UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
Frank J. Steinhauser, III, et al., Civil No. 04-2632
JNE/SRN
Plaintiffs,
v. PLAINTIFFS’ JOINT
RENEWED MOTION FOR
City of St. Paul, et al., SANCTIONS
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 the above-referenced cases, with the exception of Plaintiffs Bee Vue and Lamena Vue, respectfully renew their motion for sanctions against Defendants herein pursuant to the Court’s inherent power and pursuant to Rule 37 of the Federal Rules of Civil Procedure.
Case 0:04-cv-02632-JNE-SRN Document 161 Filed 02/25/2008 Page 1 of 5
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Procedure. Plaintiffs’ motion for sanctions is based upon:
(1) Defendants’ spoliation of relevant evidence including: failure to place a “litigation hold” on relevant evidence including electronically maintained correspondence and documentation and housing inspection records;
(2) Defendants’ destruction of a substantial volume of relevant evidence during the litigation herein;
(3) Defendants’ intentional non-disclosure of City documents related to the City’s long standing, close relationship, contractual and otherwise, to the St. Paul Public Housing Agency, in violation of the Court’s November 13, 2007 production Order;
(4) Defendants’ intentional non-disclosure of certain other relevant evidence that was subject to Plaintiffs’ discovery requests to Defendants but which Defendants intentionally failed to disclose to Plaintiffs, including multiple evaluations conducted in 2006 by City code enforcement personnel of large representative samplings of 2005 Truth-in-Sale-of-Housing inspection reports and the City’s determination from those evaluations that at least 60 percent of the single family and duplex homes in the City had serious code deficiencies, as Plaintiffs had claimed;
(5) Defendants’ violation of the Court’s November 13, 2007 Order, by production on January 9, 2008, of electronic evidence in a different format than required by the parties’ stipulation and Court’s order;
(6) Defendants’ intentional failure to timely disclose that Defendants’ had deleted most of Andy Dawkins’ emails and other electronic documentation; that the emails of Susan
Case 0:04-cv-02632-JNE-SRN Document 161 Filed 02/25/2008 Page 2 of 5
3
Kimberly, a key official in the City’s “problem property” and housing related policies, had been deleted in 2006; that many of the email boxes of Defendants and other officials and employees’ had a shocking lack of emails from periods prior to December 2005 contrary to claims by counsel for Defendants;
(7) Defendants’ intentional delay in the redaction of claimed “private data” from the “attorney eyes” only raw emails selected by Plaintiffs under the parties’ stipulation; delayed production by Defendants of the “redacted emails” for use by Plaintiffs in this motion; Defendants produced the redacted emails to Plaintiffs on Friday, February 22, 2008, one business day before the deadline for Plaintiffs to file this renewed motion for sanctions;
(8) Other conduct by Defendants and their counsel in violation of discovery rules following the March 2, 2007 discovery cutoff; and
(9) The prejudice to Plaintiffs from said improper conduct.
Plaintiffs, as part of this motion, respectfully request a further order of the Court as follows:
1.
Findings by the Court that the destroyed documents were relevant to Plaintiffs’ claims, that the destruction of said documents occurred during the litigation, that the destruction has prejudiced Plaintiffs, and that Defendants’ conduct constituted spoliation of evidence and willful non-disclosure of relevant documents subject to the Court’s Order mandating disclosure;
2.
Entering sanctions against Defendants for their spoliation and willful non-disclosure of relevant evidence, including, but not limited to:
Case 0:04-cv-02632-JNE-SRN Document 161 Filed 02/25/2008 Page 3 of 5
4
a.
entering judgment against Defendants and in favor of Plaintiffs on the issues of liability;
b.
entering judgment against Defendants and in favor of Plaintiffs on the issues of damages;
c.
entering monetary sanctions against Defendants and/or their counsel for spoliation of evidence and non-disclosure of relevant evidence;
d.
in the alternative, ordering dismissal of Defendants’ Motions for Summary Judgment herein;
e.
in the alternative, making an adverse inference against Defendants and in favor of Plaintiffs as part of Defendants’ Motions for Summary Judgment;
f.
in the alternative, directing factual findings in favor of Plaintiffs;
g.
imposing an adverse inference instruction to the jury at trial;
h.
awarding Plaintiffs their attorney’s fees, expert fees, costs and expenses incurred by Plaintiffs as a result of Defendants’ wrongful conduct including all attorney’s fees incurred by Plaintiffs since the close of discovery on March 2, 2007;
i.
for such other and further relief as the Court deems just and equitable and that will otherwise restore Plaintiffs to the same position they would have been in absent Defendants’ spoliation, non-disclosure of relevant evidence, and conduct in violation of the court order and rules.
