UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
Frank J. Steinhauser, III, et al., Civil No. 04-2632
JNE/SRN
Plaintiffs,
v. AFFIDAVIT OF
MATTHEW ENGEL
City of St. Paul, et al., IN OPPOSITION TO DEFENDANTS’ MOTION TO STRIKE
Defendants.
Sandra Harrilal, et al., Civil No. 05-461
JNE/SRN
Plaintiffs,
v.
Steve Magner, et al.,
Defendants.
Thomas J. Gallagher, et al., Civil No. 05-1348
JNE/SRN
Plaintiffs,
v.
Steve Magner, et al.,
Defendants.
STATE OF MINNESOTA )
) ss.
COUNTY OF HENNEPIN )
Matthew A. Engel, being duly sworn upon oath, states and deposes as follows:
1
Case 0:05-cv-01348-JNE-SRN Document 154 Filed 03/08/2008 Page 1 of 11
1.
I am an attorney licensed to practice law in the State of Minnesota and admitted to practice in District Court. I am the attorney of record for the Plaintiffs in Thomas J. Gallagher, et. al., v. Magner, et. al. This affidavit is submitted on behalf of all of the Plaintiffs in the above captioned matters in opposition to Defendants’ Motion to Strike.
2.
Plaintiffs filed a Joint Motion for Sanctions on August 6, 2007, (05-CV-1348, ECF Document No. 73), Joint Memorandum of Law setting forth the applicable cases on the issues of spoliation and non-production (05-CV-1348, ECF Document No. 85), and affidavits and exhibits (05-CV-1348, ECF Document Nos. 86 and 87). The Court heard argument from counsel on August 20, 2007.
3.
Plaintiffs are renewing their identical motion for sanctions and relying on the same law and same memorandum in support of their motion for sanctions. Plaintiffs are doing exactly what the Court requested in its November 13, 2007 Order: they are submitting evidence by affidavit and exhibits to show the Court that Plaintiffs suffered prejudice resulting from the loss of alleged relevant evidence.
2
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4.
Defendants first gave Plaintiffs’ counsel clearance to use 4,952 pages of emails and other documents at 4:40 p.m. on Friday, February 22, 2008, one business day before the deadline to file Plaintiffs’ renewed motion for sanctions. Moreover, Plaintiffs submit that Defendants have not yet completed production of all of the emails, or other documents subject to the Court’s order and therefore have no basis to complain to the Court about a claimed filing delay.
5.
In the Court’s November 13, 2007 Order denying Plaintiffs’ motion without prejudice, the Court ordered the parties to complete discovery before renewing the issue of sanctions, and ordered the Defendants to restore production of emails and other evidence before Plaintiffs could renew their motion for sanctions (05-CV-1348, ECF Document No. 105).
6.
Ms. Seeba claims that it is clear that the stipulation and order contemplated non-dispositive motions followed by dispositive motions, not the reverse. See Defendants’ Memo in Support of Motion to Strike at p. 2, footnote 1. However, what was not contemplated by Plaintiffs in entering into the stipulation with Defendant, which the Court then incorporated as its scheduling Order on February 1, 2008, was Defendants’ failure to comply with the Court’s order that Defendants complete production of the subject documents within a sufficiently reasonable amount of time to allow Plaintiffs to process that evidence and prepare their renewed motion. 3
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7.
It was not until Friday, February 22, 2008, that Defendants’ counsel finally cleared 4,952 pages of e-data for use by Plaintiffs in their renewed motion for sanctions. Plaintiffs’ counsel was then faced with incorporation of the redacted pages into the 4,952 page database, review of the produced data to make sure there were no inadvertently disclosed private data, analysis of said redactions and the 4,952 pages of data, incorporation of selections from 4,952 pages into Plaintiffs’ renewed motion, and preparation of affidavits and exhibits in support of the renewed motion – and filing of same – all in one day. Ms. Seeba does not mention a word about this in her affidavit or her Client’s Memorandum of Law. Moreover, Plaintiffs submit that Defendants have not yet completed production of all of the emails, or other documents subject to the Court’s order.
8.
At the time of the signing of the Stipulation to Amend Scheduling Order on January 31, 2008, and at the time of the Court’s February 1, 2008, Order, not only had Ms. Seeba not provided Plaintiffs with any redacted and cleared emails to analyze and use as evidence (Plaintiffs submitted 1,573 pages for redaction on January 11, 2008, and 1,987 pages on February 1, 2008), she had not produced all of the City’s documents related to the City’s relationship with PHA that were subject to Plaintiffs’ original motion and the Court’s order (228 pages of annual PHA crime reports prepared by the St. Paul Police Dept. were produced on February 12, 2008).
4
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9.
It was implied in the Court’s order that Ms. Seeba was to conduct a diligent search for City documents related to PHA. The Court stated, “But if Defendants have such documents in their possession, custody or control, Plaintiffs’ ability to obtain them elsewhere does not preclude Defendants’ obligation to produce any such relevant documents responsive to Plaintiffs’ discovery requests”. See Order at p. 10.
10.
Ms. Seeba had an obligation to conduct a diligent search of her clients’ documents for “City documents related to PHA” that were under her clients’ “possession, custody or control”. That obligation had commenced long before the August 20, 2007 hearing, and the Court was merely reminding Ms. Seeba of that obligation when the Court so instructed Ms. Seeba at the August 20, 2007, hearing. When the Court issued its November 13, 2007 Order, it emphasized the obligation of Ms. Seeba and her clients to search for and produce the PHA documents in the city’s possession by making not just one statement of that obligation, but two statements of that obligation. Order, pages 5-6, fn. 3, and page 10. The Court emphasized the duty of Ms. Seeba and Defendants to produce these documents independent of PHA’s potential production. 5
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11.
After such egregious delay by Ms. Seeba and Defendants, she and her clients now come to this Court, with unclean hands, demanding that the Court strike Plaintiffs’ non-dispositive motions so that she and her clients are not held to account for their discovery abuses.
12.
The parties entered into a Protective Order governing production of email data by Defendants to Plaintiffs for potential use as evidence in this case. This Protective Order was approved by the Court on December 10, 2007, which provided the following email production process: A) Defendants’ production of unredacted emails containing “private data;” B) Plaintiffs’ review of said unredacted emails; C) Plaintiffs selection of unredacted emails for delivery to Defendants; D) Plaintiffs delivery of selected unredacted emails to Ms. Seeba; E) Review by Ms. Seeba and her staff of the selected emails for redaction of “private data”; F) Defendants’ delivery of the “redacted” emails to Plaintiffs; G) Plaintiffs selection and organization of the cleared evidence for use before the Court; H) Submission to the Court of the evidence by way of affidavit.
13.
This email production process outlined in the paragraph above actually unfolded as follows. After the Court’s protective order was signed, I provided Defendants’ counsel with a CD containing unredacted City emails selected by Plaintiffs’ counsel and labeled STP 211355 – 212928 (1,573 pages) under letter dated January 11, 2008.
