Bob said... *
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. AFFIDAVIT OF
MATTHEW ENGEL
City of St. Paul, et al., IN SUPPORT OF RENEWED MOTION FOR 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.
STATE OF MINNESOTA )
) ss.
COUNTY OF HENNEPIN )
Matthew A. Engel, being duly sworn upon oath, states and deposes as follows:
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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 support of Plaintiffs’ Renewed Motion for Sanctions.
2.
Plaintiffs filed a Joint Motion for Sanctions on June 20, 2007, (ECF Doc. No. 102, 04-2632; ECF Doc. No. 79, 05-461; and ECF Doc. No. 73, 05-1348), and the Court heard argument from counsel on August 20, 2007. Pursuant to the Court’s November 13, 2007 Order, Plaintiffs’ filed a Joint Renewed Motion for Sanctions on February 25, 2008 (ECF Doc. No. 161, 04-2632; ECF Doc. No. 138, 05-461; and ECF Doc. No. 132, 05-1348).
3.
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 with the Court (ECF Doc. No. 134, 04-2632; ECF Doc. No. 11, 05-461; and ECF Doc. No. 105, 05-1348). In the Order, the Court stated: “to establish prejudice…a movant must generally be able to show the contents of the documents at issue, that is, the substance of the evidence to which they were improperly denied access” (citation omitted), and that “[i]t remains at present undetermined what the missing documents at issue contained…[t]hus 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.”
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4.
I am now submitting this affidavit to supplement the original record Plaintiffs filed with the Court in support of its original motion for sanctions heard on August 20, 2007, and to provide the Court with evidence from Plaintiffs on the issue of prejudice that the Court determined was premature at the stage of the oral argument in August of 2007. I am also requesting leave of the Court to file further supplemental affidavits in support of this renewed motion for sanctions up to 14 days prior to the April 14, 2008, hearing on this renewed motion, for the following reasons: Plaintiffs filed and served their 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 until 4:40 p.m. Friday, February 22, 2008, as detailed further below. We 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 with over one-third of the data in unlabeled format, we request the time allowed under the civil rules to file the supplemental affidavits and exhibits up to 14 days prior to the hearing 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 3
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renewed motion. Defendants delays in providing emails, redacted emails, City documents related to its special relationship with the St. Paul Public Housing Agency (“PHA”), TISH inspection studies, and other delay tactics as more fully set forth below and in the Affidavit of John R. Shoemaker. Defendants recent filing of their Motion to Strike this renewed motion for sanctions after their most recent delay, have required Plaintiffs’ counsel to file these affidavits before the 14 day time period required under Local Rule 7.1
5.
In a telephone conference on December 7, 2007, Counsel for Defendants explained to me, as well as John Shoemaker, that 10 employee email boxes could not be restored by the Defendants’ IT department due to a change in servers in the Police and Fire Departments. Counsel for Defendants provided us with a list of the employee email boxes from the police department (Mike Carroll, Ruth Ann Eide, Joe Johnston, Mark Weigel and Lucia Wroblewski) and fire department (Barb Cummings, Pat Fish, Jaqueline Girling, Lisa Martin and Mike Urmann).
6.
On December 10, 2007, Defendants’ counsel provided me with an external hard drive containing email folders for 68 of the 79 requested email boxes of specific city employees. The combined size of this initial production of email folders was 53.71 Gigabytes (GB). Each of the 68 employee folders was labeled with their name, and each of the sub-folders within the employee email folder also had labels.
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7.
On January 9, 2008, I was provided with ten (10) DVD’s under cover letter from Defendants’ counsel, Ms. Seeba in which she stated: “Enclosed herewith are all the email files restored by the outside vendor Kroll Ontrack.” See Exhibit # 1 attached hereto. In addition, on the same date, Defendants’ counsel sent hard copies of emails under cover letter that stated: “This completes Defendants email production.” See Exhibit # 2 attached hereto.
8.
The emails produced by Defendants’ counsel on December 10, 2007, (contained on the external hard drive) had the employee names on the folders. In addition, the subfolders had subject labels, and the individual txt., html, Word, Excel, Power Point and other files had subject labels, including the date and a description. The emails contained in the 10 DVD’s produced on January 9, 2008, were not in the same form those emails were originally sent. Paragraph 17 of the Stipulation for Entry of a Protective Order (ECF Doc. No. 116, 05-1348) states: “To the extent possible, the un-redacted e-mails shall be produced in electronic form. The e-mail messages will be produced in either the plain text or html format in which they were originally sent. All attachments will be produced in the format in which they were originally sent.”
9.
The ten (10) DVD’s produced by Defendants’ counsel contained 19 separate file folders with arbitrary numeric labels, such as 00990-01, 01004-01, 01019-01, etc. Inside the 19 folders, there are anywhere between one (1) and eighty-four (84) sub-folders with further generic labels, such as 01, 02, 03, etc. Finally, the files themselves in the sub-folders are in txt. and tif. format (no
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html., Word, Excel, Power Point, etc.), and also have generic numeric labels such as 01, 02, 03, etc.
10.
Because the 10 DVD’s contained files that were not in their original format, were not labeled with the names of the remaining employees, and had arbitrary and generic numeric labels without date and subject information, Defendants’ production of this remaining data does not meet the requirement of the Stipulation and Court’s Order approving the Stipulation. Under cover letter dated January 22, 2008, I informed Defendants’ counsel of these issues. See Exhibit # 3 attached hereto.
11.
Upon further investigation into the unidentified 19 email folders, I learned that no folder existed for city employee Susan Kimberly. In addition, we were unable to attribute folder 01924-01 to one of the remaining ten (10) employee email boxes to be produced by Defendants. Under cover letter dated February 6, 2008, I informed Defendants’ counsel of these issues. See Exhibit # 4 attached hereto. Defendants’ counsel responded under cover letter dated February 7, 2008, and stated that the unidentified email folder 01924-01 belonged to City Council President Kathy Lantry, and also confirmed that employee Susan Kimberly’s account had in fact been deleted on April 20, 2006. See Exhibit # 5 attached hereto.
12.
Given the above information, Plaintiffs’ counsel question Defendants’ representations and conduct relating to the email production. Defendants represented that they had disaster recovery tapes back to December of 2005. 6
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See Exhibit # 6 attached hereto. When Susan Kimberly’s account was deleted on April 20, 2006, there still should have been disaster recovery emails for Susan Kimberly for December 2005, and January, February and March of 2006.
13.
Plaintiffs’ counsel was also misled by Defendants’ counsel through misrepresentations that the emails produced on January 9, 2008, that were restored by Kroll On-Track, were due to a change in police and fire department servers affecting five (5) individuals from the police department, and five (5) individuals from the fire department. However, unidentified email folder 01924-01 belonged to City Council President Kathy Lantry, who was not on Defendants’ counsel list of final ten (10) employees, and Council President Lantry is not a member of the police or fire departments. No explanation has been provided by Defendants why Lantry’s restored emails were not completely provided to Plaintiffs’ counsel on December 10, 2007, instead of the bifurcated production on December 10, 2007 and January 9, 2008. Lantry’s second half of emails certainly were not on police or fire department servers, were they?
14.
In keeping with my duties under the protective order for email production, I provided Defendants’ counsel with a CD with unredacted City emails selected by Plaintiffs’ counsel and labeled STP 211355 – 212928 under cover letter dated January 11, 2008, for redaction by Ms. Seeba and return to Plaintiffs’ counsel for use in this renewed motion. See Exhibit # 7 attached hereto. Just 7
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six days later, under cover letter dated January 17, 2008, Ms. Seeba produced the first set of redacted emails stating: “These emails have been reviewed and are herewith produced. There was nothing redacted from any of the emails” (emphasis added). See Exhibit # 8 attached hereto. The primary focus of the protective order was to protect “private data” under the Minnesota Data Practices Act related to individuals, not to protect claimed attorney client privileged information.
15.
On February 1, 2008, I provided Defendants’ counsel with another CD containing selected unredacted City emails labeled STP 212929 – 214916 to be redacted by Ms. Seeba or her staff. On February 11, 2008, I provided Defendants’ counsel with another CD containing unredacted City emails labeled STP 214917 – 216307 to be redacted by Ms. Seeba or her staff. See Exhibit # 9 attached hereto.
16.
On February 19, 2008, while at the document deposition of Al Hester of PHA, more than one month after having produced the first set of redacted emails, Defendants’ counsel stated to me that she and her staff forgot to review the first set of redacted emails for “data privacy” information, and had only reviewed for “attorney/client” privileged material. The review for attorney/client information should have already been conducted prior to December 10, 2007 and prior to January 9, 2008, when the two batches of raw unredacted emails were finally delivered to Plaintiffs’ counsel. See paragraph 15 of the Stipulation for Entry of a Protective Order (ECF Doc. No. 116, 05-
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1348), which states: “[P]rior to disclosure, Defendants agree to make a reasonable attempt to review all e-mail for privileged information and remove those e-mails identified as privileged.”
17.
In light of the above information, Plaintiffs’ counsel is again forced to question Defendants’ representations and conduct relating to the City email production. Defendants’ counsel repeatedly informed Plaintiffs’ counsel that data privacy review was of utmost importance to her and her clients throughout the discovery delays from close of discovery on March 2, 2007, through the fall of 2007 whenever we discussed the email production issue, yet upon their review of their first set of unredacted emails, they failed to review the documents for data privacy information. This is almost unbelievable except Ms. Seeba stated, “these emails have been reviewed and are herewith produced. There was nothing redacted from any of the emails.” See Para. 14, supra.
18.
Plaintiffs’ counsel requested that Ms. Seeba provide up to date code enforcement documentation from City files on Plaintiffs’ properties. Defendants’ counsel agreed to provide only the updates to the property files, and not the entire property files. I requested that Defendants’ counsel provide the entire files for the Plaintiffs in Gallagher, et al, v. Magner, et al. because the scanned copies of many of the documents from City files did not show the lighter colored handwriting, especially the pink carbonless paper copies of City Summary Abatement Orders, and thus the document production process agreed 9
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to by all counsel produced poor copies for all sides to use. I explained to Ms. Seeba that there have been significant advances in technology since I scanned documents from City files almost two years ago, and my scanners are now faster and more efficient, produce better images, and scan in color. I also explained that because the files would need to be pulled anyway due to the need to update since the last review and scanning process, it would take potentially more effort to separate the updates from the files as opposed to just producing the entire file. See Exhibit # 10 attached hereto.
19.
Ms. Seeba responded by requesting $1,100.00 to produce the property files of the Plaintiffs in the Gallagher case. See Exhibit # 5 attached hereto. I provided a check to Defendants’ counsel, payable to the City of St. Paul, in the amount of $1,100.00. Defendants’ counsel agreed to produce the entire property files for the Plaintiffs in the Gallagher case for scanning on February 12, 2008.
20.
On February 12, 2008, Frank Steinhauser and I arrived at Defendants’ counsel’s office to scan the entire property files for the Plaintiffs in the Gallagher case, as well as the updates to the Plaintiffs’ property files in the Steinhauser and Harrilal cases. Many of the photocopies prepared by Defendants also had not copied certain handwriting and thus produced poor copies, just as had happened to some of the Plaintiffs’ property files in the Gallagher case. On February 12, 2008, I discovered that Ms. Seeba and her staff did not have the property files available for scanning for any of the
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Plaintiffs in the Gallagher case. Defendants’ counsel responded with a letter dated February 12, 2008, and stated: “Paralegal Lynn Knutson checked with DSI and was informed that they did not send the updates for your files because they were under the impression that you would be rescanning all your clients' files, including what has been previously produced. I propose that you scan your clients' entire files at the same time instead of the City separately producing the updated portion of your clients' files (emphasis added). I am sorry for the confusion that this may have caused today.” See Exhibit # 13 attached hereto. This analysis and line of reasoning is what I had tried to explain to Ms. Seeba on several occasions – that if the files need to be pulled anyway for updating since the last scanning two years ago, it would be more efficient and would take little if any additional time should I take the opportunity to obtain better copies of the entire property files with the new scanners. Ms. Seeba finally produced the Plaintiffs’ property files for scanning on Friday, February 22, 2008. Defendants’ counsel has not offered a refund of any pro-rata share of the $1,100.00 paid to the City of St. Paul for the “extra work” required with respect to the Gallagher Plaintiffs’ property files.
