

THE COURT: Why don’t I give you 2:30 that day.

MR. HORWITZ: What day?

THE COURT: 1-28, 2011, 2:30 in the afternoon. Give me any Rule 37 motions in time that I can try to rule upon them then.

Counsels, you have a great holiday. I’m done for the day.

MR. SOTOS: Thanks for your patience, Judge.

THE COURT: I’m done for the day, counsel. You had enough time.

MR. SOTOS: Thanks for your patience

MR. HORWITZ: Okay. Well, we’ll present it by way of motion then, I guess.

THE COURT: I don’t know, but you’re not getting it today.

MR. HORWITZ: All right. Thanks, Judge.

THE COURT: Have a great day, counsels.

(Which were all the proceedings had in the above-entitled cause on the day and date aforesaid.)

I certify that the foregoing is a correct transcript from the tape-recording of proceedings in the above-entitled matte

Mary T. Lindbloom
Official Court Reporter

Christmas Eve, McHenry County Blog ran the first part of the December 15, 2010, transcript of a Rockford hearing before Magistrate P. Michael Mahoney.

December 25th, the second part was published with the third installment published Sunday. Part 4 went up Monday, Part 5 Tuesday, Part 6 Wednesday, Part 7 Thursday and Part 8 Friday.

Now it is New Year’s Eve Day and time for Part 9. Most discussion is about who gets to be deposed for how long, plus production of a traffic ticket data base which includes voided tickets.

Having finished up arranging for Jill Tutt’s deposition, the Judge tried to wrap up the hearing.

THE COURT (continued): What else you want? When are you going to get all this done by? January 31st? Can you get this all done by January 31st?

MR. HORWITZ: Let me just tell you what else, Judge.

MR. SOTOS: Judge, I could be done tomorrow.

THE COURT: All right. All right.

MR. SOTOS: I’ve been done –

MR. HORWITZ: That’s fine. Okay. I stipulate to him being done tomorrow, no further discovery.

THE COURT: Well, but you can’t be done tomorrow, either.

MR. HORWITZ: Well, that’s different.

THE COURT: Can you get all this done by January 31st, counsel on behalf of the plaintiff?

MR. HORWITZ: Can I just tell you what else there is before I say that?

THE COURT: Aren’t you done?

MR. HORWITZ: No.

THE COURT: What else you got?

MR. HORWITZ: All right. The deposition of Ms. Weech, Janet Weech.

THE COURT: I gave you 30 minutes.

MR. HORWITZ: In her deposition she said that there is a complete — remember I’ve been sort of ranting and raving about not having a complete database?

THE COURT: I’ve never associated you with ranting or raving.

MR. HORWITZ: I lodged some pretty serious allegations attributable to that, sent e-mails to defense counsel, and let’s just say I was commenting about it in a zealous way.

So, in that regard she said, “Oh, by the way, there is a full database,” and no, it is not what defense counsel gave us. So, for example, if you talk about the 140 that you saw relative to Bruketta, Judge, it could be 200. It could be 250.

I don’t know. But I have notified defense counsel over and over and over again that the information they gave us is not correct.

So, what Janet Weech said is yeah, there is a full and complete database for the years you’ve indicated. What his associate said in the deposition is “Mr. Horwitz, I will get that to you,” and she said she would get it to me on Monday, and I understand they had a trial going on, and they’ve been busy.

So, maybe it’s in the mail today by Federal Express. I do not know. But she said she would try to do it Tuesday. Memorialize all this by e-mails and whatnot, and what would be really great to have is that information. Now, to be clear, when –

THE COURT: Well, they say they sent it to you on the 8th.

MR. HORWITZ: No, it’s not been sent to us, Judge.

THE COURT: All right.

MR. HORWITZ: And to be clear — so, we want that information. And just so you know, Sieth, who’s a defendant in this case, relied upon a portion of this data and not the database that I received from counsel, not that data, but this data that hasn’t yet been tendered to me, she relied upon that.

Okay? I can explain in great detail, if you want, but she relied upon it in order to determine that there was no racial profiling that took place. So, anyways, I would love to get that data and work with it and then –

THE COURT: What other depositions do you have?

MR. HORWITZ: The other deposition is completing Sieth’s deposition. She produced herself for deposition in my office and then –

MR. SOTOS: My office.

