Point, Counter Point – Sotos, Horwitz Both Request Sanctions – Part 3

This is the third article exploring the counter motion for sanctions filed by Zane Seipler attorney Blake Horwitz.

It claims that defendant McHenry County Sheriff Keith Nygren released confidential information three times in violation of a court order by Magistrate Michael Maloney in Seipler’s wrongful termination suit.

Paragraphing and formatting has been added in the text to make the text easier to read on a computer screen.

The court filing continues.

“Perjury – Direct Evidence

“In developing their deceit attributable to the dissemination of the sensitive Milliman deposition, Sheriff Nygren and the Undersheriff misrepresented their interaction with Jose Rivera, the alleged criminal co-conspirator.

“Sheriff Nygren represented, in a sworn affidavit that Mr. Rivera called Sheriff Nygren and spoke to him regarding the Milliman Deposition and a subpoena Rivera received for deposition (Exhibit A).

“However, Mr. Rivera did not speak to the Sheriff at all regarding the deposition or a subpoena.

“The Sheriffs facts are wrong.

“Mr. Rivera testified that he called regarding the article and spoke to Undersheriff Zinke and not Nygren.

“The evidence shows the misrepresentations to this Court.

“The Sheriff’s Affidavit

Keith Nygren

“3. On or about December 10, 2010, I spoke to Jose Rivera over the telephone. He called me and told me that he had received a deposition subpoena to testify in Seipler v. Cundiff et al…

“4. Mr. Rivera asked me if I knew why he was served with a subpoena and if I knew what he would be asked during the deposition.

“5. I told Mr. Rivera that I believed he received a subpoena because of Deputy Milliman’s deposition testimony. I told Mr. Rivera that instead of me trying to explain Milliman’s testimony, I thought it would be best if he read the transcript in order to answer his questions….(Exhibit A, Also filed as Dkt. No. 170-7, January 20, 2011)

“Jose Rivera never spoke to Sheriff Nygren regarding a deposition or a subpoena. Instead, he called the Sheriff’s department and spoke to the Undersheriff regarding the article he read in the newspaper. This is shown in the following excerpts:

“Rivera Deposition

“The reason for his call to the department was for the article he read:

“And the reason why you called the sheriff’s ·department was exclusively limited to the fact that you ·read an article or you heard about an article in the paper, which one?
A.· ·Correct.· I read the article in the paper.
Q.· ·In the Northwest Herald?
A.· ·Correct.
(Exhibit G, pg 72-73)

“Mr. Rivera did not speak to the Sheriff regarding the Milliman Deposition:

Q: Tell me if this is true or false:· Sheriff Nygren spoke to you at some time with regards to allegations that Scott Milliman gave in a deposition.
A.· ·No.· He just mentioned that he was going to go ·to a, what you call it, what we’re doing here, a ·deposition.· But because that was the only — But he didn’t discuss basically what was going on.
Q.· ·Sheriff Nygren at some time talked to you about a deposition you were going to give?
A.· ·No.
(Exhibit G, pg 76-77)

Q.· ·Have you spoken to Sheriff Nygren about any of the allegations that were lodged by Scott Milliman at any time?
A.· ·No.
(Exhibit G, pg 74)

“Mr. Rivera called and spoke to Undersheriff Zinke, not the Sheriff.
Q.· ·How is it you got it from Zinke?· Did he say,’Hey, I’ve got something to give you,’ or do you have this meeting arranged?
A.· ·Basically when I read in the newspaper what was going on, I basically, you know, talked to him.
Q.· ·Talked to Zinke?
A.· ·Yes.· And so he gave me a copy of that.
Q.· ·Did you ask him for a copy?
A.· ·Yes.
Q.· ·Did he offer to give it to you, or did you ask him first?
A.· ·He gave it to me.
(Exhibit G, pg 33-34)

Q.· ·What caused you to call Zinke?
A.· ·Basically I saw what the accusation of ·Zacatecas, something like that.· I’m, like, ‘What is ·going on?’· So I went in, and he explained to me that basically my name was mentioned on the transcript, and that’s when basically I asked him for a copy.
(Exhibit G, pg 35)

·Q.· ·Did you say, “Hey, can I get a copy of the transcript,” or did he offer first and say, “I’ll give it to you,” or whatever?
A.· ·I asked him if — When he mentioned that my name appeared, basically at that time, I asked him if I can get a copy of it.
(Exhibit G, pg 33)

Q.· ·Okay.· So you called him up and asked if you could get a copy?
A.· ·Yes.
Q.· ·And what did he say to you?
A.· ·To — Yes, basically.· I got a copy.
Q.· ·He said yes, he’ll give you a copy?
A.· ·Correct.
Q.· ·Or he said ‘Yes, I’ve got a copy’?
A.· ·He told me, ‘Yes.· Just come in and pick up a ·copy.’
Q.· ·So you came in?
A.· ·Correct.
(Exhibit G, pg 34)

“Based on the above, Rivera did not speak to the Sheriff, but Zinke. Rivera did not speak to the Sheriff or call regarding a ‘subpoena for deposition’ he received but to inquire to Zinke as to the article. He spoke to Zinke regarding the transcript and subsequently obtained same.

“The nature of the deceit can also be established by a quick admission Rivera let slip:
Q.· ·Okay.· Did he [Zinke] ever mention to you that the deposition was protected or under protective order?
A.· ·He mentioned it was confidential; but because my name was in it, if I wanted a copy, I could get a copy.· So I got a copy.
(Exhibit G, pg 35)

“The sworn affidavit of Sheriff Nygren compared to the sworn testimony of Jose Rivera demonstrates Sheriff Nygren’s misrepresentations to this Court.

“The misrepresentations were designed to induce this Court to believe that Sheriff Nygren did not tender the transcript to the Northwest Herald or inappropriately to any other third party.

“The credibility of that position is undermined by reviewing the testimony.

“The obvious contradictions call into the question how, when and why the transcript was disseminated to third parties.

“The manner in which Mr. Rivera received the transcript was not truthfully communicated to this Court.

“Lastly, it is abundantly clear that the mere tendering of the transcript to Mr. Rivera (and other officers) was a knowing violation of this Court’s confidentiality order.”

= = = = =
More tomorrow.

Leave a Reply

Your email address will not be published. Required fields are marked *