21.
On the morning of Friday, February 22, 2008, I arrived at the City Attorney’s Office for further document scanning of Plaintiffs’ property files. Upon speaking with Ms. Seeba, I asked whether I would receive the all of the “redacted emails,” that Plaintiffs’ counsel had been anxiously awaiting; Ms. Seeba responded, “maybe.” I did not receive copies of any redacted emails
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from Defendants’ counsel until 4:40 p.m that same day. At that time, under cover letter from Defendants’ counsel dated February 22, 2008, I received 314 redacted pages of miscellaneous City emails. See Exhibit # 11 attached hereto. Defendants delayed delivery of the redacted emails interfered with and prohibited Plaintiffs’ ability to file all the supporting documentation with the Court on February 25, 2008.
22.
Based upon my review of the emails produced by Defendants, it is clear that a significant amount of email data was destroyed by Defendants for periods of 2002-2004 and to a considerable extent for 2005.
23.
Attached hereto as Exhibit # 12 is a chart I have prepared from my email review showing a breakdown of the emails contained in email boxes of selected Defendants and officials by year. Few if any emails were produced by Defendants for periods prior to 2005, in many cases no emails were produced for the 2002-2004 period. Because the emails produced by Defendants on January 9, 2008 (on the ten DVD’s) were unlabeled, Plaintiffs’ council cannot assess the breakdown of each of the last 10 employees email boxes without looking through each of the files in the 26 gigabytes of data, representing 1/3 of the total amount of electronic data produced.
24.
Emails from City Council President Lantry’s email box produced on December 10, 2007, contained 360 megabytes of data, which is far less than most other council members: Councilmember Thune, 2.43 gigabytes of data produced; Councilmember Montgomery, 2.22 gigabytes; Councilmember Harris, 1.13
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gigabytes. It also appears that City Council President Lantry is copied on many of the emails that are sent to other council members, which should have increased her volume of emails rather than reduced her total e-data.
25.
A very disturbing email was located that calls into question not only the size of City Council President Lantry’s email box, but also Defendants’ conduct in failing to place a “litigation hold” on emails, failing to produce relevant evidence related to these lawsuits, and even purposeful destruction or withholding of e-data. In an email about the budget from July of 2007 (Bates No. STP 211756), Council President Lantry states: “I am almost certain that I sent this exact same e-mail last year but due to the Rico lawsuit, digging through my electronic trash would take about 4 days so I am relying on my ever failing memory.” See Exhibit # 16 attached hereto. An examination of the sub-folders contained in Lantry’s email box (See Exhibit # 12 attached hereto), will show that Lantry produced a “Trash Smoke” and “Trash Smoking” folders, but no “Trash Rico” folder, or similar folder was produced to Plaintiffs. Where is that data referred to by Council President Lantry? Why hasn’t she produced that data for Plaintiffs’ inspection?
26.
In review of City employees’ emails, I have been unable to locate City emails that concern Plaintiffs, their tenants or their claims. Plaintiffs were prejudiced by Defendants’ delayed production of emails and failure to produce emails from relevant time periods.
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27.
Emails that were produced from Dawkins' email box show that he was sending (and should have been receiving) a large volume of emails in corresponding with a multitude of City officials and employees, and many third parties both in Minnesota and from outside Minnesota. However, the City produced a mere 5.69 megabytes of data from Dawkins' email box claiming that was all there was, and Dawkins claiming the small amount of email was because he hardly used email in his position as Department head of the City, a City that was recognized as one of the most technologically advanced cities in the country. It also appears that Dawkins is copied on many of the emails that are sent throughout the city, which should have increased his volume of emails. Even with Council President Lantry’s email production at approximately 1/7 the volume of fellow councilmembers, Dawkins produced emails constituted about 1.58% of Lantry’s emails (5.69 meg. / 360 meg).
28.
In reviewing documents produced by the City in other litigation, Plaintiffs’ counsel have located an email from Connie Sandberg’s emails dated February 13, 2006: this is an email from a member of the City's IT department to NHPI Office manager Pat McGinn and TISH director Connie Sandberg (each of who were employees directly reporting to Dawkins during 2002 to December 31, 2005), just 6 weeks after Dawkins left employment showing that Ms. Sandberg was asked by the IT employee: “[M]ay I delete Andy Dawkins (dawkins) network, groupwise accts and home directory?” (emphasis added). See Exhibit # 18 attached hereto. We have been unable to locate Sandberg’s
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response to this request. However, considering the recently acquired information from Ms. Seeba that Susan Kimberly’s emails were deleted shortly after her departure from the City in early 2006, and the minuscule size of Dawkins produced emails, someone such as Sandberg, Dawkins or others had incentive to delete those emails.
29.
Pursuant to the Courts’ Order, Plaintiffs will provide the Court below with examples of email evidence showing the nature of what the missing documents at issue contained:
a.
In an email from July of 2006, identified by Bates No. STP 211682, code enforcement officer Jacqueline Girling is writing to police officer Dean Koehnen with respect to his exercising his “size and influence to strong arm the property owner” in relation to code enforcement on one of her property files. Ms. Girling states: “Apparently Pam from Crime Prevention requested that you go out there ‘because of the size and influence that you would have over the owners’ (according to what Betsy told me). There was no reason for Crime Prevention to be involved in this case, as there was no danger of a potential crime taking place over there…Dean, please in the future, if you are going out on a property where I have pending orders, I would appreciate a heads up. There was no need for you to go out there other than (what sounds to me like) Pam from Crime Prevention hoping that you could strong-arm these people with your "size and influence"(emphasis
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added). See Exhibit # 14 attached hereto. This nature of this disclosure and implications to be drawn there from, are deeply disturbing in a constitutional, democratic free society held together by the rule of law. The shocking nature of this disclosure is consistent with the claims made by many of the Plaintiffs from the first Complaint by the Steinhauser Plaintiffs in May 2004 and thereafter in the Harrilal, Johnson Complaint. Defendant Officer Koehnen is an extremely large man standing close to 6’ 8”and of considerable weight. City police and code officials assigned Koehnen to Dawkins’ code office to gain entry to the interiors of properties where consent could not be obtained. The City employees involved in this particular property where a combination of a large police officer, code inspector, City crime prevention employee and an neighborhood representative working with City officials and employees to “force compliance” outside the boundaries of the law against a property owner, just exactly what Plaintiffs and their tenants have claimed all along. From this email, it is clear that these city employees with the help of certain third parties, have in fact been violating the Fourth Amendment constitutional rights of property owners and their tenants. Dawkins’ numerous personal notes on “problem properties” show that he was intent on gaining entry to the rental units in order to utilize his “code to the max” code enforcement policies and thereby penalize both the owners and their tenants of rental
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properties that were primarily occupied by “protected class” tenants. The longstanding problem presented to the City Council, Mayor and Dawkins’ was “how do we gain access to the interiors of homes” in the City without consent or administrative search warrants, that apparently they all believed to be to much of an obstacle. The City needed to gain entry to homes in order to apply the zero tolerance code standard (see paragraph (b) below). This email presents direct evidence to support many of the Plaintiffs claims, including Steinhauser, Meysembourg, Brisson, Johnson, and Kubitscheks. But for Defendants failure to place a “litigation hold” on emails from 2002 through 2005, Plaintiffs submit that many more emails of this character would have been available to Plaintiffs for their claims.
b.
In an email from May of 2004, identified by Bates No. STP 211417, Dawkins was replying to a Milwaukee government worker with respect to these lawsuits and the Milwaukee landlord association. Dawkins states: “Of course there is another version. In fact, one city council member (whose district includes many slum properties) thanked me for ensuring her re-election because this demonstrates the City's new zero tolerance approach to slum properties… The law suit is 78 pages in length and accuses me and the Mayor of federal racketeering (using the U.S. mails to deprive Civil Rights). If I thought for one second that my inspectors had exaggerated violations (and couldn't back up their
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correction notices with photos), or if I thought for one second that me and the Mayor were targeting minority tenants for moves back to Milwaukee (instead of bringing legal actions to improve their conditions), then I'd be worried…As it stands I'm confident that the law of the land is that no Code Enforcement Department has to be 24/7 on every property in the city (Universal Enforcement) and instead can deploy limited resources against the biggest, baddest apples in hopes of a ripple effect.” See Exhibit # 15 attached hereto. This email supports the analysis in paragraph (a) above that the City sought to apply heavy-handed code enforcement policies Dawkins described as “code to the max” standards and his “zero tolerance” code standard to penalize the owners and tenants of rental properties that were primarily occupied by “protected class” tenants. It should also be noted that this is a 2004 email that Dawkins received and responded to, that related directly to the lawsuits before the court, and that Dawkins’ email box shows zero (0) incoming emails for 2004. Dawkins most likely believes that this email exonerates him from any wrongdoing during his term or for any responsibility for the mess the City is currently in with over four times the number of vacant homes in the City from when he showed up to run code enforcement in 2002.
c.
In an email from December of 2005, identified by Bates No. STP 212185-212187, city council aide Jane Prince was replying to an email
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with respect to the problem that a “complaint-based” code enforcement system unfairly targets people of color. Prince states: “The issue of how a complaint-based system may unfairly target people of color is a huge one, and I'm not sure what we do to get at it. A new mayor and Toni's and Jay's influence in a new administration can sure help” (emphasis added). Furthermore, in the same series of emails, STP 212186, Prince states: “[i]n talking to Tatiana, and looking at the city data on each of her neighboring properties, there are a high number of complaints being called into the city on certain properties…Tatiana is also concerned from the apparent pattern of complaints to CSO that whoever is making these calls is targeting neighbors of color. For that reason, we're thinking it makes sense to invite both Tyrone Terrill from the Human Rights Office and Bob Kessler, the new LIEP/Code Enforcement director, so that they can help us think through the very real possibility that people of color are unfairly targeted by the city's complaint based system” (emphasis added). See Exhibit # 19 attached hereto. City council members and aids were aware that the City's Complaint based code enforcement system was being abused by neighbors targeting "people of color" for code enforcement in order to harass and force those “people of color” from the City. Officials acknowledge that illegal targeting was and is a "huge problem". The City’s Chronic Problem Properties
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Case Studies report of March 2002, and depositions of inspectors, all support Plaintiffs’ claims that the City’s officials and inspectors assisted the targeting of “people of color.” Emails related to the property at 321 Bates Avenue produced by the City show Councilmember Lantry and her aide carried the water for the White neighbors who were working overtime to drive the African-American owners, caretaker and tenants from the 321 Bates Avenue rental property in 2004 (See Doc. No. 114). The City’s Chronic Problem Properties Case Studies released in March 2002, included four separate notations of racial conflicts involved in properties subject to code enforcement. This email from Jane Prince’s file shows direct evidence to support many of the Plaintiffs’ claims of intentional discrimination in application of heavy-handed code enforcement applied to owners of “low-income” rental properties and their “protected class” tenants. But for Defendants failure to place a “litigation hold” on emails from 2002 through 2005, Plaintiffs submit that many more emails of this character would have been available to Plaintiffs for their claims and would have actually mentioned Plaintiffs and or their tenants by name. Steinhauser was high on Council President Lantry’s list of targeted properties. Between Lantry and Dawkins’s problem properties lists, five of Steinhauser’s low-income rental properties had made their lists. There certainly should have been
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correspondence including emails between Lantry and Dawkins on Steinhauser, and on certain of the other Plaintiffs as well.
d.