MR. HORWITZ: No, it was my office. Jim, trust me on it. I remember seeing her in my office.

MR. SOTOS: First time. All right.

MR. HORWITZ: Yes. And so, I don’t care where it follows up, that’s fine. I enjoy going to Jim’s office. They’re very hospitable.

Anyways, after I receive the updated database, the actual correct database from the years two thousand — I think

it’s five to 2008, then I would like to take her deposition and talk to her about the actual correct data this time.

THE COURT: All right.

MR. HORWITZ: So, her deposition wasn’t completed.

THE COURT: All right. What about the database?

MR. SOTOS: Last time I was here, I wasn’t in a position to respond. Now I am. They requested in discovery all data concerning racial profiling statistics — by the way, over 9 a year and a half ago — and we gave them what we provided to IDOT, which was the database with all the tickets.

What wasn’t in there was information about voided tickets because for a variety of reasons, deputies sometimes don’t fill out the racial profiling data. When they don’t, the department doesn’t include that in what they send to IDOT. So, we provided them what they asked for a year and a half ago, which was all the information we provided to IDOT, and he’s correct. That’s what Kathleen Sieth relied on when she did her racial profiling investigation.

Now, he took Jan Weech’s deposition, who said — he 20 asked about what about the voided tickets. She explained the situation and says yes, we do have a database that if we wanted to get information about voided tickets, we can. So, we told him, “We’ll get it for you.”

But, you know, the idea that he can stand here and say like we gave them inaccurate information, false information, it’s entirely untrue. We provided them a year and a half ago with exactly what they asked for and exactly what we relied on.

Now we get towards — you know, after all these final discovery extensions, now I want to take depositions based on this other thing that I’m looking into now, voided tickets –

MR. HORWITZ: Jim, I’m sorry.

THE COURT: Now, wait. Wait.

MR. HORWITZ: Okay. I’ll wait. More than happy to wait.

MR. SOTOS: So, we said during Weech’s deposition we’ll see if we can create a spreadsheet. We don’t have a spreadsheet for that because that’s not the information that we provided to IDOT, which is what we create the spreadsheet for. See if we can create one and get that to you. And I don’t know what the status of that was. Her deposition was just a couple of days
ago. With respect to Ms. Sieth –

THE COURT: Well, let’s back up a minute.

MR. SOTOS: Still on the database.

THE COURT: On the database, when do you expect to produce the database as far as voided tickets?

MR. SOTOS: If we can do that, and I’m sure we can, I would hope within seven days or so, maybe less. As soon as we can get it, we’ll give it to him.

THE COURT: All right. So, he should have it by the end of the year.

MR. SOTOS: Oh, definitely before the end of the year. If we can do it, we’ll get it to him before the end of the year.

MR. HORWITZ: I would like it before I take another dep because if it’s 250 or whatever relative to Bruketta –

THE COURT: All right. You’re going to have it before the end of the year. Now, what other depositions do you need?

MR. SOTOS: He said Ms. Sieth.

THE COURT: He says Sieth.

MR. SOTOS: Who he wants to take again.

MR. HORWITZ: No, no, no.

MR. SOTOS: Just so you know, she was at my office last week for her deposition, and she was there all day, but we didn’t get to that because he didn’t get to the office ’til 10:30.

THE COURT: You want Sieth. You want Cundiff, too?

MR. HORWITZ: Yes. I guess I don’t need to address Cundiff’s. I mean, you’re already ordering it. So, I don’t need to.

THE COURT: How long do you want for Sieth?

MR. HORWITZ: Two hours.

THE COURT: Counsel, your input.

MR. HORWITZ: She’s a party.

THE COURT: Counsel, your input.

MR. SOTOS: She’s already been deposed once. She was at my office last week all day for her deposition. The depositions — there were three. They were supposed to go at 9:00, 12:00, and 3:00. He didn’t get there ’til 10:30, didn’t get the system set up –

THE COURT: 10:45 until he got ready.

MR. SOTOS: Right.

THE COURT: I read it.

MR. SOTOS: So, I think that he’s had his opportunity for Ms. Sieth.

THE COURT: You can have an hour.

MR. HORWITZ: Judge, may I on this?

THE COURT: Cundiff.

