A bit more than a month ago Rockford Federal Judge Frederick Kapala gave McHenry County Sheriff Keith Nygren’s attorney James Sotos and re-instated Deputy Sheriff Zane Seipler (who had the audacity to challenge Nygren in the GOP primary after being fired) a month to file 20 pages apiece.

The documents were to tell why Sotos thought Seipler’s case should be tossed and why Seipler attorney Blake Horwitz thought Sotos’ motion for contempt of court should be dismissed.

Since Seipler’s brief is shorter, I’ll run it first, a couple of the 15 pages each. Then, I’ll get to the Sotos brief.

PLAINTIFF’S MEMORANDUM OF LAW IN SUPPORT OF DENYING DEFENDANTS’ SANCTIONS MOTION

Now comes the Plaintiff by and through his counsel, Blake Horwitz and Dan Dorfman, and hereby responds to Defendants’ Motion for sanctions.

INTRODUCTION

Even after lengthy and exhaustive evidentiary hearings, Defendants’ motion remains grounded largely in conclusory allegations, innuendo, and speculation, but little substantive evidence. As the evidence shows, Defendants have simply not met their burden and their motion should be dismissed.

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Part 2 tomorrow

LEGAL STANDARD

Dismissing a case as a sanction is a “draconian” measure that “must be infrequently resorted to by district courts.” Rather, “the interests of justice are best served by resolving cases on their merits . . . .” Long v. Steepro, 213 F.3d 983, 986 (7th Cir. 2000) (internal citations omitted). Thus, “clear and convincing” is indisputably governing law in the Seventh Circuit:

[C]onsidering the severe and punitive nature of dismissal as a discovery sanction,
a court must have clear and convincing evidence of willfulness, bad faith or fault before dismissing a case. . . . In all circumstances, to justify dismissal as a sanction, there must be clear and convincing evidence.

Maynard v. Nygren, 332 F.3d 462, 468 and fn. 3 (7th Cir. 2003); Prima Tek II, L.L.C. v. Klerk’s Plastic Indus., 525 F.3d 533, 542 (7th Cir. 2008) (requiring “clear and convincing” evidence to hold party in civil contempt for violation of court order). [FN1] Defendants will likely contend that, because several subsequent Seventh Circuit decisions have “questioned” Maynard, the lesser, preponderance-of-the-evidence standard governs. See Ridge Chrysler Jeep, LLC v. DaimlerChrysler Fin. Serv. Americas LLC, 516 F.3d 623, 625-26 (7th Cir. 2008); Wade v. Soo Line R.R. Corp., 500 F.3d 559, 564 (7th Cir. 2007). This argument is unavailing. Maynard has not been overruled and remains the governing standard in this circuit.

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FN1  See also FTC v. Asia Pac. Telecom, Inc., 788 F. Supp. 2d 779, 790 (N.D.Ill. 2011) (“Clear and convincing evidence has been the traditional standard required by the Seventh Circuit for ordering a default judgment as a discovery sanction”); Stewart v. Illinois, 2003 U.S. Dist. LEXIS 14076 (N.D.Ill. Aug. 11, 2003) (holding that dismissal of a case as discovery sanction requires clear and convincing evidence); REP MCR Realty, L.L.C. v. Lynch, 363 F. Supp. 2d 984, 999 (N.D.Ill. 2005) (same).

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Accordingly, this Court must apply the clear-and-convincing standard to Defendants’ motion to dismiss. See JFB Hart Coatings, Inc. v. Am. General, LLC, 764 F.Supp. 2d 974, 981 (N.D.Ill. 2011). It is black-letter law that district courts must apply the law as expressly stated by the Circuit Court in their jurisdiction and not rule based on speculation as to how the Court might rule in the future. See Hastert v. Illinois State Bd. of Election Comm’rs, 1994 U.S. App. LEXIS 13101 (7th Cir. June 1, 1994) (“When a district court overlooks . . . relevant, binding precedent, its decision cannot stand”). Specifically, a district court does not have the authority to decide that governing precedent has been overturned or altered “by implication” in subsequent appellate decisions. See Levine v. Heffernan, 864 F.2d 457, 461 (7th Cir. 1988). As the great Judge Learned Hand explained:

[W]e have not been oversuccessful in attempting ‘to embrace the exhilarating opportunity of anticipating a doctrine which may be in the womb of time, but whose birth is distant.’ and I think it would be the part of wisdom to desist here….
Quoted in Sommerfield v. City of Chicago, 252 F.R.D. 407, 415, fn. 5 (N.D. Ill. 2008) (holding that the cases like Soo Line that question the clear-and-convincing standard have no precedential value).

Accordingly, Defendants must prove by clear and convincing evidence that this action may be dismissed as a discovery sanction for Plaintiff’s purported misdeeds. However, the palpable paucity of proof presented by Defendants in support of their motion requires denial of the motion whichever standard of proof this Court applies.

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Part 3 tomorrow.

ARGUMENT

A. The transcript of September 23, 2011 hearing before Judge Mahoney. Utilizing speculation and unsupported conjecture, Defendants argue that Plaintiff’s counsel deliberately misled the Court.

Blake Horwitz

The passage at issue is a colloquy between Judge Mahoney and Mr. Horwitz in a hearing on September 23, 2011. [FN2] Defendants presume to know what Mr. Horwitz meant by his answer to Judge Mahoney’s question: Under the provocative heading “[II.](C) Perjury, Misdirection and Deception” in their second supplemental motion to dismiss, Defendants assert that in that hearing:

Plaintiff’s counsel deceptively stated, in an attempt to mislead and deceive the court, that he “[did not] have an answer” to the Magistrate Judge’s question as to how the owner of the offending blog obtained the confidential what Mr. Horwitz meant by his answer to Judge Mahoney’s question: Under the provocative heading “[II.](C) Perjury, Misdirection and Deception” in their second supplemental motion to dismiss, Defendants assert that in that hearing:

Plaintiff’s counsel deceptively stated, in an attempt to mislead and deceive the court, that he “[did not] have an answer” to the Magistrate Judge’s question as to how the owner of the offending blog obtained the confidential document.)

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FM2 Mr. Horwitz: So moving on, Google’s response is – with regards to MCSO [E]xposed, that’s what Google’s response is. My client created that website a couple years ago. Not [R]eal MCSO [E]xposed. There’s a lot of websites out there that have many different names – I’m sorry. There’s a lot of websites that have – at least from what I understand. They’ve got lots of bloggers out there. A lot of people are very critical of the department and all that, and they’re saying lots of different things, and they have similar names to them. That’s just what I remember.

The Court: How would they get the documents?

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

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

Mr. Horwitz: Yes.

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

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

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Part 4 tomorrow.

Contrary to Defendants’ spin, Mr. Horwitz made clear to Magistrate Judge Mahoney what he meant: At the time the disputed documents were posted on the suspect blogs, Mr. Horwitz did not know how third parties could get “the documents . . . to put them up [on the Internet]” and thus could not provide a definitive answer to the question. There were a number of reasons for this conclusion:

James Sotos

In his testimony, Mr. Sotos acknowledges that, with regard to Judge Mahoney’s use of the plural (“websites”), two websites were at issue — the Real MCSO and Shadow blogs. Mr. Sotos agreed that it was not unreasonable, let alone misleading or deceptive, to believe that the disputed confidential documents were uploaded to blogs by third parties. (Transcript of Sotos Testimony (“Sotos TR.”) at 1222.)

Most significantly, Mr. Sotos admits that he could not be sure how the disputed documents got onto the blogs at issue, which is precisely how Mr. Horwitz responded to Judge Mahoney’s question. Mr. Sotos agrees that an unhappy sworn member of the MCSO, Deputy Milliman, gave confidential materials to Mrs. Seipler that had been produced by the Defendants to the Plaintiff. (Id. at 1230, 1232-1234.) Mr. Sotos further agrees that Sgt. Pyle, with his highly developed computer skills, knew how to hack into computers and he could believe that Sgt. Pyle had done so. (Id. at 1018. [FB3]) Mr. Sotos also grants that documents can be uploaded onto a website by a third party, with the website-owner’s permission, but states that he did not know whether such permission had been granted by the owner of the Shadow website. (Id. at 1232.)

