Seipler v. Cundiff et al

Filing 316

MEMORANDUM Opinion and Order Signed by the Honorable P. Michael Mahoney on 10/18/2011:(pg, )

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
WESTERN DIVISION
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ZANE SEIPLER,
Plaintiff,
vs.
CAPTAIN ANTON CUNDIFF, et al.,
Defendant.

Case No. 08 C 50257
Judge
Frederick Kapala
Magistrate Judge
P. Michael Mahoney

MEMORANDUM OPINION AND ORDER
This case involves claims that Plaintiff was harassed and eventually terminated from his
employment with the McHenry County Sheriff’s Office (“MCSO”) in retaliation for asserting
First Amendment rights. The parties in this case have been engaged in discovery since March of
2009, and the discovery process is nearing its close. Before the court are seven motions
regarding discovery or sanctions that have been filed by the parties. The court has considered
the materials submitted by the parties and will now rule.
I.

Defendants’ Motion for Sanctions and Supplemental Motion for Sanctions

Plaintiff’s case concerns allegations that he was discriminated and retaliated against by
his employer, the McHenry County Sheriff’s Office (“MCSO”), because of his complaints about
racial profiling within the Department. Defendants allege that Plaintiff or Plaintiff’s counsel has
violated a court order regarding discovery. A similar allegation was made by Plaintiff earlier in
the lawsuit.
On June 13, 2011, Defendants claimed in a motion for sanctions for violation of a court

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order that Plaintiff or Plaintiff’s counsel somehow caused materials designated as confidential by
an agreed protective order to be published on a blog identified as
http://www.realmcsoexposed.blogspot.com. The documents published included more than 50
pages from disciplinary files of employees of the MCSO that had been exchanged through
discovery and specifically marked as confidential through an amended protective order signed by
the court on August 10, 2010. Defendants’ allegation that it was Plaintiff or Plaintiff’s counsel
who published the documents was supported by their belief that the documents on the blog
contained certain identifying marks or redactions made by Defendants’ counsel that were
identical to those contained on documents provided solely to Plaintiff’s counsel. In other words,
Defendants allege that Defendants’ counsel, Plaintiff’s counsel, and Plaintiff were the only
parties to posses the documents that showed up on the blog. By their motion, Defendants asked
the court to order Plaintiff, Plaintiff’s counsel, or both, to pay for the reasonable attorney’s fees
associated with Defendants’ motion, and further asked that Plaintiff be prohibited from using any
of the disclosed disciplinary materials as evidence in Plaintiff’s case.
In response to Defendants’ June 13, 2011 motion, Plaintiff and Plaintiff’s counsel denied
that evidence existed tying them to the blog in question; instead suggesting that it was a person
related to the Defendants who published the documents. Plaintiff provided an affidavit stating
that he had no knowledge of the owner of the website http://realmcsdexposed.blogspot.com, did
not disseminate the documents in question to any individuals, and did not know how the
documents had been obtained by the blog’s owner. Plaintiff’s counsel, attorneys Horowitz and
Bunsal, each provided similar affidavits. However, counsel’s affidavits listed the website
http://mcsdexposed.blogspot.com.

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Defendants continued to pursue the matter, and filed a supplemental motion for sanctions
on August 11, 2011. The reason for the supplemental motion was that Defendants had received
responses to subpoenas issued to Google and Yahoo! concerning the owner of “The Real MCSO
Exposed” blog and various email addresses tied to Plaintiff. Based on the newly obtained
evidence, Defendants now seek sanctions in the form of dismissal of Plaintiff’s case with
prejudice, plus fees and costs associated with their motion. In response to the supplement,
Plaintiffs argue that Defendants’ evidence relates to a different website than the one alleged to
have posted the confidential documents.
Rule 37 of the Federal Rules of Civil Procedure allows for the dismissal of proceedings,
in whole or in part, based on a failure to obey a discovery order of the court. FED. R. CIV. P.
37(b)(2)(C). The court also has an inherent authority to dismiss a case in order to rectify abuses
to the judicial process. Dotson v. Bravo, 321 F.3d 663, 667 (7th Cir. 2003). The sanction of
dismissal is severe relative to the sanctions available under Rule 37. Bryden v. Boys and Girls
Club of Rockford, No. 09 C 50290, 2011 WL 843907, at *2 (N.D. Ill.Mar. 8, 2011). Dismissal
based on the court’s inherent authority is perceived as a “draconian” measure that should be
employed sparingly. Dotson, 321 F.3d at 667. The court should consider “the egregiousness of
the conduct in question in relation to all aspects of the judicial process.” Id. (quoting Barnhill v.
United States, 11 F.3d 1360, 1368 (7th Cir. 1993)). The court may impose the sanction of
dismissal “where it finds flagrant bad faith and callous disregard for litigation responsibilities on
the part of a party or its counsel.” Bryden, 2011 WL 843907, at *2. The Seventh Circuit has not
yet resolved whether the court’s finding must be premised on clear and convincing evidence or
simply a preponderance. Watkins v. Nielsen, 405 Fed. Appx. 42, 45 (7th Cir. 2010); see also