MR. HORWITZ: That’s the only one I want to push, Judge. I’m sorry. I’m not retaking her deposition. Her deposition never completed. She had to leave when she was at –

THE COURT: You’ve got an hour. Do you want Cundiff or not?

MR. HORWITZ: Yes.

THE COURT: How long?

MR. HORWITZ: He’s a party. What you’ve allowed for parties. I think it’s six hours.

MR. SOTOS: You know, Judge, I understand that you allow six hours for parties. I keep saying the same thing.

We’re over two years into the case, and there’s no reason he couldn’t have taken Cundiff’s deposition.

THE COURT: You can have two hours on Cundiff.

All right. What do you want as a fact discovery cutoff date?

MR. HORWITZ: I’m sorry.

THE COURT: What would you like as a fact –

MR. HORWITZ: Could I possibly talk to you about the amount of time?

THE COURT: On Cundiff?

MR. HORWITZ: On both.

THE COURT: No, you can’t on Sieth. Yes, you can on Cundiff.

MR. HORWITZ: All right. Judge –

THE COURT: I was more arbitrary on Cundiff.

MR. HORWITZ: Judge, I’m sorry.

MR. SOTOS: Judge, I’ll agree to three if it will just –

THE COURT: Three good on Cundiff? Do you want it?

MR. HORWITZ: Judge, he’s a captain. He’s –

THE COURT: Counsel, we’re at the end. Why are we taking all these depositions on an ’08 case with ten minutes left to go?

MR. HORWITZ: The answer is –

THE COURT: Yeah.

MR. HORWITZ: Well, I’ll tell you one meaningful thing that occurred. I actually split with my partner during the middle of this. I just want you to know.

THE COURT: All right.

MR. HORWITZ: So, that was a very meaningful business activity that occurred.

THE COURT: All right.

MR. HORWITZ: And, secondly, we have received, just so you know, thousands and thousands and thousands from the defendants –

THE COURT: How much time –

MR. HORWITZ: — and we analyze them before we take deps.

THE COURT: How much time do you want on Cundiff?

MR. HORWITZ: Okay. I would like the amount of time you provided. Just so you know, Judge, these depositions are not easy, meaning that they’re recalcitrant witnesses. They don’t testify as to what actually takes place. There’s a lot of objections. We’ve done depositions where there’s up to three to 400 objections lodged by defense counsel and other parties. So, I would like –

THE COURT: All right. When are you going to be done, counsel? When are you going to be done with fact discovery?

MR. HORWITZ: Do I get to get back to Sieth? I would really like to address the Sieth issue. It’s very important, Judge. She was –

THE COURT: You already took this one.

MR. HORWITZ: Judge, no, no. I didn’t already take her. I was never given the six hours for Sieth.

THE COURT: How much time –

MR. HORWITZ: I think she came to my office for three hours, Judge.

THE COURT: How long of that did you get?

MR. HORWITZ: Three hours. She left. “I have to go,” her words were. “I’ve got to go right now.” It was either a personal matter or whatever. She was in my office for three hours.

THE COURT: How many hours are you asking on Sieth?

MR. HORWITZ: I think whatever your order provided.

Just so you — Judge, just so you understand, I was never given the data that she relied upon. I told defense counsels over and over and over again –

THE COURT: So, you’re asking for an additional three hours on Sieth. You’re asking for six hours on Cundiff.

MR. HORWITZ: Just the correct amount of time I’m supposed to have for Sieth. In other words, I never asked for her to leave. She left. So, I would like the full amount of time so that I can get into the basis of her opinions.

MR. SOTOS: It was 7:00 o’clock in the evening, Judge.

THE COURT: I understand. What is the date you’re going to be done with discovery, counsel? When are you going to be done?

MR. HORWITZ: Okay. Now we’re moving on to the next question. I would recommend February 15th.

THE COURT: Any objections to that?

MR. SOTOS: Yes, we object, Judge. We think discovery — there’s been three final extensions, and discovery should be closed. I don’t see any reason why this work can’t be done in 30 days, 45 at the outset, but this thing just keeps going on and on, and what’s going to happen is –

THE COURT: I’d agree, but I got the holiday period in here, counsel. I mean, that’s really only 45 days of discovery, if you look at it.

