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.

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

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

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

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

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

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

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

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

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

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

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

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Article one is here.

Article two is here.

Article three is here.

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.

Over a year ago, Sheriff’s Deputy Bob Schlenkert won the right to return to work over the objections of McHenry County Sheriff Keith Nygran.

Today, the Northwest Herald reports a settlement has been reached.

I decided to see whether the money owed has been paid.

Guess what?

It hasn’t.

McHenry County Auditor Pam Palmer, in response to a Freedom of Information request, writes,

“In response to your FOIA request for copies of any documents submitted to my office for a court settlement payment to Sheriff’s Deputy Bob Schlenkert, I am informing you that nothing has been submitted through the Accounts Payable process performed in the Auditor’s Office.”

Where’s the holdup?

Since the agreement is apparently with the Sheriff’s Department, I would guess an official sign off has not yet been obtained.

No sign off, no settlement, it would seem to me.

Where’s the holdup?

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

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

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

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

Judge Mahoney immediately asked the contents of the subpoena.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Philpott was given an opportunity to talk at this point.

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

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

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

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

Yesterday, McHenry County Blog showed you the legal expenses resulting from the dismissal of Sheriff’s Deputy Zane Seipler. That case has been through arbitration, which Seipler won, circuit court, which Seipler won, and is now in the 2nd Appellate Court.

It is my understanding that if Sheriff Keith Nygren loses at that level, Seipler’s legal fess will have to be paid by county taxpayers.

Aside from that suit, however, there is a much more expensive one going on in Federal Court in Rockford.

There Sheriff Nygren is being defended by attorney James Sotos. While it is a wrongful termination suit, most of the case has revolved around whether the Sheriff’s Department was involved in racial profiling.

In any event, the over $400,000 in bills paid so far follow.

County government seems to be in “free money” land now.  As the accompanying email points out,

“Please note in the case of Seipler v Sherifff’s Dept & County et. al the self insured retention (deduction) has been paid by the County.  ClaimOne is the third party administrator for Illinois Counties Risk Management Trust (insurer) and is responsible for cost above the retention level.”

That deductible is $100,000.

This case, of course, has not yet gone to trial.

It is still in the discovery stage.

Two days before Christmas McHenry County Sheriff’s Department Deputy Scott Milliman was placed on administrative leave, according to a Freedom of Information request reply received by McHenry County Blog today.

December 23rd was the same day that a December 15th Federal Court hearing transcript became available.

A deposition in which Milliman gave sworn testimony was the primary topic of that day in court.

In my request for information, I asked for “the names of any employees placed on administrative leave so far during the month of December.  Please include the date the leave started and its reason.”

The following is contained within the reply from FOI Officer Jan Weech in answer to my asking the reason for administration:

“If a document exists stating the reason for the change of status it would be in an active administrative investigation file which is exempt under 5 ILCS 140/7 (1) (d) (ii) interfere with active administrative enforcement proceedings conducted by the public body that is the recipient of this request.”

If you look in Part 3 of the transcript, you will see that Sheriff Keith Nygren was given Deputy Milliman’s deposition prior to the December 15th hearing.

Links to the articles containing the entire 10,000+ word transcript from December 15th can be found here.

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

Other articles that might be of interest:

• Rockford McHenry County Sheriff’s Department Revelations Move to Woodstock Courthouse in Call for Special Prosecutor
• Where’s the Beef?

Last Friday’s court interchange in Federal Magistrate P. Michael Mahoney’s Rockford courtroom concludes today with talk of a protective order.

This is the last installment of what happened last Friday in Zane Seipler’s wrongful termination lawsuit.

“We believe he (Sgt. Greg Pyle) has spoken to violations of a protective order and dissemination,” Blake Horwitz, Zane Seipler’s attorney said.

Horwitz laid out other lines of questioning for Pyle:

“What facts he knows of that, my client(‘s being) a liar, (the) stigmatizing of my client. Did he speak to the other defendants in the case?”

The question of who wrote the derogatory blogs about Seipler must also have come up, although I didn’t jot it down.

“Mr. Seipler knows who…,” the attorney for the three deputies seeking not to be deposed in the wrongful termination case interjected.

“How does he know?” the Magistrate inquired.

“You could put any name on the blog.

“He could put Rumpelstiltskin.”

“It’s Sir Pumpkin,” the attorney for the three deputies said.

“He’s entitled to ask those (questions),” Mahoney said.  “I think you need two hours.”

Horwitz asked for a “date certain to produce.”

Apparently the attorney for the deputies in the Pavlin case has a motion for summary dismissal of that case in January.

Magistrate Mahoney suggested coming back December 15th.

Horwitz asked for fees, but Mahoney indicated this was not the right time.

James Sotos, the lawyer defending county interests against Seipler’s wrongful termination charge, then brought up the topic of “fifty-five documents, all stamped confidential.”