6
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On January 17, 2008, six days later, Ms. Seeba responded that the emails had been reviewed and there was nothing redacted from any of the emails. On February 1, 2008, I provided Defendants’ counsel with a second CD containing selected unredacted City emails labeled STP 212929 – 214916 (1,987 pages) to be redacted by Ms. Seeba or her staff. On February 11, 2008, I provided Defendants’ counsel with a third CD containing unredacted City emails labeled STP 214917 – 216307 (1,390 pages) to be redacted by Ms. Seeba or her staff. The selected emails totaled 4,952 pages of potentially attorney-client privileged or data protected documents.
14.
On February 19, 2008, contrary to her January 17, 2008 letter, I learned from Ms. Seeba that the first set of emails consisting of 1,573 pages that were submitted and reviewed by Defendants’ counsel, had actually not been reviewed for “private data” protected by the Minnesota Government Data Privacy Act. This was surprising as the main emphasis of the protective order was redaction of “private data.”
15.
The Stipulation to Amend the Scheduling Order dated January 31, 2008 (05-CV-1348, ECF Document No. 126), and the Order approving the amendment dated February 1, 2008 (05-CV-1348, ECF Document No. 126), required the Plaintiffs’ motion for sanctions to be filed on February 25, 2008. Plaintiffs’ obtained a hearing date and filed their detailed Motion and Notice of Hearing on February 25, 2008. (05-CV-1348, ECF Document Nos. 132 and 133).
7
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16.
The Courts’ Order dated February 1, 2008, states as follows: “2. All non-dispositive motions, including any motion for discovery sanctions, shall be filed by 2-25-08; 3. Dispositive motions filing deadline shall be extended to March 11, 2008, which is 45 days prior to the rescheduled dispositive motion hearing date of April 25, 2008” (emphasis added).
17.
The Stipulation to Amend Scheduling Order was drafted with specific reference to Defendants’ 45 day time period as required under LR 7.1, as Defendants had previously scheduled their dispositive motion, having filed the Motion for Summary Judgment on December 5, 2006 (05-CV-1348, ECF Document No. 27), with subsequent amendments to the scheduling order.
18.
At the time of the Stipulation and Order during the week of January 28 through February 1, 2008, Plaintiffs could not have known the exact nature or full extent of what evidence would be finally cleared by Ms Seeba as “redacted” copies of emails under the Protective Order, what additional “City documents related to PHA” would not yet be produced by the City, what the produced City documents related to PHA would reveal relevant to the renewed motion for sanctions, or what “City documents” would be discovered in PHA files.
19.
Defendants’ delay in not providing Plaintiffs’ counsel with cleared, “redacted emails” for use in this motion until 4:40 p.m. Friday, February 22, 2008, resulted in Plaintiffs’ counsel being unable to file their supplemental affidavits in support of sanctions by Monday, February 25, 2008 or a supplemental Memorandum of Law. 8
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Without knowing which or how many of the 4,952 pages of unredacted emails and documents would be subject to the attorney client privilege or the Minnesota Data Privacy Act, Plaintiffs’ counsel was put into a position of having to wait for redacted versions before fully analyzing their renewed motion for sanctions.
20.
Ms. Seeba now claims that Plaintiffs’ counsel should have incorporated the redacted pages into the 4,952 page database, removed attorney-client privileged documents and any inadvertently disclosed “private data,” conducted an analysis of said 4,952 cleared emails, incorporated selections from 4,952 pages into Plaintiffs’ renewed motion, and prepared affidavits and exhibits for the Court in support of the renewed motion, all in one business day. This is an outrageous claim especially when Ms. Seeba takes no responsibility for her egregious delay in prejudicing Plaintiffs and their counsel in their efforts to make presentations of evidence to the Court of Defendants’ other discovery abuses. When all the facts are reviewed, Defendants’ motion to strike is another of the discovery abuses and further prejudices Plaintiffs due to the costs, fees, and loss of time that Plaintiffs’ counsel could have devoted to other more immediate tasks in this litigation. Once again, that prejudice was the goal of Defendants.
9
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21.
Ms. Seeba’s conduct in first producing 4,952 pages of emails and other documents cleared for use under the data privacy act at the last minute on February 22, 2008, essentially “tied the hands” of Plaintiffs’ counsel in preparation for the renewed motion for sanctions. As a consequence, Mr. Shoemaker and I were forced to file a detailed renewed motion for sanctions on February 25, 2008. Our options were limited: we could return to the Court once again with one more motion in a “sea of motions” due to the delay tactics of Defendants and their discovery abuses, but such a motion would have again delayed the proceedings, and taken more of the Court’s valuable time and limited resources; or we could do the best under the circumstances by obtaining a court hearing date, preparing a detailed Motion and a Notice of Motion and filing and serving those documents by February 25, 2008, and then submitting the affidavits and exhibits to the Court in an expedited manner. We chose to not take the Court’s time when we believed the conduct of Defendants and Ms. Seeba was so outrageous as to be in violation of Rule 11.
22.
Plaintiffs’ counsel made every possible effort to file their affidavits and exhibits in support of their renewed motion for sanctions in an expedited manner in response to Defendants’ motion to strike. Plaintiffs’ counsel were able to provide the Court with the evidence it requested in its November 13, 2007 order, just nine days after February 25, 2008, when Ms. Seeba claims the memorandum of law was due, and just 12 days after February 22, 2008, when Ms. Seeba first gave clearance to use 4,952 pages of redacted electronic data.
10
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11
23.
For these reasons, and because Defendants’ lack of “fair play” as detailed in this affidavit and the affidavit of John R. Shoemaker in Opposition to Defendants’ Motion to Strike, Defendants should not be allowed to profit by their litigation tactics and last minute production of redacted emails, and the Court should deny Defendants’ motion to strike Plaintiffs’ Non-Dispositive Motions from the calendar and award Plaintiffs their attorneys fees and costs in having to defend this motion that was entirely unnecessary except for Defendants’ intent to continue to hide their wrongdoings, keep evidence from the Court, and to continue to victimize the Plaintiffs by using litigation tactics designed to bleed the Plaintiffs dry.
FURTHER YOUR AFFIANT SAYTH NOT.
Dated: 3/8/08 s/ Matthew A. Engel__
Matthew A. Engel
Subscribed and sworn to before me
this 8th day of March, 2008.
s/ Bradley A. Kirscher
Notary Public
Under Seal
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11:07 PM
Bob said...
UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
Frank J. Steinhauser, III, et al., Civil No. 04-2632
JNE/SRN
Plaintiffs,
v. AFFIDAVIT OF JOHN R. SHOEMAKER
IN OPPOSITION TO DEFENDANT’S
City of St. Paul, et al., MOTION TO STRIKE
Defendants.
Sandra Harrilal, et al., Civil No. 05-461
JNE/SRN
Plaintiffs,
v.
Steve Magner, et al.,
Defendants.
Thomas J. Gallagher, et al., Civil No. 05-1348
JNE/SRN
Plaintiffs,
v.
Steve Magner, et al.,
Defendants.
STATE OF MINNESOTA )
) ss.