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FN3 18 Q. If I told you that Sergeant Pyle has actually told members of the department that he goes into computers, hacks into them, and can upload information onto the Internet, would that surprise you?

A. Not really, no. After what I’ve heard about Sergeant Pyle, I guess you could say nothing would surprise me. (Sotos Tr. at 1018)

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Part 5 tomorrow.

Conceding that Judge Mahoney referred to “websites” in the plural, Mr. Sotos nevertheless maintains that the Judge was referring only to one website, Real MCSO, because that was the subject of Defendants’ motion. (Id. at 1224, 1227, 1231, referring to Defendants’ Exh 23 at 13:17-19.) Mr. Sotos admits that this is just his interpretation of Judge Mahoney’s reference to “websites” in the plural. (Id. at 1225.) Yet, Mr. Sotos still maintains that Mr. Horwitz “tried to misdirect the court . . .” (Id. at 1225.) Mr. Sotos is confident that Judge Mahoney had in mind only the Real MCSO, despite no support in the hearing transcript.

Nonetheless, for some reason, Mr. Sotos argues that one would have to ask Judge Mahoney directly whether the Judge was referring to any other website, in particular the Shadow website, where some of the disputed documents appeared. (Id.at 1225-1226, 1238:-1239.)

Defendants insist that Judge Mahoney’s question was crystal clear and thus, because Mr. Horwitz must have known what the unambiguous question referred to, his response was patently deceptive. (Id. at 1238.) Astonishingly, Defense counsel, Ms. Ekl, objects to Mr. Horwitz posing Judge Mahoney’s own question to Mr. Sotos. Ms. Ekl contends that the question is “vague.” (Id. at 1236-1237.) Explaining the reasons for her objection, Ms. Ekl makes a statement that would be comical, if its implications were not so serious: “Judge, again, I object to the vagueness of this question. We’ve been talking about multiple documents from multiple productions, multiple sources, and multiple websites.” (Id. at 1237). But these are exactly the reasons that Mr. Horwitz gives for his answer to Judge Mahoney’s question, reasons that Defendants have insisted for months and months proved Mr. Horwitz’s answer was a deliberate attempt to mislead and deceive the Court:

There’s a lot of websites that have – at least from what I understand. They’ve got lots of bloggers out there. A lot of people are very critical of the department and all that, and they’re saying lots of different things, and they have similar names to them. That’s just what I remember. (Defs. Exh. 23 at 13:8-13.)

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Part 6 tomorrow.

Defendants will likely argue that Plaintiff’s counsel was aware that Ms. Seipler indicated she had knowledge of how the information was uploaded onto the websites. However, undermining his own position, Sotos acknowledges that the August, 2011 conversation, in which Mr. Horwitz could have learned of this information, implicated the spousal privilege.[FN4 ]At no time did Ms. Seipler state that she told Mr. Horwitz that she uploaded the documents. Although Mr. Horwitz and the Plaintiff did have a heated conversation about who uploaded the confidential documents onto the Internet, Ms. Seipler never advised Mr. Horwitz that she had done so. Indeed, she specifically stated that she desired to speak to a lawyer and would not tell Mr. Horwitz what happened. [FN5] (Id. at 1494-1495).

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FN4 Q. Okay. So, you accept that a privileged conversation could 21 have taken place in August 2011, correct? Where an issue concerning spousal privileges could have arisen; is that correct?

A. Sure. (Sotos Tr. at 983.)

FN5 In September, 2011, Mrs. Seipler contacted John Nelson, her attorney at that time. (Rosalinda Seipler Testimony, Transcript at 1496.) Later she secured the services of Dennis Giovanni. (Id.) Mr. Horwitz asked Mr. Nelson if Mrs. Seipler posted the materials and Mr. Nelson advised that he would not disclose that matter to Mr. Horwitz.

