McHenry County Blog

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).

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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.

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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.)

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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).

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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.

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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]

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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.)

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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].

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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.

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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.

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

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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.

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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)

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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).

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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)

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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.

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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).

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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

This is the final installment of my notes from last Wednesday’s Rockford Federal court hearing before Judge Frederick Kapala.

At issue in the wrongful termination action brought by McHenry County Deputy Sheriff Zane Seipler against Sheriff Keith Nygren and various of his subordinates is whether the case should be dismissed because of the posting of court sealed disciplinary records of various deputies.

Previously, Zane testified that his wife Rose told him in August 2011 that she had posted the secret documents.

“The August, 2011, telephone conversation,” Judge Frederick Kapala referenced.

“Explain to me the conflict between you and your client and Mrs. Seipler.

“What prohibited you from asking her about that?”

Horwitz injected the following before Nelson could answer:

“Defendants had pulled out every single stop they could.

“We have uncovered a lot of information in this case that would be very embarrassing to the Sheriff’s Department.

“Based upon how horrible the press dealt with him because of the relationship of the Sheriff [Keith Nygren] and the Northwests Herald and based upon [what] Mr. Sotos was asking for my client to be sent to [jail, there] was concern for the reputation of Mrs. Seipler.”

“She wasn’t a party to the confidentiality order,” Judge Kapala noted.

“Indirect civil contempt” were the words out of Horwitz’ mouth.

He emphasized the “conflict between my client and the Sotos firm.”

Kapala commented again, but what I wrote down doesn’t make a lot of sense to me: “Her interests lie in that same one.”

“[They] might accuse her of aiding and abetting the violation of the court order

“Mr. Seipler has told me things against his self-interest and I trust him.”

Horwitz revealed that he had spent more time on this case than any other in his career–”over 1,000 hours.”

“There would be a conflict if she came right out and said, ‘I did it.’”

Horwitz then explained that he had asked lots of lawyers about “indirect contempt.” He said he had found no attorney had been able to point to anything relating to the subject either.

“No one knew the answer to that question back in August, 2011.

“That’s why John Nelson mentioned criminal sanctions.

“I haven’t yet researched that law because,frankly, she’s not my client.

“Sometimes I listen to my feeling–call it listening to your inner voice or whatever–and sit back and see what’s going on.

Horwitz said he didn’t want to be “creating a situation where I may be creating a divorce.”

After checking calendars, the Judge and the lawyers decided the next gathering would be August 27th

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Articles explaining the dueling sanctions motions:

• Sheriff Seeks Sanctions for Privacy Violations, While Violating Privacy Order or “Do As I Say, Not As I Do”
• Point, Counter Point – Sotos, Horwitz Both Request Sanctions – Part 1
• Point, Counter Point – Sotos, Horwitz Both Request Sanctions – Part 2
• Point, Counter Point – Sotos, Horwitz Both Request Sanctions – Part 3
• Point, Counter Point – Sotos, Horwitz Both Request Sanctions – Part 4
• Point, Counter Point – Sotos, Horwitz Both Request Sanctions – Part 5
• Point, Counter Point – Sotos, Horwitz Both Request Sanctions – Part 6

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

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

After Rose Seipler and her attorney Dennis Giovannini left the courtroom, Rose’s former attorney, John Nelson, continued his testimony in the sanctions part of her husband Zane Seipler’s case.

McHenry County Sheriff Keith Nygren’s attorneys James Sotos and Elizabeth Ekl are trying to get Federal Judge Frederick Kapala to dismiss Zane’s wrongful termination suit on the grounds that he disobeyed the court order to keep Sheriff’s Department disciplinary records secret.

Previously, Zane had testified that his wife Rose posted them.

The question to which Rose had not objected to former attorney John Nelson’s answering was “What did she tell you?”

“Mrs. Seipler came in and indicated there was an issue in her husband’s case which had to do with the posting of materials that have court restricts,” Nelson explained.

“Her husband was asking her to sign an affidavit to that effect.

“I said I didn’t want to know.

“I told the consequences [and] issues of knowledge of the court order.