COUNTY OF HENNEPIN )
John R. Shoemaker, being duly sworn upon oath, states and deposes as follows:
Case 0:04-cv-02632-JNE-SRN Document 187 Filed 03/08/2008 Page 1 of 23
1.
I am the attorney of record for the Plaintiffs in Frank J. Steinhauser, et al., v. City of St. Paul, Magner, et al. and for Plaintiffs Sandra Harrilal and Steven R. Johnson in Sandra Harrilal, et al. v. Magner, et al.
2.
I am submitting this affidavit in opposition to Defendants’ Motion to Strike Plaintiffs’ joint renewed Motion for Sanctions against Defendants in all three of the consolidated cases.
3.
Plaintiffs originally filed their Joint Motion for Sanctions on August 6, 2007 (Doc. No. 102 – Steinhauser, et al.; Doc No. 79 – Harrilal, et al.; and Doc. No. 73 – Gallagher, et al.), with supporting affidavits of Plaintiffs’ counsel and exhibits (see for example, Affidavit of John R. Shoemaker, Doc. No. 114, Steinhauser, et al hereinafter referred to as “First Shoemaker Aff.”), and their Joint Memorandum of Law (Doc. No.116, Steinhauser, et al.).
4.
On August 20, 2007, the Court held a hearing on Plaintiffs’ joint motion. On November 13, 2007, the Court issued its Order ruling on the joint motion (see Doc. No. 134, Steinhauser). The Court denied Plaintiffs’ motion without prejudice finding that Plaintiffs had not yet established prejudice from the lack of access to any evidence they alleged was destroyed. Order, p. 9. The Court determined that Plaintiffs’ motion could be renewed if and when Plaintiffs could demonstrate that they were prejudiced by the destruction or non-production of responsive documents. Order p. 10.
2
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5.
Most importantly for purposes of Defendants’ motion to strike, the Court outlined the process that the parties were to use before the Plaintiffs’ could renew their motion for sanctions: “a motion for sanctions based upon any alleged improper destruction of such e-mails must await (1) the completion of that recovery process, and (2) a showing of prejudice resulting from the loss of any relevant e-mails that could not be recovered.” Order, page 8 (emphasis added). The Court stated that “any finding of prejudice must await a showing of the contents of any documents that remain missing (or otherwise not produced) once discovery is complete.” Order, p. 6, fn. 4 (emphasis added).
6.
The Court in its Order, p. 9, went even further in providing directions for the parties and their counsel on the procedure to follow prior to any renewal of Plaintiffs’ sanctions motion. The Court stated, “With respect to the ongoing production of documents, either pursuant to the City’s recovery of deleted e-mails or otherwise, the parties shall meet and confer to establish a protocol governing the production of evidence…”. “Once all of the remaining documents are produced, the parties shall meet and confer regarding any additional depositions that need to be taken in light of any such new evidence. If they are unable to agree, the Court will entertain an appropriate motion.” Order pp. 9 and 10 (emphasis added).
3
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7.
The Court and the parties determined that there needed to be an intermediate process between Defendants’ data “recovery process” and the final process of Plaintiffs’ presentation of evidence showing the “prejudice resulting from the loss of any relevant e-mails that could not be recovered.” That intermediate process included a number of phases: a) Defendants’ review of the restored email data for attorney-client privileged information; b) the production of restored e-mails under a protective order, c) “attorneys’ eyes” only review by Plaintiffs’ attorneys of the “raw unredacted emails” d) selection of emails by Plaintiffs’ attorneys for evidence including in any renewed motion for sanctions, for further discovery, and for trial, e) delivery of these selected emails to Defendants’ counsel, f) review by Defendants’ counsel of the selected emails and redaction of any “private data,” g) delivery of the redacted emails to Plaintiff’s counsel who then were “cleared” to use the selected emails as “evidence” in the renewed motion. The parties agreed that due to the large volume of e-mail data to be produced by the City, Plaintiffs would continue to forward selected emails to Defendants’ counsel once every two weeks and Defendants would continue to conduct redactions of “private data” as needed with delivery of the redacted emails to Plaintiffs for their review of the data as required under the protective order.
4
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8.
A number of final steps in this overall process of moving toward presentation of evidence on the issue of prejudice to the Court included: a) Plaintiffs’ analysis of whether such data (finally “cleared” under the protective order) actually had all private data removed, b) whether such data supported Plaintiffs’ renewal of their sanctions motion, c) preparation of the renewed motion, and d) submission of such evidence and arguments related to the evidence to support their renewed motion by way of affidavits of counsel. Under the Protective Order, paragraph 23, Plaintiffs are to notify Defendants of any inadvertent disclosure of “private data” discovered by Plaintiffs in the redacted emails. Once Plaintiffs received from Ms. Seeba any redacted, cleared email data, Mr. Engel and Affiant had to ensure as best we could that Ms. Seeba and her staff had made proper redactions.
9.
In summary, the Court’s November 13, 2007, Order required the following ordered steps: (1) Defendants’ production of all the remaining evidence, e-mail or otherwise, (2) followed by completion of a meet and confer regarding additional depositions that needed to be taken in light of the new evidence, (3) either agreement on those depositions or a court motion regarding same, and (4) then Plaintiffs’ presentation of their renewed motion for sanctions.
5
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10.
Defendants now claim that Plaintiffs have failed to meet the deadline in the Amended Scheduling Order on renewed motions for sanctions and discovery issues by failing to file a Memorandum of Law and any documents supporting their renewed motion for sanctions and other discovery motion by the February 25, 2008 deadline in the Court’s Scheduling Order. However, Plaintiffs did file their Memorandum of Law in August 2007 and in Plaintiffs’ detailed Motion for Renewed Sanctions, Plaintiffs expressly stated that their renewed motion was based upon all motion documents originally filed in August 2007. Defendants also seek to have Plaintiffs’ renewed motion for sanctions dismissed for claimed failure of Plaintiffs to timely support their motion with evidence.
11.
Defendants have again come before this Court with “unclean hands” seeking relief while failing to disclose their significant wrongdoing during this litigation. In fact, Defendants have failed to tell the Court that it was Defendants outrageous conduct which led to Plaintiffs’ inability to meet the deadline claimed by Defendants. Shortly before filing their motion to strike, Defendants had withheld 4,952 pages of selected emails from Plaintiffs until 20 minutes before the last day they claim Plaintiffs were required to submit such data with arguments to the Court in support of the renewed motion for sanctions. Plaintiffs had properly and timely submitted their selection of unredacted emails to Ms. Seeba as required under the protective order.
6
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12.
Moreover, Defendants have failed to tell the Court that they are not in compliance with the Court’s November 13, 2007 Order requiring Defendants to produce all email and other evidence that was subject to Plaintiffs’ original motion. Defendants may once again claim that that’s news to them. However, when the Court reviews the entire record including this affidavit, the affidavit Mr. Engel has filed in joint opposition to Defendants’ Motion to Strike, and the affidavits of Mr. Engel and Affiant with exhibits supporting Plaintiffs’ renewed motion for sanctions, the Court will clearly see the overall picture of serious abuses by public officials and employees and their attorneys before the Court in this litigation.