The interchange heated up.

“I did ask you to withdraw it three times and you said, ‘No,’” Horwitz said, referring to some domestic complaint. “He will be a Sheriff’s Deputy (again).”

Going back to the fifty-five documents, Sotos asked, “Shouldn’t these documents be withdrawn?

“The problem is that the material is in the court file,” Mahoney observed.

Referring to the two different subjects the two attorneys were addressing, the Magistrate said,

“If it is a confidential document, it becomes a different (situation). If you believe it should be a confidential document, then it should be placed under seal.”

Out in the hall after the hearing Sotos and Horwitz agreed to look at and follow the 7th Appellate Court Circuit rules on the matter of the documents confidentiality.

Part 1 and Part 2 of my day in Magistrate P. Michael Mahoney’s Rockford courtroom last Friday have run previously.

The attorney representing three deputies involved in the Pavlin court case sought to have his clients exempted from deposition questioning by Blake Horowitz, the attorney for former McHenry County Deputy Sheriff Zane Seipler in his wrongful termination suit.

Magistrate Mahoney seemed to be leaning toward allowing the three to be question as we left the last installment.

The deputies attorney in the Pavlin case makes his rebuttal by saying, “He said the Sheriff investigated and they were exonerated.

“They’ve already said under oath they didn’t involve in racial profiling.”

“There are about 1,000 documents,” Horwitz pointed out. The number “700” also came up.

“My request is five hours, your’s four hours,” the Magistrate said.

“That would be something,” Mahoney observed before saying, “I’ll give you two hours.”

The three deputies’ attorney mentioned that he represented Sergeant Pyle in the Pavlin case and that he had already been deposed.

Discussion then moved onto blogs.

“Did this guy create this blog that said, ‘F you?’” asked Mahoney.

“The blog is relevant to show the mindset. Is the Sergeant either one of these two?”

James Sotos, representing McHenry County’s and McHenry County Sheriff Keith Nygren’s interests, stepped in.

“No, not to my knowledge.”

“I’ve asked in interrogatory (written questions to a potential witness) and haven’t gotten an answer,” Horwitz said.

“Was the deposition set?” the Magistrate asked.

“Yes, then, a protection order,” replied Horwitz.

I missed a bit because people were talking too fast or their voices were too low.

“Why would I care about that?” was asked by Mahoney, I think.

“Why (is it) relevant as part of the conspiracy?” Mahoney added.

“Employees are stigmatized,” Horwitz said. “You can’t stigmatize a man more than the words on this blog.”

“They hate each other,” Sotos offered without admitting who wrote the blog.

“”If he is a witness in the case, it is relevant,” the Magistrate concluded.

“It doesn’t matter if he is prejudiced.”

The Pavlin case attorney then said, “I think Zane Seipler is a perjurer and a liar and shouldn’t be a Sheriff’s Deputy.” I suppose he was quoting one of his clients.

“Tell me how this fits into the law suit other than…they haven’t said to you,” Mahoney said.

“Pyle had said my client’s allegations are false,” Horwitz replied.

More tomorrow.

Yesterday, I related the first part of what I saw in Federal Magistrate P. Michael Mahoney’s Rockford courtroom last Friday.

We ended with the attorney for Sheriff’s Deputies Greg Pyle, Chris Jones and Jeremy Bruketta trying to keep his clients, all being sued by the Pavlins, from being deposed in Zane Seipler’s wrongful termination suit.

The Pavlin case attorney for the deputies claimed the three were not decision-makers.

“We didn’t cherry pick,” Seipler attorney Blake Horwitz said.

“The fact that these may have discriminated and covered them up,” said the Magistrate. “How (is that) relevant?” he asked Horwitz.

I got the number “72,” but not the context, then, “generated false documents to cover up racial profiling. It goes on and on.

“So, you’re going to use these officers to show a pattern of racial profiling?” Mahoney asked.

“(The) defendant(s?) investigated,” was the reply I heard.

“Who?”

I caught “Miller, Seith and…” didn’t get the third name as Horowitz answered the question.

Seith “generated the report and gave it to the head guy (who?) says (he has) no idea if the numbers are legitimate and reliable,” according to Seipler’s lawyer.

“Many of the tickets appear that many of the (arrestees) are white and labeled Caucasian but appear (non-Caucasian),” Mahoney observed.

“The defendants in our case say (the) allegations are false,” Horwitz pointed out. “We have a right to investigate it.

“Now, we’d like to question the defendants about the production of these documents,” he continued. “By the way, we have many more…”

“Stop,” Mahoney interjected. “They were pretty good.”

At this point Nygren attorney James Sotos entered the fray.

“None of that has anything to do with the disciplinary action.”

“OK,” the Judge said. “He’s entitled to try.

“How is this not relevant?

“Officers have indicated that somebody that’s not white was white.

“In order for him to build the case, he needs this information.”

More tomorrow.