In an email from June of 2005, identified by Bates No. STP 213250-2123251, Council President Lantry is replying to an email from a neighbor with respect to the property at 321 Bates Avenue. In response to the neighbor’s statement that “[G]iven the five-year plus history of problems at 321 Bates, I strongly urge you to pursue condemnation before the situation gets worse. And it seems to get worse with each new tenant that moves in,” Lantry responds: “You have been more than patient- let me see if we can influence the next steps” (emphasis added). See Exhibit # 17 attached hereto. As a City Council member, one of the ward representatives for the East Side, and President of the City Council, Kathy Lantry was using her "influence" on code enforcement personnel at the behest of neighbors, to condemn properties occupied by “people of color.” See Bates Nos. STP 018291-018295 and STP 019888-018892, as exhibits G and H from Plaintiffs’ Response to the City's Motion for a Protective Order, wherein the City was seeking to block Plaintiffs from taking the deposition of Councilmember Lantry. Those exhibits include other shocking emails between Senior Fire Inspector Pat Fish, Councilmember Lantry, her legislative aide Ellen Biales and the white neighbors of 321 Bates, as well as legal aid attorney Perry deStefano's August 2004 letters to the
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City Council claiming discrimination against the "protected class" tenants. This email shows direct evidence to support many of the Plaintiffs claims of intentional discrimination in application of heavy-handed code enforcement applied to owners of “low-income” rental properties and their “protected class” tenants. But for Defendants failure to place a “litigation hold” on emails from 2002 through 2005, Plaintiffs submit that many more emails of this character would have been available to Plaintiffs for their claims and would have referred to Plaintiffs and/or their tenants by name and revealed their discriminatory intent.
e.
In an email from May of 2005, identified by Bates No. STP 213404, Dean Koehnen was replying to a neighbor with respect to potential drug activity in the neighborhood. Koehnen replied: “I need a little more info. are these blk or white males and have you guys heard or seen any drug activity besides the weird behavior. and is 1350 haha is it a single family or duplex” (emphasis added). See Exhibit # 20 attached hereto. Whether the potential drug perpetrators were black, white, Hispanic, or Asian, or whether the property was single family or duplex should not be of consequence to code enforcement or criminal activity. This email shows direct evidence to support many of the Plaintiffs’ claims of intentional discrimination. But for Defendants failure to place a “litigation hold” on emails from 2002 through 2005, Plaintiffs submit
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that many more emails of this character would have been available to Plaintiffs for their claims.
f.
In an email from May of 2006, identified by bates no. STP 213425, Councilmember Dave Thune was replying to a neighbor with respect to Crocus Hill mugging in the neighborhood. Thune replied: “we cannot go out and arrest every 22 year old black male who walks thru crocus hill, although that's what some of your neighbors would like” (emphasis added). See Exhibit # 21 attached hereto. This email presents evidence of the racial overtones that pressure Council members and code enforcement officers to target low-income rental property owners such as Plaintiffs and their “protected class” tenants. But for Defendants failure to place a “litigation hold” on emails from 2002 through 2005, Plaintiffs submit that many more emails of this character would have been available to Plaintiffs for their claims.
g.
In an email from April of 2005, identified by Bates No. STP 211467, Councilmember Thune was emailing then city official-employee Susan Kimberly with respect to his wish to condemn and take properties. Thune wrote: “For some time now I've wished we could just condemn and quicktake individual junk properties, problem properties, vacant and boarded properties, etc…I've actually got one in ward 2 that might fit the bill for a test case. I think its rehabable and it likely would never be arguably an expensive property should its owner 23
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appear before the judge on the quick take proceedings. I'd appreciate your participation in this one to see if it could become a valuable city policy” (emphasis added). See Exhibit # 22 attached hereto. This email shows the City’s “force sale” policy, the disregard for due process, civil rights, equal protection, and the specific intolerance for the poor (primarily African-Americans) who occupy the types of properties that City officials and employees along with certain influential third parties quickly label as “problem properties,” and following application of the City’s zero tolerance polices, quickly turn into “vacant and boarded properties.” Councilmember Thune is voicing agreement with Dawkins’ statements that he wants to get rid of the bottom tier of tenants and this demonstrates the coordinated policy to get rid of affordable housing for low income and protected class tenants unless run by PHA, or certain non-profit organizations with political connections to policy makers. But for Defendants failure to place a “litigation hold” on emails from 2002 through 2005, Plaintiffs submit that many more emails of this character would have been available to Plaintiffs for their claims that would have directed Defendants’ illegal policies against Plaintiffs and their tenants.
h.
In an email from January of 2004, identified by Bates No. STP 211408, Dawkins was emailing an individual with respect to behavior issues at an apartment building. Dawkins wrote: “I did visit with Fire 24
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Prevention (Pat Fish and Steve Zacard) regarding nuisance behavior at nearby apartment buildings and they believe all is quiet. Ditto with the Police Officers assigned to my department. However, the police tell me that the apartments will likely present problems again once warmer weather arrives - it's just a mecca for lots of the down-trodden” (emphasis added). See Exhibit # 23 attached hereto. This email shows the City’s use of code enforcement by both Fire and NHPI to address behavior issues, and it shows Dawkins attitude toward low income and protected class tenants. But for Defendants failure to place a “litigation hold” on emails from 2002 through 2005, Plaintiffs submit that many more emails of this character by him and others he emailed and received emails from would have been available to Plaintiffs for their claims. It should also be noted that this is a 2004 email that Dawkins sent and copied to himself, and that Dawkins email box shows zero (0) incoming emails for 2004.
i.
In an email from September of 2005, identified by bates no. STP 213026, Carol Broermann was emailing Fire Inspector and Defendant Mike Urmann, with a copy to Dawkins, with respect to behavior issues at a property. Broermann wrote: “Could code enforcement look into a problem property at 1641 Dayton Ave. that may have an over-occupancy issue? There has been numerous youth hanging around the properties exchanging vulgarities and being down right 25
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intimidating to neighbors. It is not clear if these youths reside at the address being mentioned above. I also have an e-mail into Andy Dawkins to look at property violations and perhaps, bring in the FORCE unit.” In response, councilmember aide Jane Prince responds: “We have since gotten some feedback from the complainant that this is an extended family; so we probably don't have an over-occupancy situation.” However, despite the apparent lack of an over-occupancy issue due to an extended family, and despite no mention of property code violations, Mike Urmann replies: “I would like to stop by this address to find out and make sure we don't have any safety issues” (emphasis added). Again, without mention of over-crowding or property code violations, Jane Prince responds addressing behavior issues: “Your stop will help send the message that the city is paying attention. This household has become the source of a lot of noise and disruption from young people living there. A few weeks ago, two cousins got in a knife fight here. Because no charges were filed, the Police couldn't really do anything” (emphasis added). See Exhibit # 24 attached hereto. This email shows the City’s policy of using housing and fire code inspectors to address behavior issues that the City cannot address through the police force because of due process and constitutional rights of individuals. Defendants’ policies are subverting those constitutional rights of owners and occupants. But for
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Defendants failure to place a “litigation hold” on emails from 2002 through 2005, Plaintiffs submit that many more emails of this character would have been available to Plaintiffs to support their claims.
j.
The following documents are e-files that were contained in the various city employee email boxes that are not emails, but what are most likely files that were attached to emails. These documents show many of the problems that stem from the use of a complaint based system and the use of code enforcement to address behavior issues, including consistency and fairness, political influence, and affordable housing:
i.
See Exhibit # 25 attached hereto. STP 211845 – 211852: Code Enforcement Situation Assessment from 2006: from page 9: “Some property owners said they felt unfairly treated by code enforcement. Their concerns included: Being held responsible for irresponsible behavior of tenants at the same time as not feeling supported in dealing with tenant problems; Selective and inconsistent enforcement; Appeals process too closely aligned with code enforcement; Communication problems with code enforcement units, including notices sent to old addresses after the property owner had provided a new address, not feeling listened to, or feeling inspectors were “mean spirited”; Overzealous use of nuisance and vacant building statutes, causing landlords to sometimes feel caught between maintaining
27
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drug-free, orderly rental situations, and paying high eviction fees and quickly filling vacancies when they take action against unruly tenants” (emphasis added). From page 10: “Perceptions of the role of political influence in code enforcement activities undermines public trust in the city’s efforts.” “In cases where violators are willing to fix problems, but lack the ability or resources, the city could do more to provide help. Many people discussed the need for enhancing the city’s compliance assistance tools in order to help keep landlords from going out of business or tenants losing affordable housing.” “Some stakeholders’ frustration with the city’s enforcement was fueled by their perception that the appeals process usually resulted in a “no” answer from the city. They would like to know the criteria for appeals decisions and to feel that the process was neutral” (emphasis added). From page 11: “Increased use of nuisance statutes for addressing problem properties: The State of Minnesota’s nuisance statutes have given cities a new tool for addressing property-based problems. On one hand this has made it easier to tackle problem properties, but it has heightened perceptions among some stakeholders that the city is heavy handed in its approach to code enforcement. The use of nuisance statutes may need to be factored into possible 28
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organization structure options, as this is where the link between police and code enforcement activities most commonly occurs” (emphasis added).
ii.
See Exhibit # 26 attached hereto. STP 211856 – 211860: Evolution of Code Enforcement Timeline from 2006: from page 3: “2002 – Code Enforcement unit (NHPI) created – police attached to them rather than other way around, 2002 – New direction in dealing with problem properties – Behavioral perspective - All 2002 changes” (emphasis added). From page 4: “From 2002 on – Federal lawsuits filed against Code Enforcement because of these strategies, 2005 – Vacancy rate in rentals started to skyrocket and problem properties work increased” (emphasis added).
iii.
See Exhibit # 27 attached hereto. STP 211901 – 211903: Bob’s Blog, July 29, 2007: from page 3: “Be careful....your safety is more important than any violation or complaint. No matter whom the complainant might be” (emphasis added). It is clear that Bob Kessler is referring to influential officials or third parties.
iv.
See Exhibit # 28 attached hereto. STP 215473: Code Enforcement Cheat Sheet: “Civil laws are being used and the preponderance of evidence is lower for proof. Officers can be
29
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a huge help by: -making sure behavior is specifically tied to the address. -speaking with neighbors/witnesses to see if they were "bothered or annoyed" by incident, if so, put it in a report. We need documentation, names, and addresses. -there does not need to be a criminal charge for code enforcement to work on a property as we are using civil law, so as already said, documentation of behavioral issues is very helpful. -If officers get inside of a property for whatever reason and see code violations, please call for an inspector. Sweeps of the exteriors are being done by code enforcement, but we don't get interior inspections” (emphasis added). Here it appears that the officials are encouraging everyone to document the complaints on the targeted property in order to ensure that heavy-handed enforcement will be applied to satisfy the neighbors and others. With the acknowledged misuse of the complaint based system to target people of color, it appears that the documentation policy only encourages further targeting. But for Defendants failure to place a “litigation hold” on emails from 2002 through 2005, Plaintiffs submit that many more emails of this character would have been available to Plaintiffs to support the claims related to their properties.
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k.
In an email from August of 2006, identified by Bates No. STP 213517, Inspector Ed Smith was emailing a neighbor with respect to behavior issues at a property. Smith wrote: “unfortunately, the Code Enforcement Department deals strictly with housing code violations, not behavioral issues. Those are matters that the police Department would need to deal with” (emphasis added). See Exhibit # 29 attached hereto.
l.
In an email from November of 2006, identified by Bates No. STP 215300, Police Officer Mark Weigel was emailing Council President Lantry with respect to behavior issues at a property. Weigel wrote: “I realize that there are too many calls overall to this area but from my jobs perspective I'm stuck. I was even looking for any that could have fallen into excessive consumption for police but none fit that criteria either. I think at least somewhat of a message can be sent through making them register and by code enforcement issuing orders. Good luck with it. I hope all is good on your end” (emphasis added). See Exhibit # 30 attached hereto. This email shows the City’s policy of using housing and fire code inspectors to address behavior issues that the City cannot address through the police force because of due process and constitutional rights of individuals. But for Defendants failure to place a “litigation hold” on emails from 2002 through 2005, Plaintiffs
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submit that many more emails of this character would have been available to Plaintiffs to support their claims.
m.