Ultimately, Mr. Horwitz learned from Dennis Giovanni that Mrs. Seipler posted the materials. (Horwitz, Tr., 808-809).

Furthermore, Mr. Nelson agrees that it would have been unethical for Mr. Horwitz to invade her relationship with Mr. Nelson, subject to review by the ARDC. (Nelson TR. at 843-844, 849-851). Moreover, obvious conflicts prevented Mr. Horwitz from inquiring further; even if Mrs. Seipler did not ask for a lawyer, Mr. Horwitz was obligated to advise her that she should secure the services of a lawyer, as Mr. Nelson testified. (Id. at 862-863).

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Mr. Horwitz properly answered Judge Mahoney’s question and was not deceitful. Thus, Defendants’ accusation that Plaintiff and his counsel sought to mislead the Court on September 23, 2011 rings hollow and is contradicted by the evidence. The motion should be denied.

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Part 7 tomorrow.

B. The Plaintiff did not upload the documents onto the web or pressure his wife to do so. Mrs. Seipler uploaded the documents out of anger, fear and concern for her family.

Defendants claim that either Plaintiff posted the disputed documents on the Internet or his wife did so at his direction. The evidence does not support these contentions. It is undisputed that Rosalinda Seipler (“Rosa” or “Mrs. Seipler) created two blogs in May-June 2011 and posted some confidential personnel documents on these blogs. Mrs. Seipler testified that: For three years, she felt angry, worried, and helpless in the face of MCSO’s harsh treatment of husband, which was destroying her family financially and emotionally. (Rosalinda Seipler Testimony, Transcript (“R. Seipler TR.”) at 1467-1468). Mrs. Seipler selected the offending documents from a box that was organized for the depositions that were taking place (Z. Seipler, Tr. 343, 468-471) (R. Seipler, Tr., 1383).

MCSO was “targeting” her husband for reporting racial profiling in the department, while doing nothing about the profiling that Zane reported. (Id. at 1442, 1445.) After all, the department removed Zane from the SWAT team, no longer employed him as a Field Training Officer or a First Aid Trainer and ultimately placed him on administrative leave. It seemed that the department was more determined to demote Zane that to investigate Zane’s allegations of racial profiling. (Id. at 1443-1446. ) Indeed, at the time Mrs. Seipler put the disputed documents up onto the web, the MCSO had still not reinstated Zane too the department, even though he had won his job back three times.

Rosa became aware that an internal investigation of 51 deputies, led by Mr. Sotos’ law firm, determined that only seventeen of the officers had deliberately misidentified the race of drivers they ticketed. (Id. at 1448-1449). Rosa was concerned that Mr. Sotos was purportedly investigating the same officers and department that he represented as an attorney. (Id. at 1446-7.)

The department did not impose any disciplinary action on any of the seventeen officers, including Jeremy Bruketta, who had misidentified the race of drivers on hundreds of tickets in one year. (Id. at 1451). In disturbing contrast, Defendant Sheriff Nygren sought to arrest Zane for filling out two tickets incorrectly. (Id. at 1455.)

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Part 9 tomorrow.

Mrs. Seipler felt like “we didn’t have a chance” and “we were battling something.” She was “very pissed… [and] afraid.” (Id. at 1447.) Rosa believed that the truth about the MCSO was not going to come out. (Id. at 1447, 1456). Mrs. Seipler put the information up on the web because she had become “paranoid,” fearing that something was going to happen to Zane, her, or her children. Deputy Milliman’s brother, Kurt, was murdered only six months after the Deputy was deposed, and Rosa believed that Kurt Milliman’s death was payback to stop Deputy Scott Milliman from speaking out. (Id. at 1457, 1467, 1557). At the time, Mrs. Seipler had three children under the age of six. (Id. at 1334-1335.) In addition, at that time and for several months prior Mrs. Seipler had been barricading the doors to her house (Id. at 1491-1492). Guns were strategically placed in the house to defend the family and the shades were drawn so that the children could not be seen from the outside. (Id.) Rosa was also afraid that the Sotos law firm, with its unlimited resources, was going to “come after her” and she would lose her job. (Id. at 1501.) Rosa believed that publishing the information on the internet might make her family safer. (Id. at 1467-1468).