13.
While it appears on the surface that Defendants completed production of evidence on February 12, 2008, with their much delayed production of City Police Department Crime reports related to Police Statistics on the rental properties owned by St. Paul Public Housing Agency (“PHA”), many documents and reports related to the Police Department’s policing of PHA have not yet been provided to Plaintiffs and were within the scope of documents the Court ordered Defendants to produce independent of Plaintiffs’ ability to obtain PHA documents. See Contract for Supplemental Police Services, attached to Shoemaker Affidavit in Support of Plaintiffs’ Renewed Motion for Sanctions (Doc. No. 183 – Steinhauser, et al), Exhibit 10, p. 4, Section 1, para. B – “targeted areas,” para. C – communications with residents
– crime prevention programs within public housing communities – “storefronts,” “Door Watch programs” and “block clubs”; para. D – police workload data; para. E – police as witnesses in PHA’s evictions or other civil or criminal actions; para. F – meetings between Police and PHA at least quarterly; para. J.1 – police and security reports; para. J.2 – communication between Police Commanders and other police personnel; para. J.3 – prepare progress reports and evaluations of services for review by the PHA, Police Chief, appropriate Deputy Chiefs and Police Department commanders; para. J.7 – reporting non-emergency criminal activities – reports including calls for service [Note: calls for service summaries, SITS, were provided by Defendants]; para. K. 4 – efforts between PHA, SPPD, attorney, and courts, to expedite solutions to specific problems (illegal tenant behavior, violence, etc.) within PHA; para. K.7 – Hi-Rise patrol and response to requests for police services; Section 2, para. A – police department training of residents; para. C – assessments, evaluations or statistical measures showing results achieved by ACOP police services; para. E.5 – substantiated complaints from PHA residents or management concerning police officers behavior; para. F – PHA rules and regulations provided to police officers; Section 4, para. A –communications – incident reports, arrest reports or other public documents; para. B – Reporting – police department will provide reports – may include monthly, quarterly or otherwise as requested by PHA of a wide range of information listed; para. D – evaluations of the program [some reports were
provided by Defendants]; Section 5 – plans of operation; Section 8 – audits on an annual basis.
14.
These additional police documents have not been produced by Defendants to Plaintiffs except for the police service call summaries and certain annual crime reports. Plaintiffs do not have an obligation to repeatedly ask Defendants to finally produce all of these documents because the Court ordered Defendants and Ms. Seeba to produce all such documents.
15.
The City’s documents related to PHA, especially related to the City’ provision since 1991 of supplemental police services to PHA – all above and far beyond the “baseline police services” that every citizen and business receives - relate directly and significantly to Plaintiffs’ claims and Defendants’ claimed defenses and thus should have been produced in full to Plaintiffs years ago. Defendants have consistently claimed that due to alleged behavior problems at Plaintiffs’ properties, Defendants were authorized to target Plaintiffs and others with heavy-handed code enforcement operations designed to “get inside” the properties, apply a “heightened code standard,” cite the properties with “code to the max” violations, condemn and thereby shut down the properties forcing the tenants with “bad behavior” from their homes, remove the grandfathering protections on these rental properties and demand expensive code compliances inspections to modern day codes. Plaintiffs submit that Defendants have selectively targeted Plaintiffs’ scattered site properties using behavior as a pretext or cover for a racist agenda designed to reduce the affordable housing
opportunities in the City primarily for African-Americans thereby frustrating integration and enlargement of African-Americans into the community at large, furthering segregation within the City, and in the end, reducing the number of African-Americans that are willing to stay in the City or even move here from other states. The City’s provision of special police services to PHA is directly related to these claims as PHA has a history of serious tenant, guest and third party behavior problems at its rental properties, in significant volume that even with a platoon of City police officers solely tasked to police PHA rental properties on a daily, weekly, monthly and year after year basis, behavior at PHA properties does not differ significantly from alleged behavior problems in the privately owned low-income rental market. Yet Defendants do not apply the same heavy-handed code enforcement operations on PHA rental properties to shut down and force sale of PHA’s rental properties.
16.
Defendants are in violation of the Court’s November 13, 2007 Order in other respects. Defendants have not produced the large volume of emails Council President Lantry referred to “Rico trash” that one of her emails stated would take her four days to look through. See Engel Affidavit in Support of Renewed Motion for Sanctions. Defendants have not produced all the remaining emails of Councilmember Dan Bostrum.
A review of the representations of Ms. Seeba and her clients in early December 2007 is necessary in order to understand the exact nature of Defendants lack of production of all the subject documentation and the other wrongful conduct by Defendants since then.
18.
Ms. Seeba represented to Plaintiffs’ counsel during the meet and confer on December 7, 2007 and subsequently to the Court and counsel during the December 10, 2007 hearing, that all of the emails of 68 City officials and employees had been restored and were contained within an external hard drive ready for delivery to Plaintiffs (Ms. Seeba had the hard drive in the courtroom for all to see).
19.
Those representations were false. Ms. Seeba and her clients failed to tell counsel during the December 7, 2007 meet and confer, and failed to tell the Court and counsel during the December 10, 2007 hearing that: (a) she and her clients were at that time only producing 14% of the emails of Council President Lantry (hard drive contained a mere 360 megabytes of Lantry’s email data when over 2.5 megabytes was actually available as Plaintiffs subsequently learned); (b) were planning on converting the remaining 86% of Lantry’s emails to a format that would be in violation of the protective order; (c) that Defendants would delay production of that data for over one month even under the tight timelines of the Court’s scheduling order; and (d) that Defendants’ goal was to produce the 86% of Lantry’s emails late and in different format that would certainly prejudice Plaintiffs in reviewing and analyzing such data. That was the plan of Defendants as Council President Lantry has for many years been the primary council member actively involved in all code enforcement matters and who was actively involved in targeting a number of the Plaintiffs.
20.
I learned of this deception only after Mr. Engel inquired of Ms. Seeba as to the identity of a large volume of unexplained data on the January 9, 2008 batch of email data; on February 7, 2008, Ms. Seeba stated that the second batch of emails actually contained further Lantry emails.
21.
As troubling to affiant and Mr. Engel was our discovery that the hard drive held by Ms. Seeba during the December 10, 2007 hearing, contained only 367 megabytes of email data for Councilmember and former Council President Bostrum. It was clear to us that 367 megabytes of email data was not a full production of Bostrum’s emails to Plaintiffs.
22.
Our conclusion that Defendants failed to fully produce all of Bostrum’s emails is supported by a review of the total final production (without counting the “Rico Trash”) of Lantry emails, totaling over 2.5 gigabytes of e-data, as well as by comparing the size of e-data produced by Ms. Seeba and her clients for all seven of the council members.
23.
Defendants delivered the restored email boxes of each of one of the City’s seven council members on December 10, 2007. In that production, Council President Lantry’s restored email box consisted of 360 megabytes of e-data and Councilmember Bostrum’s restored email box consisted of 367 megabytes of e-data.
24.