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JFB Hart Coatings, Inc. v. AM General LLC, 764 F.Supp.2d 974, 981 (N.D. Ill. Feb. 8, 2011).
The allegations in Defendants’ motion are based around a particular website, which they
refer to as “The Real MCSO Exposed” blog. In their briefs on this matter, the parties have
repeatedly confused and misstated the web address allegedly linked to this website, making it
difficult to delineate between mere mistake and honest disagreement. Web addresses, like
physical addresses or telephone numbers, can lead to entirely different locations based on a
single character change. As has been observed in cybersquatting cases, it is not uncommon for
parties to deliberately set up web addresses substantially similar to competitors in order to
confuse or misdirect. See, e.g., uBID, Inc. v. GoDaddy Group, Inc., 623, F.3d 421 (7th Cir.
2010). The court will begin by attempting to sort out the various web addresses alluded to by
each party.
In Defendants’ original motion, they point to alleged evidence of Plaintiff’s disdain for
the protective order entered in this case from a blog post made on May 2011. Defendants cite to
and attach exhibits from Plaintiff’s alleged website, which is listed as
“http://mcsdexposed.blogspot.com.” The motion goes on to describe the website that the
confidential documents were posted on as “http://www.realmcsoexposed.blogspot.com.” In
response, Plaintiff and Plaintiff’s counsel submitted the above-described affidavits that
referenced “http://realmcsdexposed.blogspot.com” and “http://mcsdexposed.blogspot.com,”
respectively. Plaintiff’s response also references “http://shadowmcsd.blogspot.com/” as another
location where confidential documents were being posted.
Attached to Defendants’ supplemental motion was a subpoena to Google requesting
documents regarding the user account associated with

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“http://www.realmcsoexposed.blogspot.com.” According to Exhibit B of Defendants’
supplemental motion, Google responded with information apparently indicating that the email
address “[e-mail]” was used to created the blog responsive to the subpoena
request. Plaintiff allegedly acknowledged that he created this email address. Google’s response
also references a “User’s Trashed Blog” named “The Real MCSD” with a web address of
“http://mcsoexposed.blogspot.com.” In an apparent attempt to point out this discrepancy,
Plaintiff’s response to the supplemental motion references “www.mcsdexposed.com” as being
different from “www.realmcsdexposed.com.”
Finally, in reply, Defendants assert that their evidence from Google and Yahoo! tie two
of Plaintiff’s email addresses to “http://www.realmcsoexposed.blogspot.com.” Defendants
assert that the email address “[e-mail]” was created on November 2, 2009
listing Plaintiff’s alleged personal email (“[e-mail]”) as a secondary email
address. Five minutes later, “[e-mail]” was used to create the blog
“http://www.realmcsoexposed.blogspot.com”. Defendants have evidence indicating that both
email addresses and the blog have been logged in to from the same IP address, 98.206.53.78.
Defendants also attach information from a second subpoena to Google indicating that the email
address “[e-mail]”, which is allegedly affiliated with the second blog that
posted confidential documents (“http://shadowmcsd.blogspot.com/”), was created on June 18,
2011 from the same IP address.
In summary, the parties have fully briefed two motions regarding this issue. Their briefs
have referred to no fewer than seven distinct web addresses. Defendants’ arguments and
exhibits seem to allege that Plaintiff is or was behind at least four different blogs. At least two of

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the blogs have posted confidential documents that apparently originated through discovery in
this case. However, Defendants’ task of proving that the confidential documents were posted to
the blogs by Plaintiff is more difficult. One particular IP address has been linked to the three
email addresses and the two accused blogs. This is circumstantial evidence that it was Plaintiff
who actually posted the documents. According to Google, Plaintiff’s email
(“[e-mail]”) was created from a different IP address in 2009. No IP address
was listed for the 2009 creation of “http://www.realmcsoexposed.blogspot.com”. The blog
postings of confidential documents from June 6, 2011 indicate that they were “Posted by Vera”,
while the similar June 2, 2011 postings were “Posted by Admin”, though the evidence from
Google appears to list May 27, 2011 as the most recent log-in activity for the Blogger.com
account associated with Plaintiff’s email. In short, there is circumstantial evidence that Plaintiff
is or has been involved with the blogs in question, and circumstantial evidence that it was
Plaintiff who posted the confidential documents to the particular blog.
Plaintiff does not appear to have directly responded to Defendants’ claims due to the
varying web addresses listed in his briefs and affidavits attached thereto. The court cannot make
a determination as to which of the various web addresses represent real websites relevant to
Defendants’ motions, which serve as deliberately evasive responses or confusing distractions,
and which are the product of simple error on behalf of the parties.
It is unfortunate that on multiple occasions non-parties to this litigation appear to have
been affected by the release of documents intended to be kept confidential. As the court found
when deciding Plaintiff’s motion for a rule to show cause filed on January 18, 2011, there is no
definitive evidence of an intentional violation of a protective order or discovery order in this