Mrs. Seipler was aware that the Milliman deposition transcript had gotten to the Northwest Herald and to an associate of Sheriff Nygren, Jose Rivera, who, as she understood it, was involved in shady dealings with the department. (Id. at 1459-1460). Moreover, in January, 2010, after the domestic violence report was made public, Mrs. Seipler spoke to a sergeant of the Woodstock Police Department, who initiated an internal investigation to find out how the materials became public. The sergeant told her that only the Sotos law had received the documents, in response to a subpoena; other requests by various newspapers were denied. (Id. at 1511-1515). Ultimately, Rosa received a letter from the Woodstock Chief of Police confirming these details. (Id.)

Mrs. Seipler removed the confidential designation from the documents when she scanned them into the computer. After all, the domestic violence report had been distributed with the confidential designation and therefore Rosa understood this to be the proper procedure. She believed that the documents that she uploaded to the blogs were not confidential, since Judge Mahoney ruled that the domestic report and the Milliman deposition transcript were not confidential. (Id. at 1504-1509).

When Mrs. Seipler created the first blog, there was no need to log in or create a website; the computer was turned on and so she went in straight to Google. When creating the second blog, the computer was turned off, so she turned it on and had to log in. (Id. at 1465-1467). This presented no problem. Zane and Rosa shared the same password on the computer. They agreed, after Zane’s had a relationship with another woman, that there would be no secrets between them. For this reason, Zane could not create a password that would limit Rosa’s access to the computer. (Id. at 1485).

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Part 9 tomorrow.

Nevertheless, Rosa did not tell Zane — or anyone else — that she posted the disputed materials. Mrs. Seipler had previously posted comments on a number of media websites, such as the Daily Herald, the Northwest Herald, and the Woodstock Advocate. Zane had told Rosa that he did not want her to post information on the web and they had often argued about this. (Id. at 1473). When Mrs. Seipler started posting in 2009, Zane objected, concerned that the material she posted could harm his campaign for Sheriff. (Id. at 1479-1481). Mrs. Seipler continued to post comments in late 2009-2010 but without posting her name, in order to avoid arguments about this with her husband. (Id. at 1483-1484). Rosa did not tell Zane that she posted the materials to the Real MCSO website or the Shadow Website until August, 2011 because she did not want to create “problems” between her and her husband. (Id. at 1488-1490).

When Mrs. Seipler overheard Zane telling his attorney in a telephone conversation that he had not posted the materials on the web, she felt compelled to tell her husband that it was she [w]ho had done so. She posted the documents, Rosa told Zane, because she feared that he was going to be criminally prosecuted and was in “big trouble” (Id. at 1494). That same evening, Mrs. Seipler and Mr. Horwitz spoke on the phone and Mr. Horwitz asked her if she knew who had posted the materials on the Real MCSO and Shadow websites. When Mrs. Seipler told Mr. Horwitz that she was not going to tell him. Mr. Horwitz posed certain hypotheticals to Mrs. Seipler and then advised her to consult with her own lawyer. (Id. at 1494-1495.)

In September, 2011, Mrs. Seipler contacted Mr. John Nelson, who was her attorney at that time. (Id. at 1497-1498). After she and Mr. Nelson spoke in October, 2011, she chose Mr. Dennis Giovanni to represent; she had come to the conclusion that Mr. Giovanni would be more zealous in her defense. She secured the services of another attorney who she felt was better suited, based on his level of interest in defense of Ms. Seipler, Dennis Giovanni. (Id. at 1497-1498). Mrs. Seipler engaged an attorney because she was not sure whether she would be criminally prosecuted and at that time, she was the family’s sole breadwinner. (Id. at 1499).