MR. SOTOS: You know, Judge, every time we get into a new discovery period –

THE COURT: Listen. There’s no sense you and I arguing. February 15th is the fact discovery cutoff date. March 15th, 2011, is the dispositive motion due date. You get an hour and a half on Sieth. You get three hours on Cundiff.

That’s it. Anything else?

MR. HORWITZ: Yes.

THE COURT: I don’t think so.

MR. HORWITZ: Well, are you asking a question, or are you withdrawing your question? Because there actually are other things.

THE COURT: Like what?

MR. HORWITZ: All right. Let me gather my notes.

MR. SOTOS: Is that a final deadline, Judge?

THE COURT: I’m not — barring health issues, somebody 2 gets sick –

MR. SOTOS: I understand that.

THE COURT: — somebody gets sick, somebody becomes ill –

MR. SOTOS: I understand.

THE COURT: — I got that. But other than that, I’m not extending it.

More tomorrow.

Christmas Eve, McHenry County Blog ran the first part of the December 15, 2010, transcript of a Rockford hearing before Magistrate P. Michael Mahoney.

December 25th, the second part was published with the third installment published Sunday. Part 4 went up Monday, Part 5 Tuesday, Part 6 Wednesday and Part 7 Thursday.

Now it is New Year’s Eve day and time for Part 8.

THE COURT: What else do you need?

MR. HORWITZ: Okay. So, I’ve mentioned the deposition of Jose Rivera, Gary Pack.

MR. SOTOS: What about Rivera? I didn’t know that that was resolved.

THE COURT: I haven’t done that yet. I haven’t done Jose Rivera. You know the ones I’ve done. You’ve written it down.

MR. SOTOS: No. I just said that because he said that I’ve already said Rivera.

THE COURT: No. You want to take Jose Rivera, and who else do you want?

MR. HORWITZ: Just so you know, I did already issue a subpoena for him and Gary Pack for tomorrow, the depositions. I issued that last week.

THE COURT: Did you clear the date with counsel?

MR. HORWITZ: No, I did not. I just spoke to him about it right now, but, no, I didn’t clear the date, Judge. Things were happening very fast with Deputy Milliman’s testimony and all the back and forth we’ve been doing in this case. So, I sent out the subpoena, and I’m more than happy to clear the dates and cooperate fully.

THE COURT: Well, and I’ll direct that you do so.

MR. HORWITZ: Absolutely. That’s perfectly fine. We always do it. And, by the way, you wrote down that July 22nd. That’s just not correct. But that’s their spin on it. That’s all it is.

THE COURT: Well, that’s what he told me. That’s why I wrote it down, counsel.

MR. HORWITZ: I understand.

THE COURT: I do that to take notes. I’m not writing an opinion up here. I’m just trying to keep up with the two of you. Now, you want Jose Rivera. Who’s the other guy again?

MR. HORWITZ: Gary Pack.

MR. SOTOS: He’s a former State’s Attorney from McHenry County.

THE COURT: Why do you want Mr. Pack?

MR. HORWITZ: Because Deputy Milliman stated that what Jose Rivera would do is speak to those individuals — speak to the Hispanics, communicate with the Hispanics that were pulled over for driving a vehicle without a valid driver’s license and –

THE COURT: I’m listening.

MR. HORWITZ: And he would then ask them if they want to enter into a deal whereby their case is dismissed or nolle prosequi in exchange for money. He said –

THE COURT: Who gets the money?

MR. HORWITZ: Jose Rivera does. Somebody in the State’s Attorney’s Office. I do not know who yet.

THE COURT: How does this fit into your guy?

MR. HORWITZ: And Sheriff Nygren receives the money.

MR. SOTOS: Judge, can I just say something?

MR. HORWITZ: These are Hispanics that are targeted.

THE COURT: I got that, but you still haven’t told me. How does this fit into your case?

MR. HORWITZ: It fits into the case, number one, Hispanics were targeted. Just like in our racial profiling case, Hispanics were targeted.

THE COURT: Who’s Jose Rivera?

MR. HORWITZ: He’s a business partner of Sheriff Nygren.

MR. SOTOS: The criminal coconspirator.

MR. HORWITZ: Pursuant to Deputy Milliman in a sit-down conversation –

THE COURT: So, you’re telling me that the money, you think, gets to Nygren eventually?