In an email from March of 2007, identified by Bates No. STP 215581, Police Officer Weigel was emailing Officer Jamie Sipes with respect to behavior issues at a property. Sipes wrote: “I need to sick you and yours on a property. 1011 Burns is a single family home/owner occupied by Vickie. I am not sure of her last name. The address as been a problem for well over a year but we haven't been able to do much. It is up off of the street and they do not actually sell drugs from there. The problem is more about the conduct at the house and the type of people that visit. Vickie is 19 or 20, owns the home and has a large income from the casino…Vickie is Native American and has had boyfriends arrested off an on…Anyway, the area is predominately owner occupied single family homes. It is a good neighborhood that is frustrated with the issue. Gangs, FORCE and I have all dealt with it to no avail. This has led to more frustration and complaints to Lantry’s office.” Weigel responded: “I am forwarding this to Dean to see if we can get an inspection and have an impact” (emphasis added). See Exhibit # 31 attached hereto. This email shows the City’s policy of using housing and fire code inspectors to address behavior issues, the policy of using Officer Koehnen to force an interior inspection because of his size – “impact”- all in violation of owners,
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tenants, and occupant’s constitutional rights. But for Defendants failure to place a “litigation hold” on emails from 2002 through 2005, Plaintiffs submit that many more emails of this character would have been available to Plaintiffs for their claims.
n.
In an email from August of 2004, identified by Bates No. STP 215581, Police Officer Weigel was emailing Lisa Martin with respect to behavior issues at a property. Weigel wrote: “Can you check 348 W. Winona. No dangerous police issues and no current open code.” Martin responds: “Sure, but why are we checking it then?” Weigel replies: “It came from a citizen through Thune's office and has some police issues, but not enormous” (emphasis added). See Exhibit # 32 attached hereto This email shows the City’s policy of using housing and fire code inspectors to address behavior issues that the City cannot address through the police force because of due process and constitutional rights of individuals. In addition, this email shows the political influence that can be applied for illegal code enforcement. But for Defendants failure to place a “litigation hold” on emails from 2002 through 2005, Plaintiffs submit that many more emails of this character would have been available to Plaintiffs for their claims.
o.
In an email from January of 2007, identified by Bates No. STP 215699-215700, Council President Lantry was emailing a friend with respect to code enforcement related to rental properties. Lantry’s friend wrote:
33
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“Under the new ordinance, how strictly is "owner occupied" defined? For instance, I live in a duplex, where my neighbor on the other side is the owner's daughter, who keeps an eye on things. Are we considered owner occupied?” Lantry responds: “I believe it will be defined as the owner actually occupying the space-not just homesteading it. On the flip side, unless there is a complaint on your duplex, the city would never know that it is anything other than owner occupied due to it's homesteaded status…They haven't homesteaded the property? They should. First because they qualify to homestead it and then because it may stave off the inspectors for a while. If it is a good well-maintained property-that's a good thing. We are going to try to get into the worst of the worst first” (emphasis added). See Exhibit # 33 attached hereto. This email shows the City is still targeting and applying a different code standard to the low-income and rental properties still occupied to this day by “protected class” tenants. Owner’s and renters should not need to worry about homesteading properties to “stave off” inspectors, especially at the advice of the City Council President, if the inspectors are truly applying the code in a consistent and fair manner to all properties. But for Defendants failure to place a “litigation hold” on emails from 2002 through 2005, Plaintiffs submit that many more emails of this character would have been available to Plaintiffs for their claims.
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p.
In an email from September of 2005, identified by Bates No. STP 211590, Dawkins is responding to an email question about the definition of “legal occupancy” from a resident. The resident writes: “I am looking at the "Vacant Buildings" section of the St. Paul Legislative codes. In Sec. 43.02 Definitions, #(5) it reads: "Unoccupied: A building which is not being used for a legal occupancy as defined in the Saint Paul Legislative Code." Would you please tell me where I can find the definition of "legal occupancy" in the St. Paul Legislative codes? Please let me know ASAP.” Dawkins responds: “I am not sure if it appears anywhere. I would interpret this to mean not over-occupied and not trespassers” (emphasis added). See Exhibit # 34 attached hereto. This email supports Plaintiffs claims in the Gallagher case (specifically paragraph 257 of the Second Amended Complaint which discussed the exact same provision of the legislative code) in that the St. Paul Legislative Code is void for vagueness, in violation of the Fourteenth Amendment’s Due Process Clause, because the legislative code fails adequately to define key terms contained in those code chapters. But for Defendants failure to place a “litigation hold” on emails from 2002 through 2005, Plaintiffs submit that many more emails of this character would have been available to Plaintiffs for their claims.
35
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q.
In an email from January of 2007, identified by Bates No. STP 213654 - 213655, councilmember aide Barb Benson is engaging in an email exchange with someone who appears to be a friend with respect to Defendant Steve Schiller. Benson writes: “My name ended up in a deposition in conjunction with Dave Thune about this case where all the slum landlords are suing code inspection and everyone. Steve Schiller (who is certifiable) was the one deposed and I strongly objected to what he said…The City attempted to fire Steve Schiller many years ago, but, unfortunately, was not successful. He should have been canned. I'm just sorry for you that you have to waste your time with this sleazy slimeball City employee. Have a good day." With that, I got up and walked out” (emphasis added). See Exhibit # 35 attached hereto. This email shows the character and reputation of one of the named defendants, Steve Schiller in the Gallagher case, as well as the City’s opinion of the Plaintiff’s in all three cases. But for Defendants failure to place a “litigation hold” on emails from 2002 through 2005, Plaintiffs submit that many more emails of this character would have been available to Plaintiffs for their claims.
r.
In an email from February of 2005, identified by Bates No. STP 211437, Dawkins was exchanging emails with City Council President Lantry with respect to revocation of rental registrations and how to
36
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solve problem properties. Lantry wrote: “Thanks and I'll look forward to seeing the report. As an aside-did you talk to Ed Johnson? I left him a message but he has not called me back.” Dawkins responds: “Ed left a message saying he was unaware that steinhauser had sold” (emphasis added). See Exhibit # 36 attached hereto. This email shows that communications were taking place between defendants and the city council with respect to the Plaintiffs, and that the City was actively seeking information about the Plaintiffs’ properties. But for Defendants failure to place a “litigation hold” on emails from 2002 through 2005, Plaintiffs submit that many more emails of this character related specifically to Plaintiffs.
s.
In an email from September of 2005, identified by Bates No. STP 213310, Dawkins received an email from Maynard Vinge with respect to finding property owner information through PHA and Section 8. Vinge wrote: “I called PHA, The Executive Director Jon Gutzmann and was given Al Hester an Exec Assistant voice mail. Basically as in the Dadder's property where we found the new owner because of Sec 8. I thought this would be a good place to call. They have to know who the person is that will get the rent and were to send it” (emphasis added). See Exhibit # 37 attached hereto. This email shows that communications were taking place among defendants, city employees, and PHA with respect to the Plaintiffs, and that the City was actively
37
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seeking information about the Plaintiffs’ properties. This email also shows that the City has a working relationship with PHA on several different levels, which supports Plaintiffs’ illegal government monopoly and antitrust claims. But for Defendants failure to place a “litigation hold” on emails from 2002 through 2005, Plaintiffs submit that many more emails of this character would have been available to Plaintiffs to support their claims.
t.
In an email from June of 2005, identified by Bates No. STP 213255 – 213256, Councilmember Lantry exchanged emails with Todd Axtell about exchanging lists of Section 8 problem properties with PHA: Lantry wrote: “After the our neighborhood meeting at Bethlehem Lutheran Church on May 31 one of my assignments was to contact PHA to see if there was some sort of procedure that could be put in place to make sure that PHA was not providing funding to a scofflaw landlord or a misbehaving tenant. So, having seen Al's response I'm wondering if we shouldn't get together to come up with a system to relay our info to PHA” (emphasis added). See Exhibit # 38 attached hereto. This email demonstrates that communications were taking place among city officials and employees and PHA’s officials with respect to “problem properties” that were being targeted by Defendants and that the City wanted PHA to assist the City in shutting down privately owned low-income rental properties that had similar
38
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problems as PHA. This email also supports Plaintiffs’ claims that the City has a close working relationship with PHA on several different levels. But for Defendants failure to place a “litigation hold” on emails from 2002 through 2005, Plaintiffs submit that many more emails of this character would have been available to Plaintiffs for their claims.
u.
In a series of emails from June of 2005, identified by Bates No. STP 213259 – 213262, Councilmember Lantry exchanged emails with PHA’s Al Hester regarding exchanging lists of Section 8 problem properties, which then was forwarded from councilmember aide Ellen Bailes to Fire inspector Pat Fish: Lantry wrote: “One of the things we are struggling with on the East Side is some of the dilapidated rental housing and the bad behavior of some residents. Between the FORCE unit of the Police Department, Code Enforcement and my office, all of us has a list of "problem properties" and sometimes the units being rented gain their income from Section 8. Compliance by bad property owners has always been difficult since we don't have enough of a big stick to make them behave. The only thing that seems to work is monetary in nature. Is there a way to coordinate all of the lists to make sure that PHA is not paying an owner, or a tenant if they are considered a problem? Obviously this determination would not be based on conjecture but rather on actual evidence that the tenant or the property owner is delinquent…it doesn't mean that we can't
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share our lists with you and then you can privately deal with the address or the tenant.” Hester responds: “Since we protect all of the information about Section 8 applicants, participants and addresses as private data under the state law, most of the information out there is probably from word of mouth, and much of it may be incorrect…This reminds me of our long-ago discussions of "graded" C of O inspections. We thought then that a City system that rated marginal properties lower than very good ones would give the PHA more clout to lower voucher rent subsidies under the "rent reasonableness" requirement. I believe Steve Zaccard continued working with you (?) and others on computer software changes for it. Do you know if that is still in the works” (emphasis added). See Exhibit # 39 attached hereto. This email shows that communications were taking place among city employees and PHA and that the City has a working relationship with PHA on several different levels, which supports Plaintiffs’ illegal government monopoly and antitrust claims. It appears from the email that PHA is requesting the City give marginal properties lower grades than very good ones, which would give clout to PHA to lower the Section 8 rents to private landlords, a penalty that would be “monetary in nature” according to Lantry, and would allow her to carry a “big stick” to make them behave. This email also shows direct evidence to support many of the Plaintiffs’ claims of intentional
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discrimination in application of heavy-handed code enforcement applied to private owners of “low-income” rental properties and their “protected class” tenants, while PHA is allowed to self inspect with much more lenient standards and to “privately deal with” their problem property address or tenant. But for Defendants failure to place a “litigation hold” on emails from 2002 through 2005, Plaintiffs submit that many more emails of this character would have been available to Plaintiffs for their claims.
30.
On February 12, 2008, Defendants’ counsel provided PHA housing crime reports as prepared by the St. Paul Police Department. See Exhibit # 40 attached hereto (sample PHA crime report from 2004). These documents will show the amount of crime present in PHA properties and further support Plaintiffs’ claims that PHA has similar if not more problematic tenants and properties and that the City’s relationship and cooperative agreements are preferential in nature.
31.
Plaintiffs jointly request that the Court order the full array of sanctions against Defendants as originally requested by Plaintiffs in their original motion for sanctions including immediate dismissal of Defendants’ motion for summary judgment, an award of fees and costs, fines against the responsible Defendants, and all other appropriate sanctions.
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42
32.
Plaintiffs request leave of the Court for an evidentiary hearing on Sanctions that may be appropriate including the taking of testimony to support court findings related to all sanctions.
33.
Given all of the above facts, circumstances, and attached exhibits, Plaintiffs’ counsel submit that all of the Plaintiffs have been prejudiced by Defendants’ failure to place a litigation hold on emails, by the other significant delay tactics detailed by Mr. Shoemaker in his affidavit filed in support of this renewed motion, and that appropriate sanctions should be entered against Defendants herein.
FURTHER YOUR AFFIANT SAYTH NOT.
Dated: 3/5/08 s/ Matthew A. Engel__
Matthew A. Engel
Subscribed and sworn to before me
this 5th day of March, 2008.
s/ Bradley A. Kirscher
Notary Public
Under Seal
Case 0:04-cv-02632-JNE-SRN Document 184 Filed 03/05/2008 Page 42 of 42
DISTRICT OF MINNESOTA
Frank J. Steinhauser, III, et al., Civil No. 04-2632
JNE/SRN
Plaintiffs,
v. AFFIDAVIT OF
JOHN R. SHOEMAKER
City of St. Paul, et al., IN SUPPORT OF RENEWED
MOTION FOR 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.