The evidence does not support Defendants’ contention that the Plaintiff posted the disputed materials onto the web or that he induced his wife to do so. The motion should be denied.

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Part 10 tomorrow.

C. Defendants’ version of events makes little sense.

Defendants’ position is riddled with illogic. The Sotos law firm acknowledges that they were monitoring the Plaintiff’s MCSD Exposed website on a daily basis and Plaintiff knew this by means of a program called Site Meter (Z. Seipler, Tr. 398), which disclosed Sotos’ IP address and law firm’s daily observations of Mr. Seipler’s website. Consequently, Mr. Seipler was aware that the Sotos firm was aggressively monitoring a website that was generated from Plaintiff’s home computer and he could identify the firm’s IP address as well. Plaintiff was also aware that the Defendants had available the services of a computer forensic expert, then-Sergeant Pyle, who made no secret of his hatred for Mr. Seipler.7 (Seipler TR. at 340.) Zane knew that, as a computer forensic expert (Z. Seipler, Tr., 340, 554), Pyle knew how to access Mr. Seipler’s computer and track his internet uploads and IP address. Lastly, Mr. Seipler profoundly knew that Sheriff Nygren would use any and all means to attack and damage Mr. Seipler. After all, the Sheriff had Zane’s job away, criminally prosecuted him, threatened Zane by telling him to be sure that he has “good life insurance,” (Z. Seipler, Tr. 595) falsifying racial profiling studies, and appealing Zane’s termination at every possible level, from arbitration to the Illinois Supreme Court. [sic]

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FN6 Mr. Sotos admits that he did not suspect Mr. Horwitz of wrong doing but asserted that Mr. Horwitz engaged in wrong doing (Sotos Tr., 1041).

FN7 Pyle maintained a website called the AntiWoodstock Advocate, where he widely disseminated his displeasure with Mr. Seipler with a repeatedly-posted obscene message directed at the Plaintiff, which read “Fuck You, Fuck You, Fuck You.” (Seipler TR. at 467, 622.)

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Moreover, the Google subpoenas were sent to Plaintiff’s counsel on June 15, July 6, and August 1, 2011. (Sotos TR. at 1280, 1278, 1285, 1289-1290.) Plaintiff also knew that Defendants were seeking sanctions for his alleged posting of confidential material onto the web. However, the Shadow website, which contained the confidential documents (Sotos, Tr., 966) continued until approximately August 15, 2011 [FN8].

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FN8 The last known date for the shutdown of the Shadow website is August 15, 2011. [Def. Ex. 31, Defs. Supp. R26 Disc. 006246]. The last publication to the website was August 8, 2011, Id. at 6245.

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Defendants maintain that Plaintiff continued for two months to post confidential materials from his home computer to the web, either alone or in collusion with his wife – precisely the activity for which Defendants were seeking sanctions. This simply makes no sense.

Defendants’ construction of circumstantial evidence does not support their contention that the Plaintiff or the Plaintiff together with his wife posted the disputed materials on the Real MCSO Exposed or the Shadow websites. Clearly, as Defendants argue, if the Plaintiff got “caught”[FN9] he would not continue to post documents for two months after the June motion for sanctions. On the contrary, the evidence reveals Defendants’ version of events to be illogical.
The motion should be denied.

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

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D. Plaintiff and his counsel hid no information.

In the September 14, 2011 deposition of Mr. Seipler, Mr. Horwitz specifically asked Mr. Seipler clear, direct questions as to whether he uploaded the information onto the offending website. Mr. Sotos admits that the answers were clear. (Sotos TR. at 969.) Even though Defendants seeks sanctions regarding this deposition (Dkt No. 384, pg. 8, allegations 14-15), it is clear that Plaintiff was deliberate and straightforward in his answers.