In the same delivery on December 10, 2007, Defendants produced other officials’ restored email boxes: Councilmember Dave Thune, 2.43 gigabytes; Councilmember Deborah Montgomery, 2.22 gigabytes; Councilmember Jay Benanav, 2.09 gigabytes, Councilmember Lee Helgen, 1.29 gigabytes; and Councilmember Pat Harris, 1.13 gigabytes.
25.
It is reasonable to conclude that former Council President Bostrum would naturally have generated and received a volume of email consistent with his colleagues, Lantry, Thune, Montgomery, Benanav, and Harris and certainly not such a small fraction of the e-data of a less senior council member, Helgen.
26.
The motivation of Defendants not to produce all of the email data of Councilmember Bostrum to Plaintiffs for their review and use in these cases is similar to their motivation to withhold 86% of Lantry’s emails and all of her “Rico trash”.
27.
The City’s definition of a “problem property” has been stated by Defendants as the intersection of behavior and housing code violations. Councilmember Bostrum as a former police officer, with a family member as part of the City’s police department who formerly headed the City’s code enforcement, plays a key role on the City Council on issues related to behavior of city residents and others visiting the City, including at PHA properties, other low-income properties, and Plaintiffs’ former rental properties.
28.
The first batch of Lantry emails produced on December 10, 2007, for review by Plaintiffs’ counsel, was in the format required under the protective order – labeled and in the “plain text or html format in which they were originally sent.” Protective Order, para. 17. One month later, on January 9, 2008, Ms. Seeba and her clients slipped 86% of the remaining Lantry emails into the second batch of e-data produced for the ten employees’ restored email boxes. This was done without any notice to Plaintiffs.
29.
As significant as that deception and non-disclosure, with resulting prejudice – 86% of Lantry emails were thus not available for counsels’ review for one month - Defendants and their counsel also changed the format of Lantry’s emails to further prejudice Plaintiffs.
30.
When Plaintiffs reviewed the remaining 86% of Lantry emails, Plaintiffs discovered that those emails had been changed from the required format as set forth in the protective order, and the format of the first batch of Lantry emails, to an unlabeled format that while searchable was not easily accessible or reviewable as a whole, or in reviewing any individual email. Thus, Plaintiffs’ counsel was unable to conduct any meaningful review of this data.
31.
Logging of any email selected from this second Lantry email batch, as required by the protective order, was virtually impossible under the time constraints of the scheduling order – see para. 19, Protective Order.
32.
Ms. Seeba and her clients purposefully withheld the remaining 86% of Lantry’s emails that Defendants intended to produce – only producing those emails on January 9, 2008, and then without informing Plaintiffs that 2.2 gigabytes of e-data from Lantry was hidden in the data that Ms. Seeba had represented only contained the Kroll Ontrack recovered emails of the ten employees whose emails had been on the police or fire servers.
33.
Once we discovered that Defendants had clandestinely produced 86% of Lantry’s emails (2.2 gigabytes) a month late and in different format, we naturally concluded that Defendants and their counsel were purposefully deceiving both Plaintiffs’ counsel and the Court, and had produced the remaining 86% of Lantry’s emails in an unauthorized format to prejudice Plaintiffs, and that Defendants were withholding a great deal of other e-data from production.
34.
Ms. Seeba had informed Mr. Engel and Affiant on December 7, 2007, that the reason all emails could not be delivered to Plaintiffs was that the email boxes of ten employees could not be recovered by City IT personnel because two computer servers, the police server and the fire department server, were damaged. Ms. Seeba identified the ten employees as follows: (1) Defendant Lisa Martin, code inspector, Problem Properties; (2) Jackie Girling, code inspector; (3) Pat Fish, fire inspector, head of City’s Problem Properties Task Force; (4) Defendant Mike Urmann, senior fire inspector, supervisor; (5) Defendant Barb Cumming, fire inspector; (6) Police Officer Lucia Wroblewski – Problem Properties; (7) Police Officer Mark Wiegel, Problem Properties; (8) Police Officer Mike Carroll – Problem Properties; (9) Ruth Ann Eide, Police Crime Prevention Officer; and (10) Officer Joel Johnson, former driver for Defendant Mayor Randy Kelly.
35.
All of these ten employees that Defendants have claimed had email data that could not be restored by the City’s IT department (and thus such data had to be restored by Kroll Ontrack), had a central role in the “problem properties” operations of the City or were defendants herein. All of their restored emails were delivered a month after the Court hearing of December 10, 2007, and nine days after the Court’s deadline for such production, and produced in a format different from that required under the protective order, making it much more difficult to process as set forth above
Three of the ten employees were defendants herein. Officers Wiegel, Carroll, Wroblewski and Eide were actively involved in the City’s heavy-handed code enforcement policies leveled against low-income housing properties: Officer Wroblewski had written a highly unusual and uncharacteristic report on one of Steinhauser’s rental properties, Officer Wiegel had worked with Officer Keohnen in Dawkins’ Problem Property Unit (“PPU”) where Keohnen was used to gain entry for Dawkins’ inspectors, Lisa Martin was a member of the PPU and was the inspector illegally targeting the rental properties owned by Steinhauser, Meysembourg, Brisson, Harrilal, Johnson, Vues and many other low-income landlords. Pat Fish was the most senior code enforcement officer dealing with claimed “problem properties, and as Chair of the City’s Problem Properties Task Force, was the central leader in the City’s internal communications on such properties.
36.
Officer Johnson as driver for Defendant Mayor Kelly, would have been intimately involved in acting as a conduit of information to and from Mayor Kelly and the Police Department related to behavior issues and police involvement in code enforcement. Additionally, Officer Johnson would have overheard or been an active participant in conversations with the Mayor and certain officials, including Andy Dawkins, and employees and third parties.
37.
Plaintiffs submit that with all of the other wrongful conduct by Defendants herein, it’s no coincidence that the emails of these key players were produced late to Plaintiffs and in a format different from the protective order.
38.
Finally, concerning the emails of Defendant Martin and Jackie Girling, both were members of the Department of Neighborhood Housing and Property Improvement (NHPI) until approximately March of 2007 when NHPI was dissolved and the City created the Department of Safety and Inspections (DSI). At that point, inspectors Martin and Girling were transferred to DSI to work under the newly expanded Certificate of Occupancy program that for the first time covered all single family and duplex homes in the City. Defendants have claimed that they had disaster back up tapes for 36 months starting in December 2005. They claim they were able to restore the emails of 78 officials and employees from 35 of 36 of those backup tapes.
39.
Defendants have not explained why the emails of Martin and Girling that would have been on the NHPI server up until they were transferred to the City’s Fire Preventions Department in early 2007, were not on all of the disaster recovery backup tapes from December 2005 until their transfer. All other NHPI employees and officials on the list of email boxes to be restored, had their emails restored in the format required by the protective order – but not the emails of inspectors Martin and Girling. Their emails were produced in an unlabeled format different from 17 other NHPI inspectors and officials.
40.