“I discussed why it was anyone would do a foolish thing like that.

“At the end of the conversation, I advised her it would be best if she maintained a silence in the matter”

Zane Seipler’s attorney Blake Horwtiz asked why Nelson didn’t want to know whether Rose had posted the material.

Nelson replied  that there were “potential problems if she had told me she had done that.”

“Why not ask her to tell the truth?” Horwitz continued.

“My approach is more oriented toward the criminal aspect.  I know from personal experience civil lawyers are more intimatedly involved with their clients than criminal attorneys.”

Ekl objected to the second part of Nelson’s answer, pointing out that he had not been qualified as an expert.

Kapala overruled the objection.

“Why?” Horwitz  then asked.

“If it were to be that Mrs. Seipler would need my services in the future I did not want to be pinned in.

“What could happen to me and my family if I had done this?” Rose apparently had asked Nelson.

“I attempted to answer as well as I could the potentially worst case scenario.

“I also want[ed] to make sure should it come to pass that she undertook a path that would have legal repercussions by myself or with another attorney.

“She [todl me] I have this problem and this problem and this is the nature of the problem.

“I indicated very early on that I didn’t need to know.

“It seemed to me that she wanted good, sound legal advise.  She’s a professional, a registered nurse.

“Your average criminal client [would] have learned that’s the way it is done,” Nelson said, continuing to explain how he handle criminal cases.

“As the conversation unfolded, early on [I figured out what the issue was].

“She was interested in the potential ramifications.

“You don’t need to tell me that you did or did not do it,” Nelson remembered telling Rose.

“We’ll find the issues.

“If she were going to sign an affidavit I would be prepared to prepare it and it would certainly cost her extra money.

“The cornerstone of a state and Federal practice is that your client is presumed not guilty.  In the early stages of a criminal case, I don’t necessarily have to know the culpability.

“We live in a fluid world and things can change,” concluded Nelson’s answer.

“[So you said] ‘Stop right there.  Don’t tell me anymore,” Horwitz said.

“I would do that because I would like to research spousal immunity.

“The Fifth Amendment privilege is certainly more than ethics,” Nelson asked in response to a question from Horwitz I did not catch, but probably related to Horwitz having advised Rose about self-incrimination at her deposition in this case.

I did write down the follow-up inquiry:  “Is it appropriate to say, ‘Stop right there because there might be Fifth Amendment problems?”

“Yes,” Nelson said.

It appears that the Sotos team now got in some questions.

“Her husband wanted her to sign an affidavit?”

“The way I recall it she had been asked to sign an affidavit and she wanted to know the consequences,” Nelson replied.

“If not by her husband, then who?”

“I presume it was the husband or the husband’s interest.”

At this point Judge Kapala asked Horwitz how many more witnesses he had.

Horwitz came up with the following six:

• Dennis Giovannini
• Jim Sotos
• Blake Horwitz
• Rose Seipler
• Zane Seipler
• Scott Milliman

“Obviously we need another day,” the Judge concluded and then asked some questions of his own.

The final installment is tomorrow.

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

• Sheriff Seeks Sanctions for Privacy Violations, While Violating Privacy Order or “Do As I Say, Not As I Do”
• Point, Counter Point – Sotos, Horwitz Both Request Sanctions – Part 1
• Point, Counter Point – Sotos, Horwitz Both Request Sanctions – Part 2
• Point, Counter Point – Sotos, Horwitz Both Request Sanctions – Part 3
• Point, Counter Point – Sotos, Horwitz Both Request Sanctions – Part 4
• Point, Counter Point – Sotos, Horwitz Both Request Sanctions – Part 5
• Point, Counter Point – Sotos, Horwitz Both Request Sanctions – Part 6

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

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

The testimony of Rose Seipler attorney John Nelson moved next to his questioning by Keith Nygren attorney James Sotos’ associate Elizabeth Ekl.

She asked if it Zane Seipler attorney would have acted unethically, if he has represented both Zane and his wife in his wife’s deposition.

“I’m unsure,” Nelson replied. “It would be unethical if there were a known conflict.”

