McHenry County Blog

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

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

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

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

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

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

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

He was fired on August 17, 2011.

To read the entire decision, click here.

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Article one is here.

Article two is here.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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Part one is here.

Article two is here.

Article three is here.

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

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

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

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

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

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

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

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

I. LEGAL STANDARDS

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

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

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

II. FACTUAL FINDINGS

A. Disciplinary Files

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

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

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

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

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

B. Defendants’ First Motion for Sanctions

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

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

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

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

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

C. Computer Evidence

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

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

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

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

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

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

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

D. Defendants’ Second Motion for Sanctions

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

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

Critically, however, plaintiff made the following statements:

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

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

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

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

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

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

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

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

Mr. Horwitz: Yes.

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

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

Id. at 13-14.

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

E. Plaintiff’s Explanation at the Evidentiary Hearing

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

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

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

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

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

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

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

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

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

III. LEGAL CONCLUSIONS

A. Sanctions under Rule 37(b)

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

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

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

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

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

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

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

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

B. Sanctions under Inherent Authority

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

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

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

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

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

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

= = = = =

Footnotes

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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.

In Zane Seipler’s Federal wrongful termination suit, Sheriff Keith Nygren’s attorney, James Sotos, is attempting to gain dismissal because of the posting of confidential case documents from Zane’s home computer.

His reasoning is that Seipler deliberately released documents (see them here) that were labeled “Confidential.”

The smoking gun from Sotos’s viewpoint was information subpoenaed from Google that the computer from which Zane Seipler’s self-identified blog, McHenry County Sheriff’s Department Exposed, was the same one used for the Shadow Deputy blog and one with almost the same title as Zane’s, The Real McHenry County Sheriff’s Office Exposed.

Seipler vehemently denied that he had posted to confidential documents.

Stated several times in several different ways, the message was the same:

“All I know is that I didn’t give anything out…I did not give out the documents to either web site.”

The story that emerged Tuesday in Rockford was that, unbeknownst to Seipler, his wife Rose, put up the other two blogs shortly after Kurt Milliman, former Deputy Sheriff Scott Milliman’s twin brother was shot to death.

Zane’s attorney asked his reaction to Kurt Milliman’s murder.

“I was afraid for a lot of people’s lives, mine included.”

Although Zane had told his wife not to involved herself in the case, she apparently did so in an attempt to protect her family.

Zane did not discover his wife’s involvement until after a second week of August, 2011, phone discussion with his attorney Blake Horwitz, which was overheard by Rose.

“It was heated and about this stuff and he’s asking me how this is possible and I’m saying I don’t know,” Zane testified.

“She approached me about it after hearing me and my lawyer arguing over the phone about how it got on the internet,” Zane testified.

“She was crying. She told me she had done it.”

“Why the hell did you do that?” Zane reported asking his wife.

“That the case could be dismissed?” Sotos asked.

“That’s something she could understand,” Zane replied.

He later explained that Rose was “extremely remorseful.”

Zane pointed out that he had previously “told her several times over the years not to comment on the newspaper or the blogs about the case,” but she did so anyway.

“That was the first time you talked to anyone but your lawyer?” Sotos asked.

“Yeah,” Zane replied.

He explained why he thought his wife has put up the secret information on the internet.

“She wanted to show what these people were all about…We’ve spent years being concerned about somebody’s getting killed…when you’ve heard that Sheriff Nygren said, ‘Kill Dave Bachmann,’ pushing Judge [Conrad] Floeter under the train.”

Rose was apparently following her husband’s example.

His wife told him, “You told me the only reason we’re safe is that you’re out there saying stuff,” referring to at least his blog, which he took down after the June sanctions motion was filed by Sotos.

“If I am known by people and they know there’s a fight going on, everyone will know where to look [if something happens to me or my family],” Zane explained.

Later Zane elaborated on his strategy:

“I can’t just disappear without [people knowing where to look].  It’s not the best protection in the world, but it’s all we’ve got.”

Sotos wanted to know when he had told Rose that.

“A long time ago.”

Coming back again, Sotos got this reply from Zane:

“You’ve got to remember she was crying. We were fighting.

“She didn’t want me to have any part of it. She didn’t want me to be involved.”

During Zane’s Republican 2010 primary campaign for Sheriff against Nygren [disclosure--I supported Zane in my precinct],

“He told me when I went to the Northwest Herald in the lobby [before the interview], ‘Go get good life insurance.’”

Sotos pressed on why Zane had not investigated the appearance of the secret documents after they appeared on the internet.

“Just because you guys write it (in the sanctions motion) doesn’t make it legit,” Zane replied.

As Sotos tried to get Zane to explain why he didn’t probe who had had posted the confidential personnel documents on the internet, Zane pretty much repeated his former answer,

“In all honestly I did not know it did not come from you guys. I knew it wasn’t me.”