Case 0:04-cv-02632-JNE-SRN Document 161 Filed 02/25/2008 Page 4 of 5
5
This renewed motion for sanctions is based upon the motion filings submitted by Plaintiffs in their original motion for sanctions, arguments by Plaintiffs’ counsel at the August 20, 2008, hearing, Plaintiffs’ joint memorandum of law and affidavits in support of their renewed motion for sanctions to be filed herein, evidence and arguments presented at the hearing on this renewed motion, and upon all the files, records and other proceedings herein.
SHOEMAKER & SHOEMAKER, P.L.L.C.
Dated: February 25, 2008 By: /s/ John R. Shoemaker
John R. Shoemaker (Attorney Lic. #161561)
Centennial Lakes Office Park
7701 France Avenue South, Suite 200
Edina, Minnesota 55435
(952) 841-6375
Attorneys for Plaintiffs Steinhauser, et. al. Attorneys for Plaintiffs Harrilal, et. al.
AASE, ENGEL & KIRSCHER, PLLC
Dated: February 25, 2008 By: /s/ Matthew A. Engel
Matthew A. Engel (Attorney Lic. #315400)
11282 86th Avenue North
Maple Grove, Minnesota 55369
T: (763) 416-9088
F: (763) 416-9089
Attorney for Plaintiffs Gallagher, et. al.
Case 0:04-cv-02632-JNE-SRN Document 161 Filed 02/25/2008 Page 5 of 5
DISTRICT OF MINNESOTA
Frank J. Steinhauser, III, et al., Civil No. 04-2632
JNE/SRN
Plaintiffs,
v. PLAINTIFFS’ JOINT
RENEWED MOTION FOR
City of St. Paul, et al., SANCTIONS
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 the above-referenced cases, with the exception of Plaintiffs Bee Vue and Lamena Vue, respectfully renew their motion for sanctions against Defendants herein pursuant to the Court’s inherent power and pursuant to Rule 37 of the Federal Rules of Civil Procedure.
Case 0:04-cv-02632-JNE-SRN Document 161 Filed 02/25/2008 Page 1 of 5
2
Procedure. Plaintiffs’ motion for sanctions is based upon:
(1) Defendants’ spoliation of relevant evidence including: failure to place a “litigation hold” on relevant evidence including electronically maintained correspondence and documentation and housing inspection records;
(2) Defendants’ destruction of a substantial volume of relevant evidence during the litigation herein;
(3) Defendants’ intentional non-disclosure of City documents related to the City’s long standing, close relationship, contractual and otherwise, to the St. Paul Public Housing Agency, in violation of the Court’s November 13, 2007 production Order;
(4) Defendants’ intentional non-disclosure of certain other relevant evidence that was subject to Plaintiffs’ discovery requests to Defendants but which Defendants intentionally failed to disclose to Plaintiffs, including multiple evaluations conducted in 2006 by City code enforcement personnel of large representative samplings of 2005 Truth-in-Sale-of-Housing inspection reports and the City’s determination from those evaluations that at least 60 percent of the single family and duplex homes in the City had serious code deficiencies, as Plaintiffs had claimed;
(5) Defendants’ violation of the Court’s November 13, 2007 Order, by production on January 9, 2008, of electronic evidence in a different format than required by the parties’ stipulation and Court’s order;
(6) Defendants’ intentional failure to timely disclose that Defendants’ had deleted most of Andy Dawkins’ emails and other electronic documentation; that the emails of Susan
Case 0:04-cv-02632-JNE-SRN Document 161 Filed 02/25/2008 Page 2 of 5
3
Kimberly, a key official in the City’s “problem property” and housing related policies, had been deleted in 2006; that many of the email boxes of Defendants and other officials and employees’ had a shocking lack of emails from periods prior to December 2005 contrary to claims by counsel for Defendants;
(7) Defendants’ intentional delay in the redaction of claimed “private data” from the “attorney eyes” only raw emails selected by Plaintiffs under the parties’ stipulation; delayed production by Defendants of the “redacted emails” for use by Plaintiffs in this motion; Defendants produced the redacted emails to Plaintiffs on Friday, February 22, 2008, one business day before the deadline for Plaintiffs to file this renewed motion for sanctions;
(8) Other conduct by Defendants and their counsel in violation of discovery rules following the March 2, 2007 discovery cutoff; and
(9) The prejudice to Plaintiffs from said improper conduct.