Nelson said his first representation was in October, 2010.

“[Would it have been] inappropriate for Mr. Horwitz to file a response in her behalf?

Judge Frederick Kapala’s ears picked up on the inference and he asked,

“Did he?”

“I believe he did,” Ekl replied.

“I have no interest,” Nelson said. “I have not interest in waiting hours to be called. I have no stake in this game.”

Ekl pointed to Document Exhibit 114, a filing on Rose Seipler’s behalf.

[At that point, I wrote, "Gotcha," on my legal paid.]

Nelson explained that the date of the Horwitz filing was “one or two days after I filed my motion. It should have been captioned, ‘Now comes Mr. Seipler,” not ‘Mrs. Seipler.’”

Ekl pointed out this was the second time Horwitz represented Mrs. Seipler [the first being the deposition].

“Anything unethical for him to serve you a subpoena for her deposition?” Ekl asked.

“No.”

My notes of who was asking questions at this point is a bit ambiguous, but I think the following identifications were put into the record by Ekl:

• October 17 memo filed by Nelson – Doc 103.
• October 18 memo filed by Horwitz – Doc 104.

Now, I have an “H” referring to Horwitz in the margin.

He asks about the facts in the two petitions.

“You incorporated very similar facts in your supplemental brief,” Nelson observed.

Horwitz points to page 45, line 6 [in the Rose Seipler deposition, I think], referring to Sotos associate Liz Barton mentioning the existence of a conflict.

Asking Nelson if he has a recollection after reading the reference elicited this comment from Judge Kapala:

“I don’t think he has any recollection of the deposition because he wasn’t there.”

One from the Sotos team objects suggesting, “Why not admit the deposition?”

Horwitz wasn’t ready to do that without reviewing the deposition with reference to what effect its being in the record might have on others parts of the case.

“He’s not going to testify to anything other than what he read in the deposition,” Judge Kapala observed.

At this point Horwitz went back to the hearsay objection that was upheld.  He referenced some “prior consistent statement” exception.

“I will do it up with her testimony,” he said.

“The defense is trying to allege collusion,” Horwitz said right before Sotos said, “They put this whole thing together after [the sanctions motion].”

“Did I ask you for information about what she (Rose Seipler) said?” Horwitz inquired.

“Yes,” Nelson replied.

“For my part I told you Mrs. Seipler wouldn’t be speaking to anyone.”

At this point, Nelson apparently realized he had misspoken on something, but my notes don’t indicate what.

He did, however, come up with two classics:

• “It was probably age and infirmity.
• “It’s much more difficult to be a witness than standing out there.”

At this point Rose Seipler and her current attorney Dennis Giovannnini re-entered the courtroom.

“Did it come time for Mrs. Seipler to have a conversation?”

The date referenced was October 26, 2011.

“What did she tell you?” Horwitz asked.

“No objection,” Giovannnini said.

“Step out, please,” Judge Kapala said.

More tomorrow.

= = = =
Articles explaining the dueling sanctions motions:

• Sheriff Seeks Sanctions for Privacy Violations, While Violating Privacy Order or “Do As I Say, Not As I Do”
• Point, Counter Point – Sotos, Horwitz Both Request Sanctions – Part 1
• Point, Counter Point – Sotos, Horwitz Both Request Sanctions – Part 2
• Point, Counter Point – Sotos, Horwitz Both Request Sanctions – Part 3
• Point, Counter Point – Sotos, Horwitz Both Request Sanctions – Part 4
• Point, Counter Point – Sotos, Horwitz Both Request Sanctions – Part 5
• Point, Counter Point – Sotos, Horwitz Both Request Sanctions – Part 6

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

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

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

The subject moved from conflict of interest to spousal immunity.

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

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

He there is “a certain immunity from disclosure.”

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

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

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

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

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

“They don’t understand legal matt4ers.

“They trust you in matters of legal guidance.”

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

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

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

“No,” was Nelson’s immediate reply.

Horwitz asked when he and Nelson had met.

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

“Did she pay you?” Horwitz asked.

“She paid that day.”

“First time, too?”