Sotos pressed further about Zane’s two-month delay in trying to find out who had posted the confidential documents.

“I also thought it was a Greg Pyle thing with his super computer [talents].”

Whether Zane had told his attorney Blake Horwitz took up a lot of time.

“I had not told him” was but one way the question was answered by Zane.  And, “I never specifically told him that Rose did it.”

“I told my lawyer, ‘I think I need to get my wife an attorney.’

“My attorney specifically told me not to tell [him] anymore.”

Asked by his attorney, “Why didn’t you tell me?” Zane replied, “Because I do understand there’s a privilege (between wife and husband) and, secondly, I was scared for her.”

Zane related having been “accused of felonies before by the Sheriff’s Department and this attorney [referring to Sotos].  I figured this would be a criminal issue.”

And that “Rose’s interests were not a concern of yours.  As an officer of the court you were going to have to do your job.”

Horwitz could and did speak for himself.

He knew that there were only three adults regularly in the home, Zane, Rose and babysitter Eileen Marhoefer.

“Did you think I understood, my having a brain, I couldn’t figure it out?” Horwitz asserted in a rhetorical question.

There were extensive discussions about the extent of attorney-client privilege during the 9:30 to 5:15 hearing with the Judge Frederick Kapala explaining that the privilege was the client’s and could be waive in part or in whole.

Sotos used comments on Zane’s official blog to suggest that Zane was threatening to release the confidential court records.

Prime focus was on a December 2, 2010, paragraph posted after the Thanksgiving Week deposition of Deputy Sheriff Kurt Milliman:

“If the time comes that I feel my life, my family’s lives or any one’s life is in danger because of Nygren, I will send what I have directly to the Media. (And I’m not talking about those hack newspapers here in McHenry County.)”

Another of Zane’s blog posts elicited this explanation:

“I had just heard [Scott] Milliman’s deposition the read the Northwest Herald article about it when I posted this. I was very afraid for my life. I had been down to Mexico…We sat there [in Milliman's deposition] discussing murder, drugs, illegal immigrants…the kind of things people get killed for.”

Sotos asked if there were any other reason “to think your life might be in danger.”

“Yes,” Zane replied. “I have a Special Prosecutor going on with regard to [Nygren's using his office for] for campaigning.”

Milliman’s deposition had a major impact on Zane.   While discussing the people he had been asked to kill, “he [Milliman] started crying a couple of times,” Zane said.

“When he testified, he was terrified.  His brother gets killed six months later.”

Pretty much the same litany of alleged crimes by Sheriff Nygren, as stated by former Deputy Scott Milliman in his deposition, came up Tuesday as came up in the last hearing before McHenry County Associate Judge Thomas Meyer in the Special Prosecutor case.

Shortly after the deposition, Scott Milliman was put on administrative leave for not telling the truth, among other stated reasons.  Later he was fired for violating a “truthfulness” requirement of the Departmental General Orders.

The leak of the Scott Milliman confidential deposition to the Northwest Herald came up for discussion, as did a confidential Woodstock Police report that was distributed in the Sheriff’s Department prior to the February, 2010, GOP primary election.

The Pavlin case was revealed as the topic of several Zane blog posts which hinted at information that he knew that his readers did not.  Zane revealed he gave Grand Jury testimony and saw the deputies involved write their reports together.

Judge Kapala tried the Pavlin case and reached this decision.

Rose’s attorney Dennis Giovannini was in the courtroom during part of the session.

Kurt Milliman’s murder took place down the road from Centegra’s Woodstock Hospital and the Sheriff’s Department investigation found no involvement beyond the man charged with shooting him and the man’s wife, whom, as the official story goes, had offered oral sex in a Craig’s List ad that Kurt Milliman had answered.

There was some heretofore unreported information about contacts Zane received from policemen in other municipalities seeking advice on how to publicize racial profiling and civil rights violations as Zane had.

Those calls came from policemen in

• Berwyn
• Blue Island
• Carbondale
• Metropolis

Also appearing in court today was McHenry County Sheriff’s Sergeant Greg Pyle.

Prior to his brief appearance, his attorney William McCarthy argued that notice had been inadequate, pointing out that personal service had not been made until he appeared in court on his McHenry County criminal charges last Friday.

Although McCarthy pointed out that Pyle would invoke his Fifth Amendment right against the possibility of self-incrimination, Judge Kapala ruled that the letter mailed to his parents’ home, plus the personal service was adequate.

Pyle asserted his right against potential self-incrimination on all questions, although, the Judge did allow him to explain his service in the Sheriff’s Department

Questions from Horwitz that went unanswered included his computer training and expertise.

Cooling their heels outside the courtroom all day were future witnesses Rose Seipler, Scott Milliman and John Nelson.

McHenry County Sheriff’s Department Affirmative Action Officer, Donald Leist, was in the courtroom.