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 183 Filed 03/05/2008 Page 1 of 44
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. I am submitting this affidavit in support of Plaintiffs’ joint renewed Motion for Sanctions against Defendants in all three of the consolidated cases.
2.
I am also requesting leave of the Court to file further supplemental affidavits in support of this renewed motion for sanctions up to 14 days prior to the April 14, 2008 hearing on this renewed motion, for the following reasons: Plaintiffs filed and served their 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 until 4:40 p.m. Friday, February 22, 2008. Mr. Engel details in his affidavit the difficulties that were presented for Plaintiffs’ counsel as a result of the outrageous delay by Defendants’ counsel in “redacting” the evidence of “private data” and further delay in delivering that redacted email documentation to Plaintiffs’ counsel for use before this Court on the renewed motion for sanctions.
2
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3.
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) with over one-third of the data in unlabeled format, we need further time up to 14 days prior to the hearing date 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.
4.
Defendants delays in providing emails, redacted emails, City documents related to its special relationship with the St. Paul Public Housing Agency (“PHA”), TISH inspection studies, and other delay tactics as more fully set forth below, and Defendants recent filing of their Motion to Strike this renewed motion for sanctions after their most recent delay, have required Plaintiffs’ counsel to file these affidavits before the 14 day time period required under Local Rule 7.1.
5.
Plaintiffs originally filed their Joint Motion for Sanctions in June 2007 (Doc. No. 102 – Steinhauser, et al.; Doc No. 79 – Harrilal, et al.; and Doc. No. 73 – Gallagher, et al.), supporting affidavits of Plaintiffs’ counsel with exhibits (see for example, Affidavit of John R. Shoemaker, Doc. No. 114, Steinhauser, et al hereinafter referred to as “First Shoemaker Aff.”) and Joint Memorandum of Law (Doc. No.116, Steinhauser, et al.). On August 20, 2007, the Court held a hearing on Plaintiffs’ joint motion. On November 13, 2007, the Court issued
3
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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.
6.
Pursuant to the Court’s directions, Order p. 10, counsel for the parties met and conferred and entered into a stipulation for a protective order regarding production of “attorney’s eyes only” review and selection of emails restored from the City’s disaster backup tapes; the stipulation included provisions for redaction by Defendants’ counsel of “private data” from the selected emails, delivery of the redacted emails to Plaintiffs counsel and then use of said redacted emails as Plaintiffs deemed appropriate in this litigation. The Court approved the stipulation.
7.
In addition, pursuant to the Court’s directions, Plaintiffs’ counsel inquired of Ms. Seeba whether the City had any of the TISH housing inspection reports for single family and duplex homes for 2001, 2002 and 2003 in its possession in either paper or electronic format or if the City had the authority to require the TISH inspectors to re-file their reports from 2001 through 2003. Ms Seeba informed Plaintiffs’ counsel that the City did not have any of the 2001 through 2003 TISH reports and could not replace them. See Exhibit #1 attached hereto.
4
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8.
Ms. Seeba had informed Plaintiffs and the Court that the City’s retention policy for the City’s copy of TISH reports was to maintain the City’s copy for a three year period. Following the August 20, 2007 sanctions hearing, Ms. Seeba stated to Plaintiffs’ counsel that the City only required the licensed TISH inspectors to maintain their TISH reports for a period of three years. Ms. Seeba cited the Truth-In-Sale of Housing Evaluator Guidelines. See Exhibit #2 attached hereto.
9.
Pursuant to directions from the Court, counsel for the parties contacted the attorney for PHA in December 2007 concerning documents that could be produced to Plaintiffs. Following Plaintiffs’ service of a subpoena on PHA on January 14, 2008, Plaintiffs obtained documents from PHA on February 19, 2008. PHA has agreed to produce to Plaintiffs additional documents on March 6, 2008.
10.
The Court in its Order also directed the parties to meet and confer regarding which of the documents “produced anonymously” to Plaintiffs could be authenticated by Defendants. There was no need to meet and confer on this issue because in September 2007 Plaintiffs had served their Requests for Admission on Defendants related to all of these documents. Defendants responded in October, 2007.
5
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11.
I am now submitting this affidavit to supplement the original record Plaintiffs filed with the Court in support of their original motion for sanctions heard on August 20, 2007, and to provide the Court with evidence from Plaintiffs on the issue of “prejudice” that the Court determined was “premature” at the time of the August 2007 hearing.
12.
In Plaintiffs’ original motion for sanctions, four categories of evidence were in contention: (1) anonymously produced documents that appeared to be City documents not produced by Defendants during discovery; (2) City documents related to the City’s relationship, contractual or otherwise, with PHA; (3) 2001, 2002 and 2003 TISH inspection reports for single family and duplex homes maintained in a central location at the NHPI office headed by Defendant Dawkins; and (4) electronic documentation including emails of Defendants and other “key” officials and employees.
13.
CITY DOCUMENTS PRODUCED ANONYMOUSLY FOLLOWING CLOSE OF DISCOVERY. Plaintiffs submit that they can now demonstrate to the Court that 57 out of 58 documents Plaintiffs’ counsel received from an anonymous source following the close of discovery on March 2, 2007 were in fact “drafted” by Defendants or “received” by Defendants, as required by the Court’s Order. I have not included in the 58 documents, two letters for which Ms. Seeba has asserted the attorney-client privilege.
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The Court in its Order, page 8, stated: “A motion for discovery sanctions can be entertained only if and when Plaintiffs could establish that documents they received from any such anonymous source were drafted or received by Defendants or otherwise within their possession, custody or control” (emphasis added).
14.
I have attached hereto Defendants’ Response to Plaintiffs’ Second Request For Admissions in Steinhauser, et al., Exhibit #3, and Defendants’ Response to Plaintiffs’ Second Request For Admissions in Harrilal, et al., Exhibit #4. Additionally, attached as Exhibit #5, are the documents subject to the Requests for Admissions with Bates numbers as set forth in Exhibits #3 and #4, except for 045021-023, 045162-163 and 045164-168, which have been removed due to Defendants’ claim of privilege. See also First Shoemaker Aff., paras. 62-73 (details of anonymously produced documents and related deposition testimony).
15.
Defendants had claimed that these anonymously produced documents were not in their possession and therefore could not be produced. Yet, when faced with Requests for Admission following the August 2007 sanctions hearing, Defendants admitted that all of these documents, except for one, were either created by City employees or received by City employees.
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16.
The nature of the non-disclosures and volume of non-disclosures of relevant documents by Defendants and their counsel is shocking especially considering what certainly ought to be a higher standard of conduct required of City officials and employees as public servants, and their attorneys before this Court.
17.
Plaintiffs were prejudiced by non-disclosure of these anonymously produced “City documents” as these relevant City documents were not produced by the Defendants during the discovery period for use in depositions and as a basis for further interrogatories and document requests. See also First Shoemaker Aff., paras. 64-69, 71-72.
18.
Due to the City’s non-production of these anonymously produced “City documents” during discovery, Plaintiffs incurred additional costs and fees in documenting this egregious behavior, in linking the behavior to other tactics of delay and obstruction by Defendants and their counsel, in preparing the sanction motion related to Defendants’ failures and in authenticating these documents. Because Defendants failed to produce all of the documentation subject to the Court’s Order until between February 12, 2008 (City documents related to PHA finally produced), and February 22, 2008 (Defendants finally returned the “redacted emails” Plaintiffs had selected from the “attorneys eyes only” data),
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Plaintiffs were further prejudiced by the inability to conduct depositions the Court had authorized once all the documents were produced by Defendants, and to conduct other discovery related to the destroyed TISH reports.
19.
CITY DOCUMENTS RELATED TO ST. PAUL PUBLIC HOUSING AGENCY. Prior to the hearing on Plaintiffs’ motion for sanctions in August 2007, Defendants had produced code inspection records for PHA rental properties and public versions of police call record summaries for PHA properties. However, Defendants had failed to produce any other documentation of the City’s relationship with PHA, including “Cooperative agreements,” “police service agreements,” and other agreements the City had and continued to have with PHA. Defendants had also failed to produce all other documents related to PHA rental properties that Plaintiffs had repeatedly requested.
20.
Because Defendants have consistently claimed that the definition of a “problem property” varies from neighborhood to neighborhood across the city but includes tenant behavior issues at properties, and “problem properties” are targeted for heightened code standards and enforcement by Defendants, Plaintiffs sought all documents the City possessed related in any way to PHA, including documentation that would shed light on the behavior problems continually occurring at PHA rental properties and in close proximity to those properties. It was this type of documentation that Plaintiffs repeatedly were forced to request from Defendants month after month during all of 2007.
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21.
Following the August 20, 2007, hearing, despite repeated requests from Plaintiffs, Defendants and their counsel continued to refuse to produce the documents it had in its possession related to the cozy relationship between the City and PHA and the troubling behavior issues at PHA rental properties.
22.
A large batch (634 pages) of City documents related to the City’s relationship to PHA was finally produced by Defendants on January 25, 2008, and February 12, 2008. See Exhibits # 6 - # 15 attached hereto (selected documents from those produced by the City on 1/25/08). Documents produced by Defendants on January 25, 2008, included Contracts for Supplemental Policing Services provided by Defendant City to PHA since 1991 whereby PHA has had the benefit each year of a platoon of City Police Officers protecting PHA properties, enforcing PHA leases, deterring criminal behavior by PHA tenants and guests and third parties, and generally attempting to keep the peace in PHA’s family developments. On February 12, 2008, Defendants produced additional City documents related to the City’s relationship to PHA – these documents consisted of City Police Department Crime Reports for PHA rental properties. All of these documents produced on January 25, 2008, and February 12, 2008, were “City documents” not “PHA documents”.
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23.
Plaintiffs had made proper and repeated requests for this City-PHA evidence relevant to Plaintiffs’ claims since the end of 2004. Following filing of the Steinhauser Complaint wherein Plaintiffs raised the issue of the City’s relationship with PHA (see First Shoemaker Aff., paras. 10, 11), Plaintiffs in both Steinhauser and Harrilal had made repeated requests throughout 2007 to Ms. Seeba and her clients for all city documents related to PHA. See First Shoemaker Aff., para. 18 - all documents related to communications between City and PHA; para. 19 - all documents “related in any way to” PHA; para. 45 - Exhibit 25, page 6 “Defendants’ Response to Plaintiffs Harrilal and Johnson’s Request for Production of Documents,” No. 19 (“Cooperative Agreements between PHA and City and all other written agreements between” same”), No. 20 (“documents related to the PHA’s payments to the City in lieu of taxes”), No. 21 (“All documents related to the City’s provision of police services to PHA’s rental properties … ACOP, Officer in Residence program, and all other policing services for PHA rental properties”) and No. 22 (“All other documents of any kind that the City has that are related to PHA’s rental properties”); and para. 46.
24.
Defendants and their counsel failed to comply with the Court’s Order of November 13, 2007, by failing to produce to Plaintiffs City documents related to PHA until just shortly before the deadline for filing their summary judgment motion papers with this Court. This purposeful delay has further prejudiced Plaintiffs.
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25.
Prior to filing the sanctions motion, Plaintiffs’ counsel had on May 15, 2007, demanded in writing that Defendants and their counsel produce the relevant City documents related to all aspects of PHA’s rental properties. See Exhibit #16 attached hereto, page 4 of a May 15, 2007 letter from Plaintiffs’ counsel to Ms. Seeba.
26.
On May 31, 2007, Ms. Seeba responded to Plaintiffs’ request by stating “No responsive documents have been found” regarding “Cooperative Agreements between PHA and the City.” See Exhibit #17 attached hereto. Defendants responded further at that time by stating, “All city documents related to specific PHA rental properties are contained in the NHPI, LIEP and Fire Prevention address files.” Exhibit #17. As Plaintiffs subsequently discovered, these statements were blatantly false and designed to keep Plaintiffs from learning the true nature of the City’s close relationship with PHA and to keep the cover on the serious behavior problems occurring at PHA rental properties, the type of behavior Defendants had claimed was occurring at Plaintiffs’ properties and thereby justified their heavy-handed treatment of Plaintiffs rental properties and “protected class” tenants, those Defendant Dawkins called, “the down-trodden”. See Exhibit #41 attached hereto.