“Yes. Retainer and paid a final bill.”

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

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

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

More tomorrow.

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

• Sheriff Seeks Sanctions for Privacy Violations, While Violating Privacy Order or “Do As I Say, Not As I Do”
• Point, Counter Point – Sotos, Horwitz Both Request Sanctions – Part 1
• Point, Counter Point – Sotos, Horwitz Both Request Sanctions – Part 2
• Point, Counter Point – Sotos, Horwitz Both Request Sanctions – Part 3
• Point, Counter Point – Sotos, Horwitz Both Request Sanctions – Part 4
• Point, Counter Point – Sotos, Horwitz Both Request Sanctions – Part 5
• Point, Counter Point – Sotos, Horwitz Both Request Sanctions – Part 6

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

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

This is Part 2 of Rockford attorney John Nelson’s testimony in the Zane Seipler wrongful termination case against Sheriff Keith Nygren, et al.

It is from the santions motion part of the trial before Judge Frederick Kapala.

“Your question involves the essence for her [Rose Seipler's] visiting me for the second time,” Nelson replied.

“There were consequences to signing an affidavit for use in her husband’s case with regard to posting privileged materials in this case on the internet where there was some court restriction,” Nelson testified.

“Certainly there was not only tension, but there was a legal conflict [and] marital [conflict].

“The legal conflict was Mrs. Seipler needed legal representation to represent her interests.”

“Did you know of the allegations of perjury [in the James Sotos motion for sanctions (see below)]?” Horwitz asked.

“I did not know that,” Nelson relied.

“If I had gone and spoken to Mrs. Seipler and asked her everything that happened and she developed that and I had presented that [information] to the court [as Sotos had argued earlier in the day that Horwitz should have]?”

“The ethical problems always come after the fact,” Nelson commented.

“[You would have3] placed her in legal jeopardy.”

“What would you tell her?” Horwitz asked.

“I would have told her you shouldn’t have done that.  We would be a position to attack any [use of information in any further proceeding.  That would be the danger," was Nelson's reply.

An objection was made with regard to relevancy.

Judge Kapala dismissed the objection:

"The question has been raised why he didn't investigate this [whether Rose put the secret documents on the internet].  I think he’s trying to explain why he didn’t do it.

“I will allow the witness to continue to testify.”

Nelson continued: “I certainly would have written a letter to the ARDC [Attorney's Registration and Disciplinary Commission].

“You and I might also have had a talk.”

Another objection interrupted the proceedings to which Judge Kapala asked that “a firmer context” be laid out.

And another objection to Mrs. Seipler, a future witness, being in the courtroom was sustained:

“I agree she shouldn’t be here while you [lay out] your theory of the case.”

“I understand the issue,” Horwitz said.

Rose and her current attorney Dennis Giovannnini then left the room.

The objected to question was then read by the court reporter. I caught only a snippet about “Did you put this up on the internet?” [From the context below, I believe Horwitz was quoting what he heard Zane say to his wife over the phone during the two's heated August conversation.]

Horwitz then laid the following out hypothetical situation:

Blake Horwitz

“A couple of months before Mrs. Seipler came to you for the second time (in August), she overhears this and says, ‘I did it. I put the stuff up over the internet.’”She speaks to me and says she’ll testify and wants to get a lawyer. She’s upset, emotional.

“Then a motion for sanctions is filed with [asking for] dismissal and referral to the Federal prosecutor [for criminal charges].

“Should I have inquired, ‘What happened?’”

Nelson’s reply:

“No.

“Anytime you have the possibility of Federal criminal exposure all you can do is suggest counsel.

“She needed to be advised by an attorney.”

“Did I have her duty [best interest] at heart?” Horwitz continued.

“No, you could not do justice for your client by having any interest in her interests.”

An objection was made to the hypothetical.

“These are things you can bring up on cross,” Judge Kapala replied.

“You certainly had the obligation to tell Ms. Seipler to get an attorney, [to] tell her you were not going to talk to her, to get a lawyer,” Nelson continued.

“I think the rules encompass that lawyers do the right thing.

“It would be improper to take advantage to advance your own case,” Nelson said.