MR. HORWITZ: Absolutely, Judge. That is what Deputy Milliman stated.

THE COURT: All right.

MR. SOTOS: Judge –

MR. HORWITZ: He is what he is. He said what he said. And, you know, I don’t know what else to tell you, but those are his words.

MR. SOTOS: Can I tell you one more thing, Judge?

THE COURT: Sure. Why not. I’ve heard everything.

MR. SOTOS: I know. I know.

MR. HORWITZ: There’s still more.

MR. SOTOS: This Milliman testified that his perception of this scheme is based on conversations, and I’ll provide you with the dep transcript if counsel disagrees, that occurred between him and Nygren and Rivera back in 1999 and 2000, and he believed that this criminal enterprise was ongoing up through 2006, which is before –

THE COURT: All this happened.

MR. SOTOS: — any of this happened. And all I would say is that these are really serious allegations, and they may well — you know, if there’s a criminal investigation or something of that sort, I get that, but for that to become something that we’re now going to investigate in this case seems to me to be so far beyond the pale from –

THE COURT: Have you had the number of depositions that were authorized in the case management order at this point?

MR. HORWITZ: I don’t think so, but I haven’t tallied it up.

THE COURT: Counsel?

MR. SOTOS: I believe that he has, Judge, but I can’t tell you that right now –

MR. HORWITZ: I don’t think that’s true.

MR. SOTOS: — for certain.

THE COURT: Well –

MR. SOTOS: I’m fairly certain that he has.

THE COURT: Well, if, in fact, counsel hasn’t, he doesn’t need my permission to take the depositions. If he has, he does. Now, is that it then, those two?

MR. HORWITZ: Jill Tutt is a deposition that defense counsel’s associate stated that she would set up, and she’s not given a date yet for Jill Tutt’s deposition. That’s a deposition –

THE COURT: That was originally set up on July 15th, 2010; is that right?

MR. HORWITZ: I don’t know the date, Judge. What happened is that defense counsel — you provided four hours, and the deposition goes forward, and then she either has to leave or whatnot, and I don’t get an opportunity to redirect, or whatever you want, ask questions.

THE COURT: Do you all agree — did you all agree to –

MR. SOTOS: He deposed her for three and a half hours on July 15th, six months ago.

MR. HORWITZ: I didn’t depose her. Your associate did, noticed her up. And I did not get an opportunity to ask questions, and she left, and that’s what happened.

THE COURT: How much time do you want?

MR. HORWITZ: Two hours.

THE COURT: That means you take one.

MR. HORWITZ: That’s right. I was thinking of saying three.

THE COURT: I used to be a plaintiff’s lawyer, too.

MR. HORWITZ: I was thinking of saying three. I wasn’t sure how that would play out.

COURT: I’ll give you one.

More tomorrow.

December 24th, McHenry County Blog ran the first part of the December 15, 2010, transcript of a Rockford hearing before Magistrate P. Michael Mahoney.

December 25th, the second part was published with the third installment published Sunday. Part 4 went up Monday, Part 5 Tuesday and Part 6 Wednesday.

This is Part 7.

As we ended yesterday’s portion of the transcript, Judge Mahoney was asking, “Well, what else is there?”

MR. HORWITZ: There’s a Monell theory.

THE COURT: Okay.

MR. HORWITZ: There’s code of silence. There’s retaliation. For example, there are seven officers, Judge, who have come forward to testify, five in deposition, that there’s a code of silence at the department. There’s retaliation for coming forward. If you exercise your First Amendment — if you speak out against the department — five cops have testified.

These are guys that are working at the department, except for one.

THE COURT: Okay.

MR. HORWITZ: I can give you their names if you want, but you got from 18 years on the department to less than a year. We have two officers who have not yet testified who I’ve disclosed to defense counsel are coming forward, as well, to say exactly the same things, one who is actually willing to be a 26(a)(2)(b) witness as to racial profiling, how these tickets are generated, the training the officers receive, and whatnot.

His name is Timothy Madison.

THE COURT: Is that the 26(a)(2) witness you talk about sometimes?

MR. HORWITZ: Yes. The need for him recently came forward based upon the 140 tickets.

THE COURT: What’s your 26(a)(2) witness going to say?