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27.
As a result of the continued efforts by Defendants and their counsel to obstruct the right of Plaintiffs to obtain and review public documents, Plaintiffs incurred substantial costs and attorneys fees and much frustration. This most certainly was Defendants’ goal.
28.
I wrote many additional letters to Ms. Seeba during 2007 and into early this year (as did Mr. Engel) requesting that she and her clients finally provide us with all of the City’s documents related to PHA. Two letters I forwarded to Ms. Seeba seem now to be especially illustrative of how Defendants repeatedly refused to produce the relevant documents even in face of written evidence presented by me to Ms. Seeba that the City did in fact have such documentation in its possession.
29.
On June 7, 2007, I wrote to Ms. Seeba again requesting the City’s documents related to PHA in every respect. See Exhibit #18 attached hereto. I informed Ms. Seeba that Mr. Engel and I had not been able to locate any of the requested documents in any code enforcement files provided to us by the City to that point in the litigation. I informed Ms. Seeba that I was able through a search of City Council minutes to locate repeated references to agreements the City had with PHA and the cooperative relationship between the City and PHA over many years. I enclosed with my June 7, 2007 letter, four (4) separate documents from the City’s website, referring to police service agreements between the City and PHA.
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I also enclosed four other City documents referring to the City’s partnership with PHA in a number of areas. These eight documents had not been produced by Defendants but were generated by Plaintiffs’ research. Once again, I asked Ms. Seeba to produce copies of all documents related in any way to all police service agreements including all documents related in any way to the “ACOP” community policing program. Defendants again failed to produce the documents requested.
30.
The Court during the hearing on August 20, 2007, and subsequently in its Order dated November 13, 2007, pages 5 and 6, footnote 3, instructed Ms. Seeba that her clients had an obligation to produce documents in their possession related to PHA. The Court specifically stated that, “Defendants would be obligated to produce any responsive relevant PHA documents that nevertheless happen to be within their possession, custody or control.” The Court further stated, “But, if Defendants have such documents (PHA 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.” Order, p. 10.
31.
For some reason the Court was under the misimpression that the City did not have any “city documents” related to PHA, but may have only had “PHA’s documents”.
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Defendants and their counsel knew the difference and purposefully deceived the Court on the issue both in their written submissions to the Court and during oral arguments. See Defendants’ Opposition to Plaintiffs’ Memorandum of Law in Support of Motion for Sanctions, page 2, lines 14 and 15, where Ms. Seeba wrote, “Plaintiffs believe the City has not disclosed PHA documents allegedly in the City’s possession.” I had repeatedly informed Ms. Seeba that Plaintiffs were requesting “City documents related to its relationship with PHA. As the Court shall soon see, there is a significant difference.
32.
Subsequent to the August 20, 2007, Sanction hearing, Ms. Seeba under letter dated September 20, 2007, forwarded to Plaintiffs’ counsel a copy of the “Contract for Supplemental Police Services” for fiscal year 2006 and a copy of a second such contract for fiscal year 2008. Exhibit #19 attached hereto. The budget narrative and PHA dwelling leases were attached to each contract. Ms. Seeba provided no explanation for the failure to provide copies of similar contracts from City files for previous years. These contracts state that the special policing contracts between the City and PHA had been in place since 1991. Ms. Seeba also failed to explain why the documents referred to in the Contracts were not provided to Plaintiffs.
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See fiscal year 2006 Contract, p. 2, para. D., “City agrees to collect and provide police workload data in public housing development and crime statistics;” para. E., documentation regarding police personnel appearing as witnesses for PHA in various administrative, civil dispossessory hearings and civil court proceedings related to criminal or quasi-criminal conduct on or near public housing involving any PHA resident or household or guest; para. F., “meetings shall occur at least quarterly;” p. 3, #1 “police and security reports;” p. 3, #3 “quarterly progress reports and evaluations of services requested and provided under this Contract;” and p. 3, #7, “calls for service” reports of criminal activity; p. 6, Section 4, A, “”public incident reports,” arrest reports or other public documents which document or substantiate actual or potential criminal activity in or connected with the public housing developments;” p. 6, Section 4, B, “Reporting. The Police Department will provide reports,…to PHA describing the activities supported by PHA funds. These reports may be provided monthly, quarterly or as otherwise requested by PHA …” p. 8, Section 8, Audit reports. Many of these reports and related documents have not yet been provided to Plaintiffs by Defendants including applications by City police personnel for criminal warrants related to PHA rental properties.
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33.
Mr. Engel forwarded a letter to Ms. Seeba on October 19, 2007, again requesting that she and her clients produce all the relevant city documents related to PHA. See Exhibit #20 attached hereto. At that time Mr. Engel informed Ms. Seeba the Contracts she had produced for 2006 and 2008 stated that the special policing program had been in place since 1991 and that all contracts should be provided as it was our understanding that federal authorities required the City to maintain copies of these contracts due to the City’s receipt of federal funding for the program.
34.
On November 21, 2007, when we had not received any further city documents related to PHA from Ms. Seeba, Mr. Engel and I wrote once again to Ms. Seeba demanding that she and her clients finally produce the relevant documents. See Exhibit #21, pages 3 and 4.
35.
On November 26, 2007, Mr. Engel and I met and conferred with Ms. Seeba over a number of unresolved issues including the City’s failure to produce “the City’s documents related to its relationship with PHA”. At that time, Ms. Seeba made assurances that she would “triple and quadruple check” for City/PHA documents in the City’s possession.
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During that meet and confer, I referred Ms. Seeba to the signature page of the Contract For Supplemental Police Services” Contract No. 07-038 “ACOP FY2008, provided to Plaintiffs on September 20, 2007 and pointed out to her that the signature block of that contract included representatives from four (4) city departments and a fifth signature from her own City Attorney’s Office. I pointed out to Ms. Seeba that it was obvious to me that any one of those City departments would have a copy of all of the previous contracts since 1991. I also suggested that she ask the City Clerk or other person authorized to maintain “city documents” to produce the requested documentation. On November 29, 2007, Mr. Engel and I confirmed this discussion with Ms. Seeba by way of letter. See Exhibit #22 attached hereto.
36.
Ms. Seeba responded on December 6, 2007 by way of letter to Plaintiffs’ counsel (Exhibit #1) saying, “With regard to PHA documents, we have all discussed ad nauseam the necessity to have a meeting with the PHA’s counsel. I am shocked by Mr. Shoemaker’s characterization in his affidavit that I am attempting to get you to jointly contact the PHA’s attorney with me. I do not have to attempt to get you to do that, you both agreed many times that we needed a meeting with the PHA’s attorney. Furthermore, the Court in its Order stated that you should contact the PHA … Hopefully the PHA can assist you in obtaining documents that you want that the City has been unable to provide you.”(emphasis added).
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Ms. Seeba’s letter should have stated, “Hopefully the PHA can assist you in obtaining documents that you want that the City has been unwilling to provide to you.” Another interesting version of that portion of her letter would have been, “documents my clients have been unwilling to allow me to provide to you.”
37.
In all seriousness, how can this Court authorize such blatantly disrespectful conduct toward fellow officers of this Court? Moreover, is this pattern and practice of obstructive tactics by municipal officials and their attorneys before this Court consistent with principals of fairness and justice? Mr. Engel and I have attempted through this litigation to resolve discovery matters without involvement of the Court, appreciating our duty as officers of this Court to work together with opposing counsel and to use all available tools to resolve disputed matters before filing motions and using the Court’s limited resources. I decided to try one more time to obtain from the City the requested documents I knew the City had in its possession before I again raised the issue with the Court.
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38.
On January 10, 2008, I wrote again to Ms. Seeba attempting once again to obtain her compliance with the Court’s Order. See Exhibit #23 attached hereto and attachments. In my letter, I specifically referred to 16 separate exhibits marked #1 through #16 attached to my letter, exhibits consisting of printouts from the City’s website of Approved City Council Minutes and Resolutions spanning from March 3, 1999, through March 23, 2005, wherein the Council had acted on contracts and agreements with PHA over a wide range of issues including special policing contracts, drug elimination programs, and exemptions for PHA’s rental properties from certain of the City’s rental property over-site programs. I received no response from Ms. Seeba to this letter.
39.
In the search for documents relevant to Plaintiffs’ claims regarding the City’s preferential code enforcement treatment of PHA compared to the City’s heavy-handed, confrontational approach used against Plaintiffs’ and other providers of low-income, minority occupied housing in the City, I prepared a document request to accompany a subpoena to be served upon PHA. Drafting the subpoena duces tecum was a great deal more demanding and time consuming because the City and its attorney would not produce its documents. This resulted in considerable extra time and fees for Plaintiffs.
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40.
On January 11, 2008, I served a Notice of Deposition of PHA on Ms. Seeba along with a copy of the subpoena to be served on PHA for document production and deposition; attached to the subpoena was a five page request for production of documents, with 28 separate document requests. See Exhibit #23 A, attached hereto. Document Requests Nos. 1, 1 (A), 1 (B), 2, 5, 8, 25, 26, and 28 were necessary to be requested of PHA because Defendants refused to provide Plaintiffs with those documents.
41.
Most disturbing to me was the fact that officials of the City and their attorneys forced PHA and its officials, employees and attorney to expend their already limited resources to look for the documents, organize the documents and produce the documents that the City should have provided to Plaintiffs years ago. This is no small matter. PHA officials certainly have more pressing business than to do the City’s work for them.
42.
On January 14, 2008, the subpoena was served upon PHA with a copy to PHA’s attorney, Laura Pietan.
43.
On January 25, 2007, during counsel’s meeting with PHA’s attorney Laura Pietan, Ms. Seeba finally produced 406 pages of documents related to the City’s relationship with PHA over the years, including City contracts with PHA.
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Also included were Contracts for Supplemental Police Services on PHA’s family development rental properties from 2000 through 2005, special police contracts for one of PHA’s hi-rise rental properties that had serious criminal behavioral problems, documentation related to City-PHA drug elimination programs for PHA properties, City Council documents, and correspondence from neighborhood groups, and others.
44.
On January 25, 2008, PHA’s attorney, Ms. Pietan in meeting with Ms. Seeba, Mr. Engel and affiant, stated that certain of the documents set forth in the subpoena duces tecum served on PHA were not generated by PHA but rather by the City of St. Paul. These included various police reports referred to in the Contracts for Supplemental Policing Services.
45.
On February 12, 2008, Mr. Engel and I received another batch of documents consisting of 228 pages from Ms. Seeba which included various crime reports created and maintained by the City Police Department on PHA’s rental properties. We have not received any further police department, behavior related documents for PHA properties from Ms. Seeba.
46.
On February 19, 2008, Plaintiffs conducted a deposition of PHA’s designated representative, Al Hester and inspected PHA’s documents and made arrangements for obtaining copies while on site at PHA’s Office in St. Paul.
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Plaintiffs counsel discovered significant “City documents” within PHA’s files including written communications spanning over decades between the City and PHA, on many issues, including the differences between federal code standards and the City’s heightened code standards, the adverse effect on affordable housing and the “protected class” through implementation of the City’s heightened code standards, and HUD’s denial of PHA’s application (pressured by certain City officials) to HUD for authority to change the federally mandated Housing Quality Standard (HQS) applicable to Section 8 privately owned low-income, federally funded rental properties for the City’s heightened code. HUD’s decision expressly referred to the adverse effect on affordable housing that application of heightened code standards would surely have. Plaintiffs Counsel also discovered additional reasons why Defendants had not been willing to part with their City documents related to PHA. Over 36 gangs were recognized as living in PHA rental properties, PHA’s federal funding was continuing to be cut, tenant, guest and third party behavior problems continued to be a significant problem for PHA, its tenants and the City and its residents, and the City was increasingly expending more City funds to police PHA properties.
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This was all occurring between the City and PHA while Defendants labeled Plaintiffs as “problem property” landlords, implemented the heightened code standards against Plaintiffs that HUD said would adversely affect affordable housing in the City and abused the City’s police powers in crushing the private owners of low-income rental properties and their “protected class” tenants.
47.