Horwitz moved onto the subject of spousal immunity.

More tomorrow.

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

• Sheriff Seeks Sanctions for Privacy Violations, While Violating Privacy Order or “Do As I Say, Not As I Do”
• Point, Counter Point – Sotos, Horwitz Both Request Sanctions – Part 1
• Point, Counter Point – Sotos, Horwitz Both Request Sanctions – Part 2
• Point, Counter Point – Sotos, Horwitz Both Request Sanctions – Part 3
• Point, Counter Point – Sotos, Horwitz Both Request Sanctions – Part 4
• Point, Counter Point – Sotos, Horwitz Both Request Sanctions – Part 5
• Point, Counter Point – Sotos, Horwitz Both Request Sanctions – Part 6

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

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

Sheriff Keith Nygren, et al’s attorney James Sotos filed motions for sanctions, including dismissal of Zane Seipler’s wrongful termination suit because documents that had been sealed were posted to a blog from his home’s computer.

After Sotos completed his side of the case Tuesday, Seipler attorney Blake Horwitz put attorney John Nelson on the stand.

“I can’t answer any questions unless there is a waiver,” Nelson said in reply to Horwitz’ question about whether he has represented Rose Seipler.

A court filing showed Nelson had represented Zane’s wife Rose in a marital immunity motion.

It turns out she turned to him again when after the sanctions motions (see below) were filed.

In April, Rose was identified as the person who posted the confidential documents.

The first question was whether Rose would waive her attorney-client privilege.  She and her current attorney, Dennis Giovannini.

The privilege was waived and Rose left the courtroom.

Because Nelson’s testimony shows how a veteran defense attorney approaches criminal cases, I shall attempt detailed explanation of the questioning.

Previously, it had been pointed out by Sotos that Horwitz had represented Rose in a deposition.  Horwitz didn’t remember being at the deposition and it turns out he was not there in person, but did participation over the phone.

One of the key points that Sotos and his assistant Elizabeth Ekl made was that Horwitz had represented both Mr. and Mrs. Seipler.

Horwitz used Nelson to try to show Judge Frederick Kapala that what the did was proper.

In the deposition, Horwitz advised Rose to assert her Fifth Amendment privilege not to testify.

Nelson thought that appropriate.

During this line of questioning, which targeted the first time Rose went to Nelson, Sotos associate Elizabeth Ekl objected to Nelson’s being considered an “expert” on legal ethical questions.

“He’s a licensed attorney,” Judge Kapala pointed out, overruling the objection.  “What more does he need?”

“With regard to [a marital dispute], would it have been appropriate for me to represent Mr. and Mrs. Seipler?” Horwitz then asked.

“No, I don’t believe so,” Nelson replied, “because there’s an inherent conflict of interest.

“You could at your own peril.  By engaging in that type of conduct…[it] could result in problems for your client and then result in problems for you.

“It just leads to putting a barrier b3tween you and your client.?

The second call from Rose to Nelson was the next topic.

Horwitz asked if it would have been appropriate for him to represent both spouses in relationship to the blog postings of confidential material on the internet.

“If she said, ‘I have a lawyer,’ I think [Horwitz] would have been on dangerous ground trying to talk to her.  [An attorney] can’t talk to a represented client without her attorney’s consent,” Nelson said.

The question of the timing of the second representation came up.

October 26, 2011, was the date Nelson provided.

Previously, Soto has hammered Horwitz for not informing the Court of his suspicion that Rose had posted the documents.  He intimated that the two had cooked up the story that she had done it, arguing that the delay in Rose’s obtaining an attorney after the heated mid-August arguments between Zane and his wife was evidence of the falsity of the assertion that Zane had nothing to do with the posting.

At a previous hearing, Zane had pointed out that the family’s financial status was precarious with his not being back on the Sheriff’s Department payroll as Sheriff Nygren strung out his firing loss as long as possible (including a futile appeal to the Illinois Supreme Court).

More questions on conflict problems had Horwitz represented Rose as well as Zane.