Additionally, Ms. Seeba failed to disclose to Plaintiffs for months that the City had deleted all the emails of City employee Susan Kimberly shortly after she left employment with the City in early 2006. Plaintiffs only recently discovered that Ms. Kimberly was actively involved in housing issues for the City’s PED, and working in the Mayor’s office. Her name was on the list of requested email box restoration for an extended period of time yet Defendants failed to disclose that her emails had been destroyed.
41.
Once again, the most recent egregious conduct by Defendants that has prejudiced Plaintiffs was Defendants late delivery of the 4,952 emails to Plaintiffs counsel at 4:40 p.m. on Friday February 22, 2008, just 20 minutes before Plaintiffs’ last day to file their motion for renewed sanctions, Monday February 25, 2008. Twenty minutes before the last day Plaintiffs had to renew their motion, Ms. Seeba finally gave Plaintiffs “clearance” to use any of the 4,952 emails. Until she provided clearance to Plaintiffs under the Protective Order that those 4,952 emails no longer contained any “private data or attorney-client privileged material, those emails were not evidence for Plaintiffs’ renewed motion, could not be considered by Plaintiffs to yet be evidence for their motion, could not be incorporated into the renewed motion with any certainty, and could not be organized for exhibits in support of the renewed motion.
42.
As soon as Plaintiffs received the redacted emails, Plaintiffs diligently worked to review the “cleared emails” for private data, conducted analysis of emails that supported the renewed motion, assembled the evidence, and prepared the affidavits for the renewed motion. Mr. Engel and Affiant filed and served Plaintiffs’ detailed Joint Renewed Motion for Sanctions, and Notice of Motion for Sanctions on February 25, 2008, the date of the deadline in the Court’s recent Order. Plaintiffs’ counsel were unable to file these supplemental affidavits in support of sanctions by Monday, February 25, 2008, because Defendants purposefully delayed providing Plaintiffs’ counsel with the “redacted emails” for use in this motion.
43.
Defendants’ alteration of the evidence, deceptive tactics, false representations, material non-disclosures, purposeful delays in producing evidence, non-production of other key evidence, violations of the protective order and Court’s November 13, 2007, Order, were all designed and carried out in order to further prejudice Plaintiffs at the 11th hour of this extended litigation, shortly before deadlines for filing Plaintiffs’ non-dispositive discovery and renewed sanctions motions. Defendants’ wrongful conduct was designed to also have maximum adverse impact on Plaintiffs ability to oppose Defendants’ motion for summary judgment and to further deny Plaintiffs evidence for trial purposes.
Plaintiffs submit that Defendants motion to strike is further evidence of their abusive litigation tactics, their misuse of the Court’s time and resources, and attempts to continue to avoid a full accounting for their illegal behaviors.
45.
Mr. Engel and I are continuing to review the remaining “email data” provided to us on December 10, 2007 and on January 9, 2008. Due to extremely large volume of this email data (79 gigabytes – approximately 1 ½ million documents, including emails, photo files, miscellaneous other electronic files and duplicates) with over one-third of the data in unlabeled format, we need further time up to 14 days prior to the April 14, 2008, hearing date on the renewed motion for sanctions, to conduct our review, prepare analysis for written submissions to the Court, select the emails to be redacted, wait for Ms. Seeba and her staff to complete redactions and delivery of the emails for our use and then to process the redacted emails for use in this renewed motion. Plaintiffs request a modification of the protective order requiring counsel for Defendants to turn around the selected emails with haste so that Plaintiffs are not met with additional prejudicial delay.
46.
As part of Plaintiffs’ response to Defendants’ motion to strike now before the Court, Plaintiffs incorporate the Affidavits of Mathew Engel and Affiant submitted in support of Plaintiffs’ renewed motion for sanctions.
Plaintiffs request that the Court look at the overall conduct of Defendants and their counsel and pursuant to Plaintiffs renewed motion for sanctions, incorporate the Court’s finding herein for further sanctions against Defendants for their conduct that necessitated this motion before the Court and Plaintiffs’ response to said motion, and for Defendants actions purposefully causing delays, material non-disclosures, significant alteration of key evidence, deceptive conduct in this litigation.
47.
I am also requesting leave of the Court to file further supplemental affidavits in support of Plaintiffs’ renewed motion for sanctions up to 14 days prior to the April 14, 2008 hearing scheduled on the renewed motion.
48.
Finally, Plaintiffs’ second non-dispositive motion also scheduled for hearing August 14, 2007, relates to a request by Plaintiffs for authorization to update the liability opinions of the parties’ experts as a result of almost 50 depositions that occurred following the deadlines for submission of said expert reports by the parties in 2006. Additionally, Plaintiffs were able to discover hundreds of thousands of pages of significant documents and inspection records since those initial reports were prepared. Those expert reports should be updated. Expert damage reports should also be updated within a reasonable period prior to trial in this matter.
There maybe copy errors.
UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
Frank J. Steinhauser, III, et. al., Civil No. 04-2632
JNE/SRN
Plaintiffs,
v. JOINT MEMORANDUM OF LAW IN OPPOSITION TO DEFENDANTS’ MOTION TO STRIKE
City of St. Paul, et. al.,
Defendants.
Sandra Harrilal, et. al., Civil No. 05-461
JNE/SRN
Plaintiffs,
v.
Steve Magner, et. al.,
Defendants.
Thomas J. Gallagher, et. al., Civil No. 05-1348
JNE/SRN
Plaintiffs,
v.
Steve Magner, et. al.,
Defendants.
Plaintiffs in Frank J. Steinhauser, III, et al., Sandra Harrilal and Steven R. Johnson in Sandra Harrilal, et al., and Plaintiffs in Thomas J. Gallagher, et al., through their undersigned
counsel, submit this Joint Memorandum of Law in Opposition to Defendants’ Motion to Strike Plaintiffs’ Non-Dispositive Motion Hearing from the Court’s Calendar.
INTRODUCTION
Plaintiffs filed a motion to amend the scheduling order on February 11, 2008, and a renewed motion for sanctions on February 25, 2008. Defendants filed a motion to strike Plaintiffs’ non-dispositive motion hearing from the Court’s calendar, on the grounds that Plaintiffs have not filed a memorandum of law in support of either motion, or, in the alternative, that the Court consider the matter submitted without oral argument, and deny Plaintiffs’ motions with prejudice.
Plaintiffs submit that a memorandum of law has already been filed in relation to the renewed motion for sanctions, a memorandum that fully briefed for the Court and parties the applicable law on Plaintiffs grounds for sanctions and the issue of prejudice as set out by the Court in its November 13, 2007 Order and set out Plaintiffs’ arguments related to the law and facts. The Court directed that at the completion of Defendants’ production of all documents subject to the original sanctions motion, Plaintiffs could then renew their motion for sanctions and present evidence by way of affidavits to show evidence of prejudice.
Plaintiffs were unable to file supplemental affidavits by February 25, 2008, as a direct result of Defendants’ deliberate delay in “clearing” 4,952 email documentation of “private data” under the protective order, redacted emails that Plaintiffs would need to use as part of their renewed motion for sanctions, and deliberate failure to deliver the email evidence until
20 minutes before the last day Defendants’ claimed Plaintiffs were required to file all their motion papers and supporting documents.