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case. The court finds that the circumstantial evidence accompanying Defendants’ allegations
rises to a level where the sanction of dismissal merits consideration. The potential for a
dispositive ruling requires these motions to be transferred to the District Court for further ruling.
See Egan v. Freedom Bank, et al., No. 10-1214, slip. op. at 11 (7th Cir. Oct. 6, 2011). Should
the District Court determine that this motion does not merit dismissal of the case, it may of
course decide if any sanction is appropriate or return the matter to the Magistrate Judge for
further consideration.
II.

Plaintiff’s Motion to Bar Testimony

Plaintiff’s motion to bar the testimony of recently disclosed witnesses from Google and
Yahoo! is also transferred to the District Court. This motion relates directly to Defendants’
allegations as to the release of documents. The District Court may or may not find further
testimony on this matter useful or relevant in considering Defendants’ potentially dispositive
motion.
III.

Plaintiff’s Motion to Take the Depositions of Defense Counsel, Supplemental

Motion, and Motion to Compel
Plaintiff filed this motion alleging that Defendants’ counsel participated in an internal
investigation into racial profiling within the McHenry County Sheriff’s Department. The parties
seem to agree that the discovery process from this case served as the impetus for the internal
investigation. The investigation itself has become the subject of contention throughout the
discovery process in this case. After certain information about the marking of racial profiling
information on MCSO traffic tickets came to light, Defendant Nygren in his role as Sheriff,
ordered that the investigation be conducted by a commander and a sergeant from the MCSO.

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During the depositions of the commander and sergeant, each revealed that counsel for the
Defendants, namely Mr. Sotos and Ms. Barton, assisted in the investigation in some fashion.
Counsel for Defendants admit to having had an advisory role with the MCSO as it conducted the
investigation. Plaintiff now believes that Defense counsels’ participation in the investigation
warrants an order allowing him to take their depositions as a part of discovery in this case.
Depositions of opposing counsel have the potential to create numerous problems in the
litigation process. “Courts have historically looked with disfavor on attempts to depose
opposing counsel.” WMH Tool Group, Inc. v. Woodstock Intern., Inc., 2009 WL 89935, *1
(N.D. Ill. Jan. 14, 2009) (quotations omitted). Such relief “should only be employed in limited
circumstances.” Shelton v. Am. Motors Corp., 805 F.2d 1323, 1327 (8th Cir. 1986). In Shelton,
the Eighth Circuit enumerated a standard that limits the deposition of trial counsel to
circumstances where the party seeking the deposition has shown that: “(1) no other means exist
to obtain the information other than to depose opposing counsel; (2) the information sought is
relevant and not privileged; and (3) information is crucial to the preparation of the case.”
Shelton, 805 F.2d at 1327. These factors have been interpreted to require “exhaustion of all
other reasonable alternatives before a party should seek to depose his opponent’s attorney.” M
& R Amusements Corp. v. Blair, 142 F.R.D. 304, 305 (N.D. Ill. 1992).
Courts within this district have in many instances relied on the factors from Shelton in
evaluating requests to depose trial counsel. See, e.g., Marco Island Partners v. Oak Dev. Corp.,
117 F.R.D. 418, 420 (N.D. Ill. 1987). There have been circumstances, however, where courts
have found that the Shelton factors do not apply because the topics of deposition relate to a
“prior underlying matter that is relevant to the current litigation.” WMH Tool Group, Inc., 2009

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WL 89935 at *2 (citations omitted). Here, the court finds that Defense counsels’ involvement in
the internal investigation is a current matter that is relevant to this case. The court will apply the
Shelton factors.
The court finds that the relevant information Plaintiff is seeking is available from other
sources and has already been produced. Specifically, Plaintiff has a copy of the report from the
internal investigation. Plaintiff has had the opportunity to depose Defendant Nygren and the two
individuals charged with conducting the investigation. The court finds that Plaintiff has had
ample opportunity to conduct discovery on the internal investigation. For this reason, Plaintiff’s
motion does not satisfy the first prong of the Shelton factors. Plaintiff’s motion for
miscellaneous relief seeking the depositions of opposing counsel is denied.
Plaintiff also filed a motion to compel and supplemental motion to compel discovery as
to the communications between defense counsel and their clients relating to the internal
investigation. The reason Plaintiff seeks these communications is to support his motion to
compel the depositions of opposing counsel, and potentially, to prepare for opposing counsels’
depositions. For the same reasons discussed herein, Plaintiff’s motion and supplemental motion
to compel are denied.
IV.