Plaintiffs, as part of this motion, respectfully request a further order of the Court as follows:
1.
Findings by the Court that the destroyed documents were relevant to Plaintiffs’ claims, that the destruction of said documents occurred during the litigation, that the destruction has prejudiced Plaintiffs, and that Defendants’ conduct constituted spoliation of evidence and willful non-disclosure of relevant documents subject to the Court’s Order mandating disclosure;
2.
Entering sanctions against Defendants for their spoliation and willful non-disclosure of relevant evidence, including, but not limited to:
Case 0:04-cv-02632-JNE-SRN Document 161 Filed 02/25/2008 Page 3 of 5
4
a.
entering judgment against Defendants and in favor of Plaintiffs on the issues of liability;
b.
entering judgment against Defendants and in favor of Plaintiffs on the issues of damages;
c.
entering monetary sanctions against Defendants and/or their counsel for spoliation of evidence and non-disclosure of relevant evidence;
d.
in the alternative, ordering dismissal of Defendants’ Motions for Summary Judgment herein;
e.
in the alternative, making an adverse inference against Defendants and in favor of Plaintiffs as part of Defendants’ Motions for Summary Judgment;
f.
in the alternative, directing factual findings in favor of Plaintiffs;
g.
imposing an adverse inference instruction to the jury at trial;
h.
awarding Plaintiffs their attorney’s fees, expert fees, costs and expenses incurred by Plaintiffs as a result of Defendants’ wrongful conduct including all attorney’s fees incurred by Plaintiffs since the close of discovery on March 2, 2007;
i.
for such other and further relief as the Court deems just and equitable and that will otherwise restore Plaintiffs to the same position they would have been in absent Defendants’ spoliation, non-disclosure of relevant evidence, and conduct in violation of the court order and rules.
Case 0:04-cv-02632-JNE-SRN Document 161 Filed 02/25/2008 Page 4 of 5
5
This renewed motion for sanctions is based upon the motion filings submitted by Plaintiffs in their original motion for sanctions, arguments by Plaintiffs’ counsel at the August 20, 2008, hearing, Plaintiffs’ joint memorandum of law and affidavits in support of their renewed motion for sanctions to be filed herein, evidence and arguments presented at the hearing on this renewed motion, and upon all the files, records and other proceedings herein.
SHOEMAKER & SHOEMAKER, P.L.L.C.
Dated: February 25, 2008 By: /s/ John R. Shoemaker
John R. Shoemaker (Attorney Lic. #161561)
Centennial Lakes Office Park
7701 France Avenue South, Suite 200
Edina, Minnesota 55435
(952) 841-6375
Attorneys for Plaintiffs Steinhauser, et. al. Attorneys for Plaintiffs Harrilal, et. al.
AASE, ENGEL & KIRSCHER, PLLC
Dated: February 25, 2008 By: /s/ Matthew A. Engel
Matthew A. Engel (Attorney Lic. #315400)
11282 86th Avenue North
Maple Grove, Minnesota 55369
T: (763) 416-9088
F: (763) 416-9089
Attorney for Plaintiffs Gallagher, et. al.
Case 0:04-cv-02632-JNE-SRN Document 161 Filed 02/25/2008 Page 5 of 5
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