Defendants should not be allowed to profit by their abusive litigation tactics and last minute production of redacted emails, and the Court should deny Defendants’ motion to strike Plaintiffs’ Non-Dispositive Motions from the calendar and award fees and costs in favor of Plaintiffs.
The Court’s November 13, 2007 Order controls this dispute and requires that the Court deny the Defendants’ motion. The Court should consider all the evidence Plaintiffs have submitted in support of their renewed motion for sanctions and allow Plaintiffs to file further submissions as appropriate in light of the Affidavits submitted by Plaintiffs herein and in support of Plaintiffs’ renewed Motion for Sanctions.
Most significantly to this motion, Defendants are in violation of the Court’s November 13, 2007 Order requiring them to complete production of the all of the restored emails and to produce all of the City’s documents related to PHA, before Plaintiffs would be required to file their renewed motion for sanctions.
Plaintiffs have not completed production of all relevant evidence subject to the Court’s November 13, 2007 Order requiring such production and therefore Plaintiffs’ renewed motion for sanctions has actually been improperly forced ahead of schedule by Defendants baseless motion, all to Defendants’ advantage in their summary judgment motion filings next week.
Plaintiffs submit that under the circumstances, when considering all of the directions set forth by the Court in its November 13, 2007 Order and the serious and repeated discovery abuses by Defendants as outlined more fully in the affidavits of Plaintiffs’ counsel, the filing of the renewed motion for sanctions on February 25, 2008 was timely, and the subsequent filings by Plaintiffs of supporting affidavits and exhibits proper in light of all the circumstances.
Moreover, Defendants have suffered no prejudice by the timing of Plaintiffs’ filing of their motion papers.
Finally, Plaintiffs are seeking in their second non-dispositive motion to obtain permission to have the liability experts opinions supplemented in light of the almost 50 additional depositions that were taken following the Court deadlines in 2006 for submission of those initial opinions. Hundreds of thousands of pages of documents have been discovered by Plaintiffs since 2006 and produced to Plaintiffs and copied to Defendants. Plaintiffs also request that the Court set a reasonable deadline for supplementation of expert opinions related to damages so that those experts’ opinion are up to date prior to trial.
FACTS
Plaintiffs filed a Joint Motion for Sanctions on August 6, 2007, (05-CV-1348, ECF Document No. 73), memorandum of law setting forth the applicable cases on the issues of spoliation and non-production (05-CV-1348, ECF Document No. 85), and affidavits and exhibits (05-CV-1348, ECF Document Nos. 86 and 87). The Court heard argument from counsel on August 20, 2007. (Engel Aff. para. 2).
Plaintiffs are renewing their identical motion for sanctions and relying on the same law and the same memorandum of law in support of their motion for sanctions. Plaintiffs have
done exactly what the Court requested in its November 13, 2007 Order. They have submitted evidence by affidavits and exhibits to show the Court the prejudice suffered by Plaintiffs resulting from the loss of alleged relevant evidence and the evidence of more recent discovery abuses and further spoliation since the August 2007 hearing. (Engel Aff. para. 3) (Shoemaker Aff. paras. 12-40).
Defendants first gave Plaintiffs’ counsel clearance to use 4,952 pages of emails and other documents at 4:40 p.m. on February 22, 2008, one business day before the deadline to file Plaintiffs’ renewed motion for sanctions. (Engel Aff. para. 4). Plaintiffs were not responsible for this delay in any respect as Plaintiffs properly and timely submitted email evidence to Defendants’ counsel following belated delivery of the email evidence to Plaintiffs. (Shoemaker Aff. para. 11).
What the Court and Plaintiffs’ counsel did not contemplate at the time of the February 1, 2008 Order revising the scheduling deadlines herein, was Defendants’ continued failure to comply with the Court’s order to complete production of all City documents related to PHA and all email documentation in redacted format within a sufficiently reasonable amount of time to allow Plaintiffs’ to renew their motion. Given how the email production process has unfolded in this case, under Ms. Seeba’s analysis, after she finally cleared for use 4,952 pages of e-data on February 22, 2008, Plaintiffs’ counsel would have been forced to incorporate the redacted pages into the 4,952 page database (no simple or quick task), review all that data for any inadvertently disclosed “private data,” conduct an analysis of said redactions and evidence for use in the renewed motion, incorporate selections from 4,952 pages into
Plaintiffs’ renewed motion, prepare affidavits and exhibits in support of the renewed motion and file the entire motion all in one day. (Engel Aff. para. 6).
Furthermore, at the time of the Stipulation and Order setting new deadlines for filing motions, Plaintiffs could not have known the exact nature or full extent of the final cleared, “redacted” copies of emails under the Protective Order, or what additional “City documents” would not have been produced by the City, or would be produced by the City, or discovered in PHA files. (Engel Aff. para. 17).
Defendants have failed to tell the Court that they are not in compliance with the Court’s November 13, 2007 Order requiring Defendants to produce all email and other evidence that was subject to Plaintiffs’ original motion. (Shoemaker Aff. paras. 12, 13-15 (City documents related to PHA not fully disclosed), 16 – 26 (Councilmember Lantry’s and Bostrum’s email data not fully disclosed), 40 (destruction of all emails of City employee Susan Kimberly and non-disclosure of same).
After such egregious delay by Ms. Seeba and Defendants, she and her clients now come to this Court, with unclean hands, demanding that the Court strike Plaintiffs’ non-dispositive motion and renewed motion for sanctions and evidence that shows a long standing, deliberate policy and practice in this litigation of discovery abuses that have prejudiced the Plaintiffs over the past year. (Engel Aff. para. 10).
ARGUMENT
1. Plaintiffs filed their motion and notice of hearing on the February 25, 2008 filing deadline, Local Rule 7.1(a)(1) allows the moving party to file and serve the affidavits and exhibits at least 14days prior to hearing.
Local Rule 7.1(a)(1) applies to non-dispositive motions and states:
(1) Moving Party; Supporting Documents; Time Limits. No motion shall be heard by a Magistrate Judge unless the moving party files pursuant to LR 5.2 and serves the following documents at least 14 days prior to hearing: (A) Notice of Motion; (B) Motion; (C) Proposed Order; (D) Affidavits and Exhibits, and (E) Memorandum of Law (emphasis added).
The 1999 Advisory Committee’s Note to LR 7.1(b)(2) states:
“Supporting Affidavits. Rule 7.1(b)(2) specifically contemplates that the factual basis for a dispositive motion will be established with affidavits and exhibits served and filed in conjunction with the initial motion and the responding party’s memorandum of law.”
No such notation in the Advisory Committee notes is made to this effect as applied non-dispositive motions.
The Courts’ February 1, 2008 Order reads as follows: “2. All non-dispositive motions, including any motion for discovery sanctions, shall be filed by 2-25-08; 3. Dispositive motions filing deadline shall be extended to March 11, 2008, which is 45 days prior to the rescheduled dispositive motion hearing date of April 25, 2008” (emphasis added).