Defendants’ delay throughout 2007 in producing the City’s documents related to PHA continued Defendants’ pattern of victimization of Plaintiffs through actions intended to harass Plaintiffs and their counsel. Defendants’ actions delayed these proceedings and Plaintiffs’ right to a trial by jury, wasted the litigation resources of Plaintiffs, prohibited Plaintiffs from being able to conduct other necessary discovery, raised the costs and fees of Plaintiffs, and unnecessarily incurred the Court’s time. Defendants’ actions in defiantly refusing to produce the subject City documents related to its relationship with PHA was intended to deprive the Plaintiffs and their counsel of key evidence supporting Plaintiffs’ numerous claims, slowly drain the Plaintiffs of their resources to continue this lawsuit, and to slow the onslaught of other rightful claims against Defendants by victims similar to Plaintiffs and their tenants.
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48.
Finally, it is clear why Defendants have conducted the “hide the ball” litigation tactics when it comes to PHA’s rental operations in the City. See Exhibit #24, attached hereto, a six (6) page email August 27, 2004, from Chris Rider, City Council employee to Councilmember Pat Harris on PHA’s hi-rise rental property located at 1085 Montreal Avenue in the City. Here is an example of very serious complaints by PHA tenants, documented over many months, to City officials concerning the health, safety and welfare of PHA tenants and their guests. The City Council’s response to the tenant, “PHA, although affiliated with the City, is not governed by us per se. However, I told him it would be possible for us to make certain that his concerns are heard by PHA staff.” (emphasis added). Where were the City’s concerns about this shocking set of complaints? This is but one example of the City’s lack of concern for PHA tenants - a far cry from the “concern of City officials” at any time and every time a complaint is made concerning privately owned low-income rental housing.
49.
TISH INSPECTION RECORDS. The Court in its Order dated November 13, 2007, page 8, and footnote 5, stated that,
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“the Court cannot presently conclude on this record that the failure to preserve the TISH reports beyond the three years provided in the document-retention policy constitutes bad faith or willful spoliation.” Footnote 5, “This is particularly true insofar as TISH reports are generated by property inspectors who are independent of Defendant City. Defendants presumably would have little if any logical motivation to attempt to destroy evidence that, as they have maintained, is generated and retained by such independent inspectors and thus is incapable of being reliably destroyed by the City, which would possess at most only its own copies.”
50.
Attached hereto as Exhibit #2, is a partial copy of the City’s Truth-In-Sale of Housing Evaluator Guidelines, cover page and pages marked “i” through “iv”. On page iv of the Guidelines, under the heading, “Administrative Duties,” No. 4, the City states that, “For a minimum of three (3) years from the date of an evaluation each evaluator must be able to produce a paper, hard-copy, of any and all reports requested by the Board”. Defendants have claimed that the City’s retention policy related to its copies of the TISH reports was also a three year period. The City’s three year retention period covering licensed inspectors’ own copies of TISH reports demonstrates that Defendants could be reasonably assured that the City’s destruction of the centrally located TISH reports would certainly create a very difficult task for Plaintiffs and their counsel in both time and attorneys fees in attempting to obtain TISH reports from private inspectors.
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51.
The Court’s Order provided that the Plaintiffs could subpoena the TISH inspectors for copies of their records, “with the costs being borne by the City.”
52.
On December 6, 2007, Ms. Seeba provided to Plaintiffs’ counsel a list showing that there were 45 TISH inspectors under the City’s current licensing program.
53.
In order to attempt to replace the 15,000-18,000 TISH inspection reports for the years 2001 through 2003, that had been in storage during this litigation at the City’s NHPI office under the control of Defendant Dawkins and his TISH manager Connie Sandberg, Plaintiffs’ counsel was faced with preparation of 45 subpoenas, service of the subpoenas on each of the inspectors, handling any objections to the subpoenas, preparing depositions on written questions or for oral depositions, travel costs to the TISH inspectors various offices across the Twin Cities Metro area and document production from each inspector.
54.
The Court’s order provided that the costs of subpoenaing the TISH reports from the inspectors would be the City’s responsibility. The Order did not provide for deposition transcript expenses or for the attorneys fees involved in such a cumbersome and time consuming process at the end of almost four years of litigation while significant other litigation projects (e-mail review and City documents related to PHA) were necessary due to Defendants’ obstructive litigation tactics.
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55.
Ms. Seeba and her clients have repeatedly claimed that the TISH reports are not used in code enforcement. See Defendants’ Opposition to Plaintiffs’ Memorandum of Law in Support of Motion for Sanctions, Doc. No. 100 – Harrilal, et al., page 3, “The City does not use the TISH report as a means of code enforcement” and “The retention of the reports has nothing to do with the City’s code enforcement efforts”. Defendants’ Memorandum of Law, page 3, footnote 1, states “The City’s hard-wired smoke detector ordinance is the only enforcement that is considered by the TISH evaluators.”
56.
Defendant Richard Lippert, Harrilal, et al, case, provided the Court with his affidavit in opposition to Plaintiffs’ motion for sanctions, Doc. No. 125 (Steinhauser, et al.), wherein he stated, “The TISH reports are not utilized for any code enforcement function but are retained by the City because it issues the TISH evaluator licenses.”
57.
The City makes affirmative statements concerning its TISH program and ordinance requiring a TISH inspection on single family and duplex homes for sale in the City. See Exhibit #25, City’s website page, three pages from 7/26/06 attached hereto. Again the City tells the public that “With the exception of the hard-wired smoke detector ordinance, the City is not going to use the report as a means of code-enforcement.” Page 2, website printout.
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58.
Defendants’ statements are false. Attached hereto as Exhibit #26 is a one page City code enforcement document with title, “INSPECTION REQUEST” dated 9/4/07 signed by “Yannarelly” a City code enforcement officer who prepared the report on 734 Bradley St., a residential structure, “2 story wood frame duplex” that had been, “Referred by: field find”. Inspector Yannarelly’s comments indicate that he had not gained access to the interior of the property, yet he specially stated that the “TISH report on file cites numerous hazardous deficiencies.” Yannarelly’s Inspection Request form shows he made a determination that the duplex should be categorized as a vacant building “Category: II” which Defendants have admitted then subjects the property to an extensive “code compliance inspection” and “certificate of code compliance” before reoccupying the property. This “code compliance inspection” process essentially removes the grandfathering protections and subjects the property to heightened, current day codes. Defendants also demand the “code compliance inspection and certification process” without any authority, and during the directorship of Dawkins from 2002 to 2005, without his knowledge and approval. Defendants frequently illegally demand this “code compliance” on properties with common code deficiencies resulting from tenant damage and not the result of deferred maintenance and owner neglect.
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This document shows that the TISH report on file was used by inspector Yannarelly for “code enforcement” purposes, contrary to Defendants’ claims and contrary to Defendant Lippert’s sworn affidavit recently submitted to this Court. Contrary to Ms. Seeba’s representation to the Court, the TISH reports are retained by the City for just these special code enforcement purposes – to give the inspectors an “inside view” when they are unable to gain entry to the interiors of homes in the City.
59.
But, there is another reason the City maintains TISH reports at its code enforcement office: this is so in order that code enforcement personnel may conduct studies of the TISH reports with the goal of assisting the City Council in enacting further regulations of the private housing market in the City.
60.
I was provided with a copy of a disk of emails of City employee Connie Sandberg, one of the leading employees of the City’s TISH program, produced by the St. Paul City Attorney’s Office on behalf of the City in its litigation with TISH inspector Ron Staeheli. These emails were provided to Mr. Staeheli by Assistant City Attorney, Judy Hanson. Mr. Engel referred to one of these emails during the sanctions hearing on August 20, 2007, a copy of which he later provided to Ms. Seeba.
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61.
In review of the emails of Ms. Sandberg, I discovered that the City’s Director of the Department of Safety and Inspections, Bob Kessler, Ms. Sandberg as manager of the TISH program, and certain other City employees, had during 2006 conducted at least two separate studies of the City’s 2005 TISH reports as part of a proposed change in the City’s ordinance that would require serious code violations to be repaired prior to sale of the properties. City officials called the proposal, “adding teeth” or “putting teeth” into the TISH program.
62.
From these City emails, I determined that one such study had involved pulling 381 TISH inspection reports from the 2005 TISH reports on file at the City’s TISH office in order to have a representative sampling of the condition of single family and duplex homes in the City. Mr. Kessler reported to the City Council on August 25, 2006, that the study showed that “as many as 60% of all properties sold in the city in 2005 had serious code violations.” These same City officials and employees conducted a separate study of 125 TISH reports of rental registration properties from 2005 to evaluate the level of deficiencies. Defendants had not produced these studies to Plaintiffs even though Defendants and their attorneys had known for many years that Plaintiffs had claimed that they were targeted for code enforcement while adjacent properties with similar conditions were not targeted and that the general conditions of most properties in the City were similar. This deliberate lack of disclosure was once again all part of the “hide the ball” tactics by Defendants – only disclose the documents that the Plaintiffs can find.
31
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63.
I forwarded a letter to Ms. Seeba on January 11, 2008, informing her of my discovery that her clients had conducted in 2006 an evaluation of 2005 TISH reports and that her clients had concluded that 60% of the single family and duplex homes had serious code violations. I requested a copy of these two reports and documents of all other studies. See Exhibit #27 attached hereto.
64.
On January 28, 2008, Ms. Seeba wrote a letter to Plaintiffs’ counsel stating, “We discussed your January 11, 2008 request for a 2006 evaluation by Connie Sandberg of 2005 TISH reports. As I stated in my earlier correspondence. Connie Sandberg does not have anything responsive to this request. However, we discussed emails that you may have identified that may help locate this document. I understand that you will forward me these emails so that we may make another attempt to figure out whether or not this document exists, and if it does, locate it and provide it to you.” See Exhibit #27A attached hereto.
65.
On February 5, 2008, I wrote a letter to Ms. Seeba, Exhibit #27B attached hereto, enclosing a copy of Bob Kessler’s written remarks to the City Council. See Exhibit #31 attached hereto.
66.
Because of my concern over the City’s “hide the ball” tactics, I decided not to provide Ms. Seeba or her clients with Ms. Sandberg’s own emails from 2006. See Exhibits #28 to #36 attached hereto. How Ms. Sandberg could not have anything responsive to Plaintiffs’ request for two significant studies conducted with her direct assistance, is remarkably revealing about the nature and character of the City’s current officials and employees.
32
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67.
On February 7, 2008, Ms. Seeba provided documents related to the TISH studies. See Exhibit #37 attached hereto. These documents were clearly within the scope of Plaintiffs’ requests for documents in all three cases herein. These relevant documents were not provided to Plaintiffs after Plaintiffs discovered the studies had been conducted and reports prepared, and had specifically requested Defendants to produce the reports. Only after Plaintiffs showed Defendants that Plaintiffs in fact had a document referring to the studies and report, did Defendants provide the report documentation. This is just one example of the “hide the ball” tactics by Defendants and their counsel throughout this litigation. Again these relevant documents were provided to Plaintiffs almost one year after the close of discovery on March 2, 2007. Plaintiffs now have the reports but without opportunity to examine Mr. Kessler, Ms. Sandberg and others who conducted the study and who could explain the details of the reports. Again, the conduct of Defendants and their attorneys have prejudiced Plaintiffs and has been designed to further victimize them in this Court by hiding the truth.
68.
EMAIL RESTORATION, SELECTION, PRODUCTION AND REVIEW. Mr. Engel and I have conducted review and analysis of the emails restored by the Defendants and those emails Defendants were unable to restore for a demonstration of any prejudice that has resulted to Plaintiffs from Defendants failure to place a “litigation hold” on their emails and from destruction of emails.
33
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69.
Mr. Engel and I have conducted review of the two batches of email data produced by Defendants on December 10, 2007 and on January 9, 2008. Mr. Engel has attached to his affidavit an email analysis spreadsheet showing that Defendants’ email restoration produced very few emails for the time period of 2002-2004 (except for a handful of emails, none of which relate to Plaintiffs) or for any periods prior to 2002, except for isolated emails of no significance to the claims of Plaintiffs or issues presented herein.
70.