“I would [suspect] a cautious, competent and good lawyer wouldn’t have done that,” Nelson opined.  “It could place you in an ethical conflict.”

Asked a similar question, Nelson replied, “Absolutely there was a conflict between Ms. Seipler’s and her husband’s interests.  It had to do with the potential of litigating the husband’s case effectively and the potential for Mrs. Seipler to have legal difficulties.”

Moving onto the second visit, Horwitz asked if Nelson needed to ask for a waiver.

= = = = =

More tomorrow.

I spent the day in Rockford’s new Federal Courthouse.

Good looking building, completed by the General Services Administration only about a year and a half behind schedule with the last repair being the installation of a new air conditioner on the new roof, according to the guards the last time around.

The big problem with the facility is there is no place for court parking.

The next door garage is being repaired. So, if you don’t have a permit, forget it.

One used to be able to park there for the day for well under $10.

There are all sorts of two-hour parking spaces.

So, what do you do when you’re in the courtroom of a conscientious Judge like Frederick Kapala?

He doesn’t give attorneys and spectators a break every two hours to go move cars from one space to another space.

He keeps right on working.

After the hearing, I was told by Rockford attorney John Nelson that the parking fine is $20.

He pointed out that by Chicago standards that might not sound outrageous, but it is considered so in Rockford.

So what does the title of this article mean?

There were two witnesses Tuesday in Deputy Sheriff Zane Seipler’s wrongful termination suit.

The first was Seipler attorney Blake Horwitz.

He was on the stand three-fourths of the day being grilled by James Sotos and Horwitz associate Dan Dorfman.

The second was Nelson, who has twice acted as Rose Seipler’s attorney in this case.

The testimony of those two got us past 5PM, when the parking spaces are not limited to two hour shifts.

I managed to get through the day without a parking ticket.

Nelson had been waiting twelve hours to testify as questioning of Zane Seipler dragged on and on and on and on.

He finally got his chance today, but there are six more witnesses scheduled by Blake Horwitz for the next hearing at the end of August:

1. Scott Milliman (who has also been waiting outside the courtroom for five court days)
2. James Sotos (Sheriff Keith Nygren’s Department’s chief defense attorney)
3. Blake Horwitz (Zane Seipler’s attorney)
4. Zane Seipler
5. Rose Seipler
6. Dennis Giovanni (Rose Seipler’s current attorney)

If you are intrigued with attorney-client privilege, legal ethics, conflict of interest, timelines of what an attorney knew when, computer addresses of blogs, etc., this courtroom was for you.

After Nelson finished testifying, he told me that by being in Rockford in the morning I had missed Judge Thomas Meyer’s ordering all the attorneys in the Grafton Township Assessor v. Supervisor Linda Moore case be paid.

Those will include Nelson, Mike Poper and Ancel Glink for the Trustees, the latter at the suggestion of Judge Meyer.

Tuesday Sheriff Deputy Zane Seipler’s wrongful termination case is back in Rockford Federal Court.

Seipler’s wife Rose is expected to testify about her posting information about disciplinary records on the internet.

But, she has been cooling her heels outside the courtroom waiting to do that for 2-3 days already and the attorneys seem to fill the time with endless questions, primarily of her husband.

Also waiting to testify are

• Scott Milliman, the Deputy fired by McHenry County Sheriff Keith Nygren after Nygren read his accusatory deposition in this Seipler case, and
• John Nelson, attorney for Mrs. Seipler for a time in this case.

Milliman’s deposition was leaked to the Northwest Herald, but no penalty is being considered for that indiscretion.

Meanwhile, the legal bills continue to mount, although not for McHenry County.

The County has an agreement with a risk management agency that limited legal fees to $100,000 for the year Seipler filed his case.

Nevertheless, the attorney’s representing the Sheriff’s Department continue to be paid well.

Through June, the fees paid are as follows:

• James G. Sotos – $815,571.13
• Ottosen, Britz, Kelly, Cooper – $39,439.87
• Caldwell, Berner and Caldwell – $25,901.10

The grand total before today’s billings?

$880,911.

The Sotos bills for June, when there was a day in court, have not been tallied.

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.