The Stipulation to Amend Scheduling Order was drafted with specific reference to Defendants’ 45 day time period as required under LR 7.1, as Defendants had previously scheduled their dispositive motion, having filed the Motion for Summary Judgment on December 5, 2006 (05-CV-1348, ECF Document No. 27), with subsequent amendments to the scheduling order.
At the time of this Stipulation and Order, Plaintiffs could not have known the exact nature or full extent of the final cleared, “redacted” copies of emails under the Protective
Order, or what additional “City documents” would not be produced by the City by the time the non-dispositive motion deadline came, or what additional “City documents related to PHA” would be discovered to have been in City files and not produced.
Defendants claim that it is clear that the stipulation and order contemplated non-dispositive motions followed by dispositive motions, not the reverse. See Defendants’ Memo in Support of Motion to Strike at p. 2, footnote 1.
However, what Plaintiffs and the Court did not contemplate at the time of the February 1, 2008 Order was Defendants’ continued failure to comply with the Court’s order to complete production of all email data, all City documents related to PHA, and all email reviewed under the protective order restrictions within a sufficiently reasonable amount of time to allow Plaintiffs’ to renew their motion.
The reason the Stipulation and Proposed order were drafted without the 14 day calculation for non-dispositive filings, and contrary to the drafting of the dispositive motion deadline that expressly provided for a deadline of filing 45 days prior to hearing date, was that both Plaintiffs’ and Defendants’ counsel knew that obtaining a hearing date for a renewed motion for sanctions prior to the completion of the email production process and completion of discovery would be a shot in the dark and would most likely lead to rescheduling and serious inconveniences to the Court in calendaring hearings in all cases.
2. Because Plaintiffs’ motion for sanction is a renewed motion and a memorandum of law is already on record with the Court, Plaintiffs’ are allowed to file affidavits and exhibits in support of their renewed motion for sanctions especially when Defendants’ conduct prohibited Plaintiffs from being able to meet the deadline.
Local Rule 7.1(d) addresses “Failure to Comply” and states:
(d) Failure to Comply. In the event a party fails to timely deliver and serve a memorandum of law, the Court may strike the hearing from its motion calendar, continue the hearing, refuse to permit oral argument by the party not filing the required statement, consider the matter submitted without oral argument, allow reasonable attorney's fees, or proceed in such other manner as the Court deems appropriate (emphasis added).
Plaintiffs filed a Joint Motion for Sanctions on June 20, 2007, (05-CV-1348, ECF Document No. 73), memorandum of law setting forth the applicable cases on the issues of spoliation and non-production (05-CV-1348, ECF Document No. 85), and affidavits and exhibits (05-CV-1348, ECF Document Nos. 86 and 87). The Court heard argument from counsel on August 20, 2007.
Plaintiffs are renewing their motion for sanctions and relying on the same law and same memorandum in support of their motion for sanctions. Plaintiffs are doing exactly what the Court requested in its November 13, 2007 Order; they are submitting evidence by affidavit and exhibit to show the Court prejudice to Plaintiffs resulting from the loss of alleged relevant evidence.
Defendants’ counsel did not “clear” for use 4,952 pages of e-data until February 22, 2008, just twenty (20) minutes before the last day to file. This is uncontested by Defendants’ counsel. Under Defendants reading of the rules, Plaintiffs’ counsel would then have been forced to incorporate the redacted pages into the 4,952 page database, review all 4,952 emails for any inadvertent disclosures of “private data,” conduct an analysis of said redactions, incorporate selections from 4,952 pages into Plaintiffs’ renewed motion, and prepare affidavits and exhibits in support of the renewed motion and file all motion papers in one day.
3. Because of the nature of the restoration and production of email process and the City’s delay in producing redacted emails, the Plaintiffs’ March 5, 2008 filings should be allowed.
Defendants’ purposeful delay in providing Plaintiffs’ counsel with the cleared, “redacted emails” for use in this motion until 4:40 p.m. Friday, February 22, 2008, resulted in Plaintiffs’ counsel being unable to file their supplemental affidavits in support of sanctions by Monday, February 25, 2008.
Ms. Seeba’s conduct in finally producing 4,952 pages of emails and other documents cleared for use under the data privacy act at the last minute on February 22, 2008, essentially “tied the hands” of Plaintiffs’ counsel in their final preparation for their renewed motion for sanctions. Plaintiffs’ counsel made every possible effort to file their affidavits and exhibits in support of their renewed motion for sanctions in an expedited manner.
Plaintiffs’ counsel were able to provide the Court with the evidence it requested in its November 13, 2007 order, just nine days after February 25, 2008, when Ms. Seeba claims the memorandum of law was due, and just 12 days after February 22, 2008, when Ms. Seeba first gave clearance to use 4,952 pages of redacted electronic data.
Moreover, Defendants cannot point to any prejudice that they suffered from a short alleged delay in said filing, especially when they were responsible for the delay and they have been in violation of the underlying Order of the Court from November 2007.
Finally, the Court’s November 13, 2007 Order controls this dispute and requires that the Court deny the Defendants’ motion. The Court should consider all the evidence Plaintiffs have submitted in support of their renewed motion for sanctions and allow Plaintiffs to file further submissions as appropriate in light of the Affidavits submitted by Plaintiffs herein and in support of Plaintiffs’ renewed Motion for Sanctions.
Because of the nature of the restoration and production of email process and the City’s delay in producing redacted emails, the Plaintiffs’ March 5, 2008 affidavits and exhibits should be allowed and considered by the Court in Plaintiffs’ renewed motion for sanctions.
CONCLUSION
For these reasons, and because of Defendants’ consistent discovery abuses, misrepresentations, material non-disclosures, violation of the protective order, continued failure to produce the evidence that was ordered produced, all as detailed in the Affidavit of Matthew A. Engel and the Affidavit of John R. Shoemaker in Opposition to Defendants’ Motion to Strike, Defendants should not be allowed to profit by their abusive litigation tactics, illegal conduct and last minute production of redacted emails all to Plaintiffs’ prejudice.
The Court should deny Defendants’ motion to strike Plaintiffs’ Non-Dispositive Motions from the calendar and award Plaintiffs their attorney’s fees and costs in having to respond to this motion.
Plaintiffs request that the Court deny Defendants’ motion to strike. Plaintiffs also request that the Court accept Plaintiffs’ recent filings in support of the renewed motion for sanctions and motion to amend the scheduling order to allow Plaintiffs’ to file supplemental expert opinions.
Plaintiffs also request that that the Court allow Plaintiffs to continue to file all motion
documents supporting the motion related to supplementation of expert opinions and further affidavits in support of the renewed motion for sanctions, up to 14 days prior to the April 14, 2008 hearing, and that the Court hear Plaintiffs’ non-dispositive motions on April 14, 2008.
Finally, Plaintiffs request that the Court allow Plaintiffs to supplement the liability experts’ opinions and that the Court set a reasonable deadline for supplementation of expert opinions related to damages so that those experts’ opinion are up to date prior to trial.
Respectfully submitted,
SHOEMAKER & SHOEMAKER