E. Mr. Horwitz properly asserted a privilege in the September 14, 2011 deposition.

Defendants contend that Mr. Horwitz did not assert a valid privilege-objection in Mr. Seipler’s deposition, but was merely engaging in misdirection. (Dkt No. 384, pg. 8, allegations 14-15). Oddly though, Mr. Sotos admits that the spousal privilege was available [FN10]. John Nelson,Mrs. Seipler’s attorney, testified that if Mr. Horwitz violated the privilege, he could have been subject to discipline (Nelson TR. at 865.) Although Mr. Sotos asserts in writing that the privilege was vaguely asserted (Dkt No. 384 Id.), he admits that the spousal privilege could have been the privilege which Mr. Horwitz was invoking. (Sotos TR. at 981-982). Regardless, Defense counsel could have filed a motion to determine the nature of the privilege that Mr. Horwitz asserted, after complying with Local Rule 37.2’s meet and confer requirement, but chose not to.

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FN10 Q. Okay. So, you accept that a privileged conversation could have taken place in August 2011, correct? Where an issue concerning spousal privileges could have arisen; is that correct?

A. Sure.
(Sotos, Tr., 983)

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F. Plaintiff’s counsel committed a simple error in citing to the websites in question.

Plaintiff’s counsel admitted that he erred regarding the names and URLs of the websites when drafting Plaintiff’s response to Defendants’ initial motion for sanctions. Mr. Sotos acknowledges that Mr. Horwitz could simply have made a mistake in connection with the drafting [FN11]. Despite these errors, the affidavit that Plaintiff and his counsel submitted in response to Defendants’ original (June, 2011) motion for sanctions established that neither Plaintiff nor his counsel posted the materials to the websites at issue or knew who had done so. Further, the Plaintiff came forward in his September, 2011 deposition and very candidly explained, in very short and clear questions posed by his counsel that he did not post the materials to the internet.   The testimony and documents in this matter establish that there were many websites being addressed in this cause, including a website name, The Real MCSD, realmcsoexposed.blogspot.com and mcsoexposed.blogspot.com (Dkt No. 266-2, filed August 11, 2011).

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FN11 Q. And you sure wouldn’t want an attorney like me writing stuff up on motions and messing up the website addresses, right?

A. I think it’s better that that doesn’t happen

Q. Can you accept that that was just a mistake on my part?

A. I don’t know whether it was a mistake. That may have been a  mistake. I don’t know.
(Sotos, Tr. 1100)

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Interestingly, Defendants forensic expert erred as well (Sotos, Tr., 1048-1049) with regard to when the various blogs were created and Mr. Sotos also erred, calling the offending Blog realmcsdexposed whereas the correct address is realmcsoexposed [FN12]. The clerical errors were multiple in nature, but they were merely errors.

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FN12 Q. Okay. And so, with regards to the question in the plural that the federal judge asked me about, which websites in the plural, when he says in the plural, what was he talking about?

A. My interpretation of that, as I’ve said, is that he was talking about the Real MCSD Exposed website on which the documents were posted (Emphasis Added).

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G. Plaintiff’s frustrations referenced in his website do not amount to evidence of publication of confidential matters.

It is apparent that at times, Zane discussed his frustration at information being kept private. He mentioned his difficulty with the Pavlin situation (Seipler, Tr., 324, 331, 413-416) and the court’s resistance to make information regarding that situation public and how that approach will allow the department to maintain corruption. But Zane did not disclose confidential information. Later, he arrived at an idea to see which individuals would tender their e-mail address to him in order to secure information he could provide them (legally) regarding the Pavlins. (Z. Seipler, 413-416). However, nothing became of this approach.

CONCLUSION

For all the reasons stated above, Defendants’ motion fails to meet the clear-and-convincing evidentiary standard required of a motion to dismiss proffered as a discovery sanction. The motion should be denied.

December 5, 2012

/s/ Dan Dorfman
The Blake Horwitz Law Firm, Ltd.
39 S. LaSalle, Suite 1515
Chicago, Illinois 60603
Telephone: (312) 676-2100