The next hearing is at 9:30 on May 23th.
= = = = =

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

If you are not following the story about Keith Nygren from David Bachmann’s (the 2008 Democratic Party’s 2008 candidate for McHenry County Coroner) point of view, you might find it of interest.

With the decision on naming a Special Prosecutor for Sheriff Nygren due Monday, the allegations being laid out by Bachmann, which seem mainly based on a 2010 election night conversation with Deputy Scott Milliman, are far more serious than what Associate Judge Thomas Meyer is considering.

Bachmann repeats what he was told of the meeting of Nygren and Milliman at Vaughan’s Restaurant at the Woodstock corner of Route 47 and old Route 14.

He then tells of the meeting afterward with FBI agents at the K-Mart parking lot and reprises the probably concurrent encounter of Nygren with then-Green Party Sheriff’s candidate Gus Philpott in the Jewel parking lot.

On his way home, Nygren GOP primary opponent Zane Seipler sees Milliman’s car in the parking lot and pulls in to talk to him.

You really need to read the original, but let me excerpt this paragraph:

“According to Milliman, a very loud argument then ensued between himself and the agents! This was when Milliman claims things between he and the FBI began going south very quickly. Seemingly, a ‘trust’ fell apart right there in an FBI vehicle.”

Have to include this subsequent paragraph, too. It brought a “Wow!” to my brain when I read it:

“Upon reflection on former deputy Milliman’s statement that when Nygren arrived at the Vaughn’s Restaurant appearing very disheveled, sweaty and extremely nervous, it is my belief that it is highly possible that an FBI agent tipped off Nygren.”

More to come on Monday, Bachmann writes.

David Bachmann’s blog, which he calls “Dirty Harry vs. Dirty Keith,” is back on your computer screen, if you click here.

Bachmann seems intent upon telling the story about what now-fired Deputy Scott Milliman said in his sworn deposition in recently reinstated Deputy Sheriff Zane Seipler’s wrongful termination case against McHenry County Sheriff Keith Nygren.

“Bag man” appears on the screen.  And, search and you find a sizable amount mentioned.

He says the Northwest Herald, which somehow got a copy of the supposedly secret deposition of Scott Milliman in the Federal case, “cherry picked” what the paper put in its article.  Bachmann uses the word “half-truth.”

His recent pieces have been revealing more of the contents of the bowl of fruit.

He cites a Rockford-based Federal Judge’s participation in Woodstock’s Mexican Sister City program.

Bachmann reveals he has working for the Department of Justice in Mexico “during the very time McHenry County had its officers and elected officials in Mexico.”

Bank documents are mentioned, but not revealed, although the name of one local bank and another that whose assets were seized by the FDIC can be found in what Bachmann wrote.  A third Elgin bank remains unnamed.

Something about Genoa seems to be forthcoming.

He shows photos of an FBI wire supposed worn by Milliman in an investigation into Nygren.

Now-suspended computer expert Deputy Greg Pyle’s name comes up.

Bachmann does all of this from a “first person” perspective.

The series of articles are headed,

Re-Opening Cases!

Somehow, I’ll be a lot of people are copying and saving the most recent posts on “Dirty Keith vs. Dirty Harry.”

That’s because one can never be sure when Bachmann will take his blog down.

And Bachmann has written,

“When we post the entire story and name names, you will not only be stunned by what Deputy Milliman has claimed, you will also have some information nobody has ever heard before. “

The game of hiding information from the public that Sheriff Keith Nygren is playing with regard to his firing of Deputy Scott Milliman after he gave a deposition in Deputy Zane Seipler’s wrong termination suit has had a couple of holes poked into it.

Here’s the original response:

Very informative, aren’t they?

Below is what the Sheriff’s Department released today:

Let’s take a closer look at what has not been blocked out:

Here is a key sentence:

“During your testimony, you knowingly provided numerous statements about your personal knowledge and alleged criminal acts  by Sheriff Keith Nygren over a period of several years.  The allegations you made in your deposition regarding the conduct of Sheriff Nygren were false.  You provided additional testimony that indicated you are in direct violation of multiple general orders, included but not limited to

• Conduct unbecoming to a Sheriff’s employee
• Conduct toward superiors, subordinates, and associates
• Reporting violations of laws, ordinances, rules, or orders
• Criticism
• Insubordination or disrespect toward a supervisory member on or off duty
• Neglect or inattention to duty
• Responsibility to take action
• Truthfulness
• Extra duty and secondary employment

The second page tells of the opportunities that Milliman had to attend tow per-disciplinary meetings.  In the first, he “did not provide any information or evidence to back up the allegations you made.”

Milliman did not attend the second meeting, according to the letter, on the advice of his attorney.

The case is about to go to an arbitration hearing, pursuant to the Fraternal Order of Police union contract.