Defendants’ Motion to Re-Convene the Deposition of Scott Milliman

Defendants filed a motion to re-convene the deposition of Scott Milliman (“Milliman”).
Milliman is a recently terminated deputy of the MCSO who gave a deposition in this case on
November 23, 2010. The parties held a continued deposition with Milliman on August 18, 2011.
At the continued deposition, Milliman refused to answer certain questions about testimony he
gave at the initial deposition regarding an FBI investigation initiated by his complaints.

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Milliman also refused to discuss the details of any conversation he may have had with a
psychologist or psychiatrist. Milliman’s counsel made objections based on relevance and
claimed the “law enforcement privilege.”
Milliman filed complaints with the FBI in 2007 regarding Defendant Nygren being
engaged in certain criminal conduct. At a deposition, Milliman explained the nature of his
complaints to the FBI. Defendants want to go into more detail with Milliman.
The court notes that Defendants were able to learn about the existence and general nature
of Milliman’s complaints to the FBI during his deposition. Defendants were able to follow-up
with questions about the types of criminal activity Milliman alleged occurred. Defendants were
able to subpoena information from the FBI that reveals some of the circumstances surrounding
the investigation based on Milliman’s information. The additional questions Defendants want
answered are very specific, such as the names of the FBI agents involved in conversations, and
what specifically Milliman told the agents. Defendants similarly asked what Milliman told a
psychiatrist or psychologist regarding his allegations.
Generally, a deponent should proceed to answer a question during a deposition even after
an objection has been noted on the record. FED. R. CIV. P. 30(c)(2). A deponent may be
instructed not to answer only when necessary to preserve a privilege, to enforce a limitation
ordered by the court, or to present a motion under Rule 30(d)(3). Id. Rule 30(d)(3) of the
Federal Rules of Civil Procedure allow the court to terminate a deposition or limit its scope and
manner as provided in Rule 26(c). FED. R. CIV. P. 30(d)(3). Counsel for the deponent asserted
the “law enforcement privilege” at the deposition, and also objected as to the relevance of the
questions. The transcript reveals that Plaintiff’s counsel offered to contact the court to resolve

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the dispute, but Defense counsel opted to move on to other questions. Defendant now argues
that the “law enforcement privilege” could not be asserted by the deponent, and that a relevance
objection does not justify an instruction not to answer. Based upon the circumstances, the court
takes deponent’s counsel’s attempts to limit testimony as a motion for a Rule 26(c) protective
order, and will evaluate it as such.
There are a number of circumstances surrounding Milliman’s continued deposition that
the court will consider. First, Milliman is a non-party to this case. He was accompanied to the
deposition by his personal attorney, who had not appeared in this case prior to the deposition.
Second, Milliman was apparently placed on administrative leave and eventually terminated by
the MCSO. This termination may have been related to his testimony. Third, Milliman and
Defendants acknowledge that the circumstances could at least potentially lead to future
litigation. Finally, the FBI materials submitted as a sealed exhibit contained redactions as to
certain details. The Assistant United States Attorney on behalf of the FBI asserted an
investigatory privilege over the contents of reports and certain information provided by
Milliman. It appears that the deponent’s counsel was attempting to comply with the spirit of a
law enforcement privilege in good faith. Objections were lodged to questions about the specific
names of FBI agents, locations of events, and specific investigative methods being used in a
potentially ongoing investigation.
The court takes Milliman’s objections as a motion for a protective order under Rules
37(d)(3) and 26(c), and that order is granted. The court finds that counsel for Defendants have
already explored all possible relevant areas to a sufficient degree. Concluding Milliman’s
deposition at this time also alleviates the concern that the focus of his deposition may turn away

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from this case and toward potential litigation between Milliman and the MCSO. For the
foregoing reasons, Defendants’ motion to compel is denied.

E N T E R:

_______________________________________
P. MICHAEL MAHONEY, MAGISTRATE JUDGE
UNITED STATES DISTRICT COURT

DATE: October 18, 2011

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