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Zane Seipler v. Captain Anton Cundiff

October 18, 2011

ZANE SEIPLER,
PLAINTIFF,
v.
CAPTAIN ANTON CUNDIFF, ET AL.,
DEFENDANT.



The opinion of the court was delivered by: Magistrate Judge P. Michael Mahoney

Judge Frederick Kapala

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 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.

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 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 "http://www.realmcsoexposed.blogspot.com." According to Exhibit B of Defendants' supplemental motion, Google responded with information apparently indicating that the email address "sknout4good@gmail.com" 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 "sknout4good@gmail.com" was created on November 2, 2009 listing Plaintiff's alleged personal email ("zaneseipler@yahoo.com") as a secondary email address. Five minutes later, "sknout4good@gmail.com" 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 "shadow.mcsd@gmail.com", 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 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 ("sknout4good@gmail.com") 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 ...


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