MR. HORWITZ: He will say — he will describe

• how it is that racial profiling
• how it is that the officers were trained at the department
• how it is that Bruketta was trained at the department.

THE COURT: Yeah.

MR. HORWITZ: How it is that tickets are generated.

THE COURT: Okay.

MR. HORWITZ: And how it is officers establish –

THE COURT: How is that opinion testimony so far?

MR. HORWITZ: Judge, if it isn’t 26(a)(2)(b) testimony, you ought to rule on that.

THE COURT: No. I’m just asking how it was. All you’ve done is tell me I saw this, I saw this, I saw this. How is that 26(a)(2)?

MR. HORWITZ: The reason why I believe it’s 26(a)(2) testimony is because the jury may not understand the training that occurred, how you can take all the training and match it with the correct way to –

THE COURT: All right. So, there comes a point in time where he’s going to offer opinions.

MR. HORWITZ: Yeah. Like you said to counsel, you know, what happens, that sort of thing.

THE COURT: Now, counsel, tell me again. What do you want to do besides what we’ve talked about so I can get this case to trial? What has to be done in your opinion?

MR. HORWITZ: All right. Going on, Dr. Meyer is a doctor that the defendants indicated they would facilitate in setting up his deposition. His deposition needs to be completed. Dr. Meyer.

MR. SOTOS: He testified, as well, but that one wasn’t finished, either.

THE COURT: Well, it was on May 24th, 2010. He testified for four hours.

MR. SOTOS: Right. On May 24th, Judge.

THE COURT: How many more hours do you need?

MR. HORWITZ: I probably need about an hour and a half.

THE COURT: What do you think?

MR. SOTOS: Honestly what I think, Judge, is I do not understand why there’s never been any need for him to explain why you would take somebody’s deposition in May, go through several different discovery closing deadlines that are coming, and then say six months later, “I want to finish his dep.” I mean, that’s not how — this case has been conducted in two separate discovery periods.

THE COURT: All right. Slow down. Slow down.

MR. SOTOS: You’re right.

THE COURT: All right. Now, number one, you still have the right to do any discovery that you want. Number two, things have popped up in this case. That’s why I’ve tried to talk to you before. Who is Dr. Meyer and in your opinion how does he fit into this case?

MR. SOTOS: Dr. Meyer is a doctor who examined plaintiff after he was in a shooting incident.

THE COURT: Psychologist?

MR. SOTOS: He shot somebody, and then he was –

THE COURT: Ph.D. doctor or medical?

MR. SOTOS: Yes.

THE COURT: Ph.D. doctor.

MR. SOTOS: Psychologist.

THE COURT: All right. So, did he counsel him or just examine him on behalf of the department?

MR. SOTOS: He examined him, I believe, first on behalf of the department and concluded that he shouldn’t be on the SWAT team because of the stress, things of that nature. I think that was primarily what he did. He said that because of what he was involved in –

THE COURT: All right. Why wasn’t four hours enough with this guy? Why aren’t you done?

MR. HORWITZ: Because the defendants took his deposition for about three and a half hours, and I was entitled — I was then — considering the four-hour time period you set and considering the four hours he had available for himself scheduling wise, I was only –

THE COURT: So, you only had 30 minutes with this guy?

MR. HORWITZ: Maybe half an — maybe 45 minutes, Judge. I don’t want to say on the record as an officer of the court exactly.

THE COURT: Does that sound right?

MR. SOTOS: I wasn’t there. I don’t remember. I just don’t know why it never came up in a half a year.

MR. HORWITZ: Judge, if you want me to respond to that, his associate –

THE COURT: Sure.

MR. HORWITZ: His associate said, “I will give you the dates for Dr. Meyer’s deposition.” The reason why –

THE COURT: Is Dr. Meyer under their control?

MR. HORWITZ: The reason why he is under their control is he considers himself somebody that works for the department. He’s received –

THE COURT: Still?

MR. HORWITZ: I don’t know about still. I’m telling you the conversation between his associate and me. First of all, he is a friend of Sheriff –

THE COURT: How much time do you want with Dr. Meyer?

MR. HORWITZ: Hour and a half.

THE COURT: I’ll give you an hour. What else do you need?

MR. HORWITZ: Do I need to say more next time?

THE COURT: No.

MR. HORWITZ: All right.

More tomorrow.