When Defendants finally produced their first batch of restored emails on December 10, 2007, Mr. Engel and I discovered that Defendant Dawkins’ email box consisted of merely 5.69 megabytes of data covering his 4 years of employment with the City as Director of the City’s N.H.P.I. department. This is a shockingly small amount of emails that have been restored when one considers that the emails that were produced for Mr. Dawkins demonstrate that he was using email as a significant means of communication with a large number of City officials, council members, employees, neighborhood representatives, other citizens, interested officials from outside Minnesota and others. His claims that he rarely used email as a means of communication is truly unbelievable.
34
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71.
The incredibly small size of restored Dawkins’ emails leads any one with common sense to believe that his emails were either deleted sometime after he received Steinhauser’s formal notice of claim from Attorney Patricia Whitney in 2003, after he was served with the Steinhauser, et al. Summons and Complaint in May 2004, after the filings of Harrilal, et al. and Gallagher, et al. in March and July 2005, respectively, or before he left office in December 2005. Plaintiffs discovered an interesting email concerning Dawkins computer data, including his groupwise email accounts, network and home directory; this email was within the Connie Sandberg email data produced to Ron Staeheli. See Exhibit 18, attached to the Affidavit of Matthew Engel submitted in support of the renewed motion for sanctions. In this email, the City Information Technology employee asks Connie Sandberg for permission to delete Dawkins emails accounts. Dawkins as a licensed attorney surely understands the significance and impact of written evidence and the requirement to place a “litigation hold” on all relevant evidence as well as evidence that could lead to relevant evidence. He had to have known that correspondence, emails, and TISH inspection records of his office were required to be saved and not destroyed through normal document retention and destruction policies, once he and the City had received notice of claims and, certainly following commencement of this litigation against Defendants.
35
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72.
The process by which the emails were produced by Defendants to Plaintiffs after being restored from backup tapes was agreed to by Plaintiffs after repeated representations by Ms. Seeba in early 2007 that the City and its officials and employees had emails from December 2005 forward but no emails for any period prior to that. See Plaintiffs’ Joint Memorandum of Law in Support of Motion for Sanctions, Doc. No. 116, Steinhauser, p. 4. Because Defendants claimed they had not retained emails for periods prior to December 2005, and for the most relevant time periods for the discriminatory code enforcement claims against Plaintiffs, between 1999 and mid-2005, Plaintiffs’ counsel agreed with Ms. Seeba’s email selection process: each employee and official would necessarily have to review their own restored emails for personal data for removal from the business emails to be produced. This self selection process is illustrated by Inspector Ed Smith’s June 19, 2007 email attached hereto as Exhibit #38. Ms. Seeba informed Plaintiffs’ counsel that it would take each employee approximately 80 hours to conduct their review and selection process before the remaining emails could be produced to Plaintiffs for their review. But for the representation by Ms. Seeba that no emails existed prior to December 2005, Plaintiffs would not have agreed to the selection process that would allow any one of the Defendants or others in positions of control, to filter exactly what email evidence actually flowed through to Plaintiffs from officials and employees’ individual email boxes.
36
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73.
After Plaintiffs filed their sanctions motion on August 6, 2007, Defendants changed their position and in their August 13, 2007 filing, stated, “Defendants have restored hundreds of thousands of e-mails dating back to the 1990s for Plaintiffs’ counsels’ review.” Defendants’ Memorandum of Law, p. 2, Doc. No. 100, Harrilal. Defendants further stated that, “Plaintiffs also erroneously claim that the City destroyed e-mails.” Doc. No. 100, p. 2. Defendants in their Memorandum of Law also misrepresented to the Court and Plaintiffs the nature and volume of emails “that are much older than 2005” and through the statement, “Steve Magner has emails dating back to 1999, Kathy Lantry has e-mails dating back to 2002…”. Memorandum of Law, Doc. No. 100, p. 4, Harrilal. In reviewing the restored emails produced by Defendants, Councilmember and Council President Lantry produced one email for the entire 2003 period, four emails for 2002, and only two emails for all periods prior to 2002. Many of the notices of claims from Plaintiffs were delivered to the City in 2003, and provided to the City Council shortly thereafter as is City policy. Defendant Magner, a supervisor of Defendant Martin, both members of the Problem Property Unit under Dawkins’ direction and control, has produced only a handful of emails for the entire period prior to 2004. Because Defendants produced the restored emails of Defendant Martin along with nine other employees in an unlabeled format, Plaintiffs’ we have not been able to make similar comparisons for her emails produced.
37
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74.
The almost complete lack of emails produced by Defendants for the periods prior to 2005, raises the issues of intentional deletion of emails by Defendants. If that email evidence would have been supportive of Defendants’ claims before this Court, surely they would have made every attempt to preserve the emails.
75.
Plaintiffs raised their objection to the misrepresentations by Defendants and the email selection process in counsel’s November 21, 2007 letter to Ms. Seeba. See Exhibit #21, p. 6.
76.
In my review of the restored emails of Defendant Yannarelly, I determined that from one-third to one half of all produced emails were non-business related, with many of the emails constituting “junk emails” involving “fantasy football” and travel agency generated materials. The earliest email in his email restoration was from November 15, 2004, with only one other email for 2004, a November 17, 2004 email. There were no earlier dated emails contained with Yannarelly’s restored email boxes. There were 12 emails in his email box for 2005, with many duplicates and almost all emails of a personal nature. Yannarelly had 26 emails for February 2006, 56 emails for March 2006 and 74 emails for April 2006 and similar volume thereafter each month.
38
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77.
In my review of the restored emails of Defendant Kalis, I determined that his email box contained three emails for 1999, one email for 2000, two emails for each year of 2001 through 2003, one email for 2004 and three emails for 2006. By way of comparison, Kalis had 47 emails from July 23, 2007 through July 31, 2007 and 42 emails between August 1, 2007 and August 9, 2007. His restored e-data was full of large picture files.
78.
In my review of the restored emails of Defendant Seeley, I discovered that there were no emails for periods prior to August 16, 2005 and many of the 62 emails for 2005 were either personal in nature, duplicates or related to non-code enforcement matters. Seeley’s email boxes contain 55 txt and html emails for January 2006, and 69 txt and html emails for February 2006.
79.
I conducted review of the restored emails of Defendant Reardon and determined that there was one email for 2001 (the earliest in the e-data for Reardon), two emails in 2002, ten emails in 2003, no emails for 2004, and 96 emails for 2005.
80.
Based upon my review of selected restored email boxes of various individuals, including those listed above, the email data has been sanitized and filler material left within to artificially inflate the size of the email boxes.
39
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81.
During my review of the City-Connie Sandberg email data produced to Ron Staeheli as referred to above, I located a January 23, 2007 letter from Charles Samuelson, Executive Director of the American Civil Liberties Union of Minnesota to Mayor Chris Coleman. See Exhibit #39, attached hereto. Mr. Samuelson expressed his concern that there did not appear to be anything in the City’s current ordinances or proposed ordinances that would prohibit inspections of interiors of homes in the City absent consent or a warrant. He stated, “Tenants in St. Paul should have the right to understand that the City is intruding upon their privacy and the reasons for the intrusion. The tenants of the rental properties need to be informed prior to the proposed inspection so that they can effectively exercise their rights under the Fourth Amendment. As it stands, the ordinance does not make it necessary to provide that notice to them, much less the opportunity to refuse entry absent an administrative warrant.” Exhibit #39.
82.
Plaintiffs Frank Steinhauser, Mark Meysembourg and Steve Johnson have each pleaded facts herein that their tenants had complained about Officer Koehnen’s bullying and pressure tactics to gain entry to their rental units without consent or administrative search warrants so that Inspector Lisa Martin could conduct interior inspections, leading in Steinhauser and Meysembourg’s rental properties to condemnations of the units and removal of the tenants, and in Johnson’s property, to a long list of claimed deficiencies under the heightened code standard the City was applying to low-income properties.
40
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83.
Mr. Samuelson’s word of caution to the City is particularly on point when one reads the email produced by the City as part of the email restoration process and production, marked as Exhibit #40 and attached hereto. In this July 3, 2006 email with attached email message dated June 30, 2006, Inspector Jackie Girling corresponded with Police Officer Koehnen. Girling referred to Koehnen being called out to a property “because of his size and influence that you would have over the owners”. Girling requested Officer Koehnen to give her a heads up in the future if he is going out to a property. She stated, “There was no need for you to go out there other than (what sounds like) Pam from Crime Prevention hoping that you could strong-arm these people with your “size and influence.” Exhibit #40.
84.
Exhibit #40 is the type of evidence that is available in Defendants’ emails from the 2006 time period, yet the relevant time period for Plaintiffs was 2002 through 2005 when their rental properties were targeted by Defendants and their tenants were subjected to Officer Koehnen’s “strong-arm” tactics in gaining entry for Problem Property Inspector Lisa Martin, her supervisor, fellow member of the Problem Property Unit, Defendant Magner, and Defendant Dawkins, who was obsessed with “getting inside” as many properties occupied by the “down-trodden” as possible.
41
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85.
One of Defendant Dawkins’ emails produced as part of the e-data restoration is dated January 12, 2004, and includes a statement by Dawkins: “However, the police tell me that the apartments will likely present problems again once warmer weather arrives – it’s just a mecca for lots of the down-trodden.” See Exhibit #41 attached hereto. Yes, Mr. Dawkins, any shelter is a “mecca” when you are one of the 10,000 families waiting for affordable housing in the City.
86.
The statement by Dawkins is consistent with his public statements to landlords and low-income housing advocates of getting rid of the bottom tier of tenants. The deletion of Dawkins emails substantially prejudices Plaintiffs because he and Mayor Randy Kelly were the architects of the “heightened code standards” in the City, and the heavy-handed approach with “get inside” and “force sale” policies that they implemented commencing in 2002 and continued through 2005 when they both left office. By failure to place a “litigation hold” on his emails, and those of his inspectors, Dawkins is now able to deny what he said during those years, years that many tenants and rental property owners recall as being filled with shock, pain, anger and despair as a result of being bullied and in some cases bulldozed out of their homes and properties.
42
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87.
One final example of the prejudice resulting from failure of Defendants to “hold” their emails from destruction, is found in Dawkins email of February 16, 2005 to Councilmember Lantry wherein Lantry responds, “Ed left a message saying he was unaware that Steinhauser had sold.” See Engel Aff., Exhibit 36. One email produced with Steinhauser’s name mentioned, yet Dawkins admits that he had frequent communications with Lantry, Lantry provided him with problem property lists, and five of Steinhauser low-income rental properties were on the lists.
88.
Due to the repeated failures of Defendants to produce the relevant City documents related to PHA until January 25, 2008, and February 12, 2008, and efforts of Plaintiffs counsel throughout 2007 and into this year to obtain those documents, Defendants admitted failure to place a “litigation hold” on electronic communications and documentation that caused delay of these cases for almost an entire year with extra costs and attorneys fees that would not have been incurred by Plaintiffs but for Defendants’ failures, admitted destruction of 15,000 to 18,000 TISH inspection records of single family and duplex homes during this litigation and failure to produce TISH studies conducted in 2006 that were available for production to Plaintiffs but were withheld from production, failure to produce a large volume of relevant documentation that Plaintiffs received from an anonymous source even though Defendants subsequently acknowledged that almost every document was created or received by an employee of the City, and other obstructive litigation 43
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44
tactics, I have been forced to expend many hundreds of hours of extra attorney time on behalf of Plaintiffs in Steinhauser, et al. and Harrilal, et al. since the close of discovery March 2, 2007.
89.
Plaintiffs jointly request that the Court order the full array of sanctions against Defendants as originally requested by Plaintiffs in their original motion for sanctions including immediate dismissal of Defendants’ motion for summary judgment, an award of fees and costs, fines against the responsible Defendants, and all other appropriate sanctions.
90.
Plaintiffs request leave of the Court for an evidentiary hearing on Sanctions that may be appropriate including the taking of testimony to support court findings related to all sanctions.
FURTHER YOUR AFFIANT SAYTH NOT.
Dated: 3-5-2008 s/ John R. Shoemaker
John R. Shoemaker
Subscribed and sworn to before me
this 5th day of March, 2008.
Tammy Petersen
Notary Public